The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for her recurrent neck difficulties as being related to the October 5, 2010 accident. A teleconference hearing was held on December 15, 2020 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker’s recurrent neck difficulties as being related to the October 5, 2010 accident.

Decision

Responsibility should be accepted for the worker's recurrent neck difficulties as being related to the October 5, 2010 accident.

Background

The worker reported to the WCB on October 18, 2010 that they injured their right shoulder at work on October 5, 2010 while trying to restrain a resident. They noted after the incident “…my shoulder was burning a bit, and the next morning my whole arm was numb.” The worker sought medical treatment with their family physician on October 12, 2010 where they reported muscle spasms in their right shoulder and back up to their neck and were diagnosed with a right shoulder strain. It was recommended the worker remain off work for 4 weeks. In a discussion with the WCB on October 20, 2010, the worker confirmed the mechanism of injury and was advised their claim was accepted.

At an initial physiotherapy assessment on October 22, 2010, the worker reported pain in their neck radiating to their right shoulder and into their hand, with numbness into their thumb, pointer and middle fingers. The physiotherapist noted numbness in the worker’s C6-C7 nerve distribution and diagnosed the worker with a brachial plexus strain. At a follow-up appointment with their family physician on October 25, 2017, the worker was referred for a CT scan, an MRI study and for an appointment with a neurologist. The CT scan conducted on November 12, 2010 indicated severe central spinal stenosis at C5-C6; severe right foraminal stenosis suspected at C5-C6; mild to moderate central spinal stenosis at C6-C7; and multilevel facet osteoarthropathy. On December 2, 2010, the worker was seen by a neurologist who opined the nerve conduction studies performed on that date were normal but noted a cervical disc herniation at the C6-7 level, leading to C7 radiculopathy, which would resolve in 2 to 3 months. The neurologist recommended the worker could return to work on light duties. The worker began a graduated return to work program with modified duties on December 22, 2010. A WCB medical advisor reviewed the worker’s file on December 24, 2010 and noted the worker’s initial current diagnosis was a right C7 nerve root irritation, with anticipated functional improvement in a few weeks to a few months’ time. The advisor noted pre-existing degenerative changes in the worker’s lower cervical spine on the November 12, 2010 CT scan were likely delaying the worker’s recovery.

Due to ongoing and increasing symptoms in their shoulder and knees, the worker continued to seek medical treatment from her family physician and was referred to a sports medicine physician and for a further MRI study. The MRI study of the worker’s cervical spine conducted on March 29, 2011 indicated “Changes of cervical spondylosis…most marked at C5-C6 and C6-C7. At C6-C7 there is a disc protrusion which results in moderate narrowing of the central canal with compression of the cord.” The MRI study of the right shoulder noted “Mild supraspinatus tendinopathy, no tears are identified.”

On May 5, 2011, the worker was seen by a second neurologist. The neurologist noted the diagnostic imaging, specifically the MRI study, indicated the worker had “…some really quite remarkable acquired spinal canal narrowing secondary to a very large disc at C5-C6” and “…some small degree of signal change in the spinal cord.” The treating neurologist recommended an anterior cervical discectomy and fusion, which surgery was approved by the WCB on May 25, 2011 and performed on June 8, 2011. A follow-up report by the worker’s treating neurosurgeon on July 28, 2011 noted the worker was “essentially symptom free” and on August 4, 2011, the WCB provided a letter to the employer confirming based on the medical information from the worker’s treating healthcare providers, the worker could return to their full regular duties.

The worker contacted the WCB on June 14, 2019, to report issues they were having in their neck. They noted that their symptoms were higher up in their neck and they had headaches “all the time now.” The worker further noted they were limited in turning their head, with numbness in all of their right arm and from their elbow down in their left arm.

