The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits. A hearing was held on January 16, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits.

Background

In her Worker Incident Report, filed May 4, 2017, the worker reported that she injured her neck at work on May 3, 2017 when she "jerked back" to avoid being hit by an aggressive client. She further stated that "The whole motion jarred my neck. Within the next couple of hours I could feel swelling & spasming in my neck."

The worker attended an initial appointment with her family physician on May 4, 2017. The physician diagnosed the worker with neck spasm, greater on the right than the left, and referred her for physiotherapy. At an initial physiotherapy appointment on May 5, 2017, the physiotherapist diagnosed the worker with a sprain to her cervical spine, trapezius and levator scapula and recommended she remain off work for one week. The worker's claim was accepted by the WCB on May 8, 2017.

At a physiotherapy treatment on June 26, 2017, the physiotherapist noted continuing symptoms of neck pain, as well as a new symptom involving occasional pain radiating to the worker's upper right arm. An x-ray taken June 29, 2017 noted:

Minor narrowing of the C5-C6 disc in keeping with early degenerative changes. No other abnormality of the cervical spine is identified. There is no plain film evidence of a cervical rib at the C7 level.

A Doctor Progress Report for an examination on June 30, 2017 noted that the worker had numbness and tingling in her arm toward her wrist. The results of the June 29, 2017 x-ray were discussed with the worker and the worker was referred to a physiatrist. The worker attended an appointment with the physiatrist on July 13, 2017. The physiatrist conducted a nerve conduction study and opined:

1. Although there was no clear electrophysiologic evidence of cervical radiculopathy on the right side, but based on the positive Spurling test and the distribution of her symptoms I strongly suspect C6 nerve root irritation on the right side. 

2. There was no electrophysiologic evidence of entrapment neuropathies in the right radial, median, or ulnar nerves.

The physiatrist referred the worker for an MRI of her cervical spine. The stated impression from the MRI, which was done on July 26, 2017, was: "There is bilateral foraminal narrowing greater on the right at C5-6." At a follow-up appointment with the physiatrist on August 2, 2017 to review the July 26, 2017 MRI results, the physiatrist noted that the MRI imaging showed "central and left paracentral disc protrusion resulting in mild central stenosis. There is moderately severe foraminal narrowing, more on the right. The combination of the above-noted pathologies contribute to her symptoms of C6 nerve root irritation." The physiatrist stated that the worker would likely benefit from cervical traction through physiotherapy or a home cervical traction device.

On August 9, 2017, the worker attended for a call-in examination with a WCB physical medicine consultant. The WCB physical medicine consultant opined that the worker's initial diagnosis was "non-specific right top of the shoulder pain, through a possible minor top of the shoulder strain mechanism" and that the natural history was for resolution of the minor strain "over a three to four week period." The WCB physical medicine consultant further opined that:

…the worker's current presentation does not appear to be medically accounted for in relation to the workplace injury.

a) There were no current medical findings, no objective findings and a completely within normal limits neurologic and musculoskeletal examination. There were no findings or identified pathoanatomic diagnosis for the subjective reported right top of the shoulder pain.

…

There is no indication for further physiotherapy treatment. The claimant would be expected to be capable of continuing on with her current home exercise activities including range of motion on her own at home.

On August 29, 2017, the WCB's Compensation Services advised the worker that they had determined she had recovered from the effects of her compensable injury and any ongoing difficulties or restrictions would be due to conditions unrelated to her May 3, 2017 workplace injury. Entitlement to wage loss and other benefits would therefore end on September 4, 2017.

On November 19, 2017, the worker submitted a copy of a medical report completed by the worker's family physician for her employer sponsored health insurance plan and requested that Review Office reconsider Compensation Services' decision. On November 20, 2017, Review Office returned the worker's file to Compensation Services for further investigation, as the medical information which had been submitted provided a diagnosis of a right C6 nerve root irritation affecting the worker's level of function.

Compensation Services requested and received narrative reports from the worker's treating physician dated November 27, 2017 and her treating physiotherapist dated December 13, 2017. The worker's file, including the submitted narrative reports from her treating healthcare providers, was reviewed by the WCB physical medicine consultant on January 10, 2018. The WCB physical medicine consultant opined that the worker's initial diagnosis was of a non-specific right top of shoulder/neck pain, following a possible minor top of shoulder/neck strain mechanism. The consultant also noted:

As discussed above, no significant physical injury would have been expected to have occurred with the reported mechanism of a head, neck and upper torso movement to the right side reported with the claim incident of May 03, 2017. Even if a minor strain was experienced as a consequence of this movement, recovery of this in at most at 3-4 weeks would be expected as per the scientific literature based disability duration guidelines.