A June 13, 2019 report from a second treating neurosurgeon was received by the WCB on June 24, 2019. The neurosurgeon noted the worker developed recurrent pain in their arms, particularly on the left side, with an “odd feeling” in their legs with difficulty walking, approximately six months previously, after undergoing an anterior cervical decompression and fusion ten years previously. The treating neurosurgeon reviewed an MRI provided by the worker and found “…a previous fusion at C6-C7 with excellent decompression of the spinal cord. At C5-C6, the patient has an osteophyte projecting into the spinal cord causing significant spinal stenosis and possibly even some signal change.” An anterior cervical decompression and fusion at C5-C6 was recommended. The worker’s file was reviewed by a WCB medical advisor on July 24, 2019 who opined funding for the proposed surgery should not be provided as degenerative changes were noted previously at the C5-C6 level of the worker’s cervical spine, with the worker’s accepted compensable injury being a C7 root cervical radiculopathy. On the same date, the worker’s treating neurosurgeon was advised funding approval would not be provided for the proposed surgery. On July 25, 2019, the worker was advised by the WCB that a relationship between their accepted diagnosis of a C7 radiculopathy and their current difficulties could not be established and as such, the worker was not entitled to further benefits. The worker’s neurosurgeon provided a letter to the WCB on August 20, 2019 noting the worker’s previous spine surgery in 2011 after the workplace injury and their current presentation of “adjacent segment disease” and recommended the worker consider a different occupation with less physical job duties. On September 4, 2019, the WCB advised the worker the letter from the neurosurgeon was reviewed but there would be no change to the earlier decision.

On September 6, 2019, the worker requested reconsideration of the WCB’s decision to Review Office and included a copy of the August 20, 2019 letter from their treating neurosurgeon. A further letter from the neurosurgeon dated September 26, 2019 was also received and noted disagreement with the WCB’s decision the worker’s second surgery was not related to her workplace injury “…as the patient has adjacent segment disease which quite clearly related to the presence of a fused below. This is a common phenomenon occurring following anterior cervical procedures occurring in as many as 10% to 15% of patients.”

Review Office found that the worker’s recurrent neck difficulties were not compensable on October 30, 2019. Review Office noted the evidence on file supported that the degenerative changes in the worker’s cervical spine at C5-C6 were pre-existing and noted to be moderate to severe in 2010 to 2011 prior to the worker’s first cervical spine surgery. Further, Review Office found the surgery at C5-C6 was not attributable to the compensable injury as a result of the workplace accident but rather directed toward the worker’s pre-existing and degenerative condition.

The worker’s representative submitted a further report from the worker’s treating neurosurgeon dated May 28, 2020 and requested further reconsideration by Review Office on June 4, 2020. The report from the worker’s neurosurgeon indicated the worker’s surgery at C5-C6 was not directly related to the workplace accident however, was required as the worker developed adjacent segment disease as a consequence of the earlier C6-C7 surgery approved by the WCB. At the request of Review Office, the worker’s file and the May 28, 2020 report from the neurosurgeon were reviewed by the WCB medical advisor on June 8, 2020. The advisor indicated the previous opinion was unchanged and provided “The C5/6 diagnosis confirmed the inevitable stepwise progression of symptomatic degenerative cervical myelopathy…There is no specific scientific evidence that the need for urgent surgical intervention related to adjacent segment disease.” A copy of the opinion was provided to the worker’s representative on June 8, 2020 with a response received on June 12, 2020.

On June 18, 2020, Review Office determined the worker’s recurrent neck problems were not compensable. Review Office relied and placed weight on the WCB medical advisor’s opinions the worker’s difficulties at the C5-C6 area were due to their pre-existing degenerative changes and were not materially changed by the earlier compensable surgery at the C6-C7 level.

The worker’s representative filed an appeal with the Appeal Commission on July 13, 2020. A teleconference hearing was arranged and held on December 15, 2020.

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 February 23, 2021, 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. The Panel considered the following sections of the Act:

Section 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 to the worker. Under s 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.

Section 27(1) of the Act provides that the board 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.

WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness, states, in part, the following:

3. Recurrence 

If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness. A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

Worker's Position

The worker participated in the hearing and was represented by a worker advisor. The worker advisor made a presentation to the panel on behalf of the worker. The worker answered questions posed to them by the worker advisor as well as answering questions from the panel.

The worker advisor commenced their presentation by stating that it was their position that the worker’s recurrent neck difficulties are related to the October 5, 2010 accident which the WCB accepted responsibility for, and the resulting cervical fusion surgery.

The worker advisor stated that when the WCB accepted responsibility for the cervical surgery in 2011, it was based on a report from a WCB medical consultant dated May 25, 2011 that identified a central disc protrusion at C6-7 as well the disc osteophyte complex at C5-6 that, “…is likely related to the October 2010 workplace injury mechanism.”

The worker advisor stated that when the worker was examined on June 13, 2019 by their treating neurosurgeon, they had reported further pain in their arms that had commenced six months previously.

The worker advisor acknowledged that there were differing opinions between the worker’s treating neurosurgeon who opined that the worker’s ongoing cervical spine problems were related to their 2010 workplace injury and that of the WCB orthopedic consultant who provided an opinion that the worker’s current cervical spine problems were not related to the 2010 workplace injury and instead was related to the worker’s pre-existing degenerative disc disease.

The worker adviser stated that it was the worker’s position that the degenerative changes at C5-6 were accelerated due to the adjacent surgical fusion at C6-7.

The worker advisor referred the panel to an on-line medical report that they believed supported their position.

With respect to information that was contained within the worker’s file, the worker advisor suggested that greater weight should be attached to the opinion provided by the worker’s treating neurosurgeon than the opinion provided by the WCB orthopedic consultant as a neurosurgeon would have a higher degree of expertise on this matter than the WCB orthopedic consultant.

In summary, the worker advisor stated the following:

It is our position that since the WCB approved the initial spinal fusion, and that [the WCB orthopedic consultant] is aware of this condition called adjacent segment disease, as identified by [the workers treating neurosurgeon], then greater than just on a balance of probabilities, a relationship has been established by [the worker’s treating neurosurgeon] in which [they] fully supports the further difficulties are the consequences of the WCB accepted fusion.

As a result, the worker advisor concluded, there is a WCB responsibility for the worker’s recurrent cervical problems that are medically supported as being related to the 2010 accident and the resulting surgical procedure in 2011.

Employer’s Position

The employer did not participate in the hearing.

Analysis

In order for the worker’s appeal to be successful, the panel must find that, on the balance of probabilities, responsibility should be accepted for the worker’s recurrent neck difficulties as being related to the October 5, 2010 accident. For the reasons noted, the panel is able to make that finding.

The worker has an accepted WCB claim for a back injury to their cervical spine which resulted in the requirement for surgical fusion at C6-7 that occurred on June 8, 2011. The post-surgical reports indicate that the surgery was successful. The worker contacted the WCB again in June 2019 as they had been advised by their treating neurosurgeon that they now required surgery to their C5-6 disc which is located directly above the surgical site from 2011.

The panel notes that a March 29, 2011 MRI identified a central disc protrusion at the C6-C7 level as well as “…changes of uncovertebral and facet joint arthrosis which result in moderate-severe narrowing of the neural foramina where there is probable compression of the C7 nerve roots.” As a result, surgery was proposed to repair the injury.

When asked by WCB case management whether the surgery being proposed in 2011 was required as a result of the compensable injury, the WCB medical consultant stated the following in their May 25, 2011 report.

The proposed surgery in relation to an MRI identified central disc protrusion at C6-7 as well as disc-osteophyte complex at C5-6 is likely related to the October 2010 workplace mechanism.

As a result, responsibility was accepted by WCB for the proposed surgery which occurred on June 8, 2011.