When asked by Compensation Services for a medical opinion as to current diagnosis, the relationship between the original diagnosis and current diagnosis and possible restrictions, the WCB physical medicine consultant opined:

Non-specific right top of shoulder/neck pain, with unverified right C6 nerve root features

It is now at the point more than 8 months post reported claim incident and as discussed no physical/structural or patho-anatomic claim incident related diagnoses has been identified nor would be expected to be present based on the reported claim incident mechanism. None has been identified despite the medical assessments and investigations performed including MRI scan of the cervical spine and electrophysiological studies. As well no diagnosis as related to the claim incident was identified on the call in examination performed by myself on August 09, 2017. As discussed previously the reported radiating pain from the neck into the right arm and reported numbness and tingling into the right index finger and thumb had onset 7-8 weeks following the reported claim incident and therefore no plausible causal relationship between these subjective symptoms and the reported claim incident would be expected to be present. 

… 

…as discussed, there has been no identification on the available [WCB] file of a probable relationship between the as reported claim incident and the current diagnosis. 

… 

...as discussed previously, considering there is no apparent claim incident (movement of the head, neck and upper torso to the right side) related diagnosis, and that none has been identified either by a complete medical workup and following the call in examination performed by myself in August 09, 2017, no claim incident related restrictions would be indicated. The rehabilitation medicine scientific literature regarding activity recommendations for individuals in similar scenarios advise that return to all usual activities of daily living and employment acts therapeutically regarding any possible residual symptoms. No related impairments or need to place any related activity restrictions would be expected to be present either.

On January 17, 2018, Compensation Services advised the worker that there was no change to the August 29, 2017 decision to end wage loss and medical aid benefits as of September 4, 2017.

On March 28, 2018, the worker's representative submitted a January 31, 2018 physiotherapy assessment and requested that the WCB reconsider the August 19, 2017 and January 17, 2018 decisions. The worker's representative submitted that the physiotherapy report supported the worker had not recovered from her May 3, 2017 workplace accident. On April 10, 2018, Compensation Services advised the worker and her representative that the previous decisions remained unchanged.

On April 24, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decisions. The worker's representative submitted that the worker's healthcare providers had attributed her right arm/shoulder symptoms to C6 nerve root irritation and provided diagnoses of occipital neuralgia and trapezius spasm, supporting a medical relationship between the worker's ongoing right arm/shoulder difficulties and the May 3, 2017 compensable injury.

On June 22, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office placed weight on the WCB medical advisor's opinion that the worker's compensable injury had resolved and that her ongoing difficulties were not related to the workplace accident.

On August 7, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 23, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker was represented by a worker advisor, who made a submission at the hearing, a written copy of which was also provided. The worker responded to questions from her representative and from the panel.

The worker's position was that she had not recovered and continued to suffer from the effects of her compensable injury after September 4, 2017, and is entitled to further wage loss and medical aid benefits.

The worker representative noted that the worker suffered a sprain to her cervical spine, trapezius and levator scapula which caused painful muscle spasms and limited her range of motion. The WCB accepted responsibility for the injury and benefits were paid until September 4, 2017 when the WCB determined that she had fully recovered from the compensable injury.

The representative submitted that the worker's recovery had been delayed due to interferential therapy which had been introduced as part of her WCB supported physiotherapy. The interferential therapy treatment exacerbated her previously asymptomatic pre-existing disc condition, causing nerve root irritation symptoms. This intense radicular nerve pain became a barrier for her physiotherapy and recovery from the compensable injury. Due to the enormous amount of pain from the nerve root irritation, the physiotherapist was unable to work successfully on the injured area from the commencement of the interferential therapy until its resolution after a few sessions of traction. Once the nerve irritation was identified and treated, it resolved in a timely manner. In the absence of the debilitating nerve root irritation symptoms, the worker was again able to focus on a physiotherapy program to treat the original sprain. Benefits on the claim, however, were ended around the same time as the pain from the nerve root irritation resolved.

It was submitted that the worker continued to suffer the effects of the compensable injury after her benefits ceased. The worker was unable to return to work with the employer when her benefits ended, as her healthcare providers had assessed that she was not capable of safely returning to her pre-accident work. The worker struggled to continue with her physiotherapy treatments due to cost factors. Once her employer sponsored health insurance benefits commenced, she was able to work on her physiotherapy. Without the barrier of the nerve pain, the physiotherapy was ultimately successful. She was able to proceed with a gradual return to work program designed by the physiotherapist, starting with restrictions and modified duties, and she was ultimately successful in a full return to her pre-accident job and duties.