While the WCB acknowledgement of the 2011 MRI findings as being related to the 2010 workplace injury alone is not determinative of the issue in front of the panel, the panel still finds it relevant that the WCB authorized a surgical repair that included the C5-6 level when the claim was being adjudicated in 2011.

The operative report for the 2011 surgery states that “…An MRI demonstrated an appropriate disk (sic) at C6-7, plus a lateral cervical disk (sic) at C5-6. It was thought that given the bilaterality of [the worker’s] pain, although more marked on the right, it was appropriate to address the 6-7 disk (sic), and the spinal cord was addressed at this level.” As a result, the operative report identifies that the surgical procedure only dealt with the C6-7 disk (sic) Follow-up examinations after the 2011 surgery identify that the worker was “symptom free.”

There is a report from the worker’s neurosurgeon dated June 13, 2019 that stated the worker’s recent MRI demonstrated a previous fusion at C6-7 “…with excellent decompression of the spinal cord.” However, the neurosurgeon also stated that at the C5-6 level, the worker “…has an osteophyte projecting into the spinal cord causing significant spinal stenosis and possibly even some signal change.” The neurosurgeon later identified the changes at C5-6 to be the result of adjacent segment disease in their report dated September 19, 2019, which they opined was related to presence to the surgical fusion that occurred to the disc below (C6-7) in 2011.

After the worker contacted the WCB again in 2019 to advise that they believed that their 2010 workplace injury had become symptomatic again, WCB case management requested an opinion from a WCB orthopedic consultant to determine if the medical information on file established a probable relationship between the original compensable diagnosis and the current diagnosis, the WCB orthopedic consultant stated the following in their July 23, 2019 report:

Negative

Regarding the accepted diagnosis of the compensable injury as a C6-7 cervical disc protrusion, there was clear evidence of pre-existing age-related degenerative disc disease at the C5-6 level at that time, but the surgical decision as to the level of fusion was clearly indicated by the N/S (neurosurgeon) in the operative report

The recent MRI study suggests persistence of the changes at C5-6 with some degree of increase in the degenerative changes.

These represent progression of the age-related changes over a period of eight years.

In response to a request for further information from the review officer, the same WCB orthopedic consultant reviewed the relevant medical information and provided an opinion as to why they took the position that the worker’s ongoing problems were not related to the 2010 workplace injury. In that report, the WCB orthopedic consultant made comment on the worker’s neurosurgeon’s diagnosis of ASD by stating that they were aware of the diagnosis “…which refers to new or accelerated degenerative changes a level above or below a fusion.” However, the panel notes that the WCB orthopedic consultant does not provide a position as to the reasonableness of the worker’s neurosurgeon’s opinion. Instead, the WCB orthopedic consultant only stated that his opinion is unchanged.

In response to the panel’s request for the worker’s neurosurgeon to provide further information, the neurosurgeon provided the following response in their January 25, 2021 correspondence.

…Essentially adjacent segment disease is the occurrence of degenerative change usually in the form of disc space narrowing the formation of osteophytes or facet arthropathy following a spinal fusion. The theory is that the fused segment creates a stress riser on the adjacent segment, which in turn accelerates the degenerative changes at the level above…

The panel carefully reviewed all the relevant information provided and finds that the worker’s treating neurosurgeon’s opinion to be reasonable and prefers it over the opinion of the WCB orthopedic consultant’s opinion.

The panel notes that the WCB orthopedic consultant did not dispute the validity of the worker’s neurosurgeon’s opinion or provide any information that would cause the panel to place less weight in the opinion outlined in their January 25, 2021 report. Instead, the WCB orthopedic consultant simply maintained their position that the worker’s spinal fusion played no role in the degenerative changes that occurred in the worker’s spine directly above the area of surgery without a rationale for that opinion.

In the circumstances, the panel finds that the evidence supports a finding that the worker's recurrent neck difficulties are related to the October 5, 2010 accident.

The worker’s appeal is therefore allowed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of March, 2021