Employer's Position

The employer was represented by its Case Manager Specialist and its Manager, Occupational Health Services. The employer's representatives each made oral submissions at the hearing, written copies of which were also provided.

The employer's position was that they agreed with the Review Office decision that the worker's compensable injury had resolved and that any ongoing difficulties beyond September 4, 2017 were no longer related to the workplace incident of May 3, 2017.

The employer's Case Manager Specialist stated that they agreed with the decision to terminate benefits, and listed a significant number of points they relied on in support of that conclusion. She submitted, in summary, that the medical information on file did not support that the workplace incident of May 3, 2017 was of sufficient severity to support continued WCB benefits beyond September 4, 2017. In addition, the medical information shows degenerative changes indicating that the worker's condition was present prior to her May 3, 2017 incident, especially with the history of previous neck injuries the worker sustained in 2008 and 2012.

It was submitted that the medical information does not support that the worker's symptoms from September 5, 2017 forward were related to her workplace incident. The Case Manager Specialist noted that all of the medical information on file was submitted to the WCB and reviewed by Review Office prior to its decision in June 2018, and no new medical had been submitted to support that her duties were related to the May 3, 2017 incident.

The employer's Manager, Occupational Health Services focused in particular on the medical side of the file and pointed to various concerns she had identified in reviewing the file. She submitted that the employer provided a fair and generous amount of time for the worker to have participated in a return to work plan and to have recovered prior to the WCB closing her file. She suggested that the length of time seems otherwise excessive, based on the information on file, as supported by the WCB medical advisor's opinion.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of his May 3, 2017 workplace injury. The panel is able to make that finding.

The panel is satisfied that the medical evidence supports that the worker's compensable injury had not resolved by September 4, 2017, when her benefits were ended.

The panel notes that medical information on file supports that the worker's recovery was delayed due to difficulties arising out of interferential treatment which hindered the ability of the physiotherapist to treat the worker. The worker and her representative acknowledged, and the panel accepts, that while the worker's compensable injury was still ongoing, the difficulties relating to the interferential treatment had essentially resolved at or about the time the worker's WCB benefits ended, on September 4, 2017. At that point, the worker would have been able to continue with further physiotherapy treatment for her compensable injury.

The worker's evidence at the hearing was that she was subsequently provided with physiotherapy treatment through her employer sponsored health insurance plan.

Medical information was provided by the employer-sponsored plan at the panel's request following the hearing. The evidence provided by the employer sponsored plan confirmed the consistency of symptoms and issues before and after September 4, 2017.

The panel is satisfied that physiotherapy treatment provided to the worker both prior to September 4, 2017 and subsequently by the employer sponsored plan was focused on treating the compensable injury.

The panel notes that in the Doctor First Report relating to the worker's visit to her family physician on May 4, 2017, the day after the workplace accident, the family physician reported subjective complaints of "pain" and provided a diagnosis of "neck spasm R>L, trapezius." These specific issues and complaints appear throughout the claim.

The panel further notes that in the doctor's form which was completed by the worker's family physician for the employer sponsored plan, dated October 6, 2017, the physician similarly refers to the worker's subjective complaints as "R trapezius pain" and to objective findings on examination of "trapezius spasm."

The panel therefore finds that the physiotherapy treatment provided by the employer sponsored plan subsequent to September 4, 2017 was focused on and treating the same symptoms and area of injury as prior to that date, being the right upper extremity and in particular the trapezius and trapezius spasms, and that the worker had not recovered from her compensable injury by that date.

Information provided at the hearing and from the employer sponsored plan shows that the physiotherapy treatment through that plan started in early November and appears to have consisted at least primarily of a reconditioning program.

The evidence further shows and the panel finds that based on that focused treatment through the employer sponsored health insurance plan, the worker's ongoing issues and difficulties relating to her compensable injury resolved, to the point that she was able to return to work on a graduated basis in March 2018, and was ultimately successful in returning to her full regular duties.

As a result, the panel finds, on a balance of probabilities, that the worker sustained a further loss of earning capacity and required further medical aid as a result of his May 3, 2017 workplace injury. The worker is therefore entitled to further benefits.

The worker's appeal is granted.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2019