The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the November 2, 2019 accident. A videoconference hearing was held on January 30, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the November 2, 2019 accident.

Decision

The worker is entitled to further benefits in relation to the November 2, 2019 accident.

Background

On November 5, 2019, the WCB received an Employer's Accident Report indicating the worker injured their head and neck in an incident at work on November 2, 2019. It was noted the worker struck their head on a heater. The worker sought medical treatment on November 3, 2019 at a local emergency department and was diagnosed with a minor head injury. On November 4, 2019, the worker attended for an initial physiotherapy assessment, reporting they could not move their neck in any direction, it was very painful and could not get comfortable or sleep after bumping their head on a heater at work. The treating physiotherapist noted decreased range of motion, including flexion and extension, in the worker's neck and diagnosed a facet C 3/4/5 dysfunction. It was noted the worker had an upcoming scheduled shift on November 8, 2019 and would be evaluated for duties on November 6, 2019.

The worker submitted their Worker Incident Report to the WCB on November 7, 2019. The worker confirmed they struck their head on a heater while at work on November 2, 2019, noting they did not feel any pain at the time and continued to work, finishing their shift. After their shift, they began to feel stiffness in their neck and right shoulder but were able to drive home. The following morning, they could not get out of bed and attended the local emergency department after which, they attended at work, met with the medical team and went home.

Copies of the employer's first aid notes from November 3, 2019 and the Functional Abilities Form ("FAF") and modified duties were received by the WCB on November 20, 2019. The First Aid Note indicated the worker reported striking their head on a low hanging heater, jarring their neck and was reporting limited range of motion turning to the right. The "FAF" completed by the employer on November 3, 2019 noted modified duties which would minimize any activities that require head and neck movement, allow for opportunity to apply ice every two hours for 15 minutes and carry loads close to the body. A further FAF completed on November 6, 2019 noting the worker would be performing sitting/desk work with intermittent breaks until November 14, 2019.

On November 14, 2019, the worker attended for a follow-up appointment with the physiotherapist reporting ongoing pain while looking up, inability to rotate their neck to the right and pain with lifting. The treating physiotherapist recorded decreased right rotation and extension in active range of motion. On November 25, 2019, a FAF completed by the employer indicated the worker should avoid prolonged above shoulder work and take breaks as needed until December 3, 2019.

Due to ongoing complaints, the worker was seen by a new physician on December 11, 2019. The worker reported ongoing neck pain, stiffness, persistent occipital headache and pain radiating into their right upper arm with occasional tingling and numbness. The worker also noted the pain radiated into their right and left shoulders, increased with overhead activities and they woke up at night due to pain. Upon examining the worker, the treating physician found tenderness at C5 and C6, limited flexion, extension and rotation, slightly limited range of motion in the worker's right shoulder and paraspinal muscle tenderness. The physician diagnosed the worker with muscle spasms and nerve entrapment on the right. Muscle relaxant and pain medication was prescribed and the worker was referred for a CT scan. On December 20, 2019, the worker underwent a CT scan which indicated "Right paracentral disc herniation at C5-6." An MRI was requested by the employer's medical team.

The worker attended a follow-up physiotherapy appointment on January 8, 2020, where a new diagnosis was noted of a disc herniation C5-6 as set out on the CT scan. The worker reported intermittent numbness and tingling down their arms into their hands, with their neck tired and sore by the end of a workday. Decreased extension, left scapular winging and muscle wasting on the right was noted by the physiotherapist. A FAF completed on January 6, 2020 noted the worker's restrictions of no overhead work or sustained/static positions, frequent breaks, no lifting/moving weight and no repetitive tasks. An MRI study of the worker's cervical spine was conducted on January 13, 2020 and indicated a right paracentral disc protrusion at C5-6.

The worker's file was reviewed by a WCB sports medicine physician on January 20, 2020. The physician opined there was a new diagnosis on the worker's file of a right C6 radiculopathy, which was medically accounted for in relation to the November 2, 2019 workplace accident. Additional physiotherapy treatment was recommended. The worker was seen by a physical medicine and rehabilitation specialist on February 5, 2020 for a three-month history of “…midline neck pain with bilateral shoulder girdle pain and bilateral numbness…”. After examining the worker, the treating physiatrist found the worker’s:

“…range of motion of the cervical spine is markedly restricted by pain in both flexion and extension, but normal and generally pain free in rotation bilaterally. Spurling’s maneuver is negative. Reflexes are grade 2 and symmetric at the biceps, brachioradialis and triceps bilaterally. Manual muscle testing reveals grade 5/5 power from C5-T1 bilaterally. The sensory examination is normal from C5-T1 bilaterally. There is no paraspinal muscular guarding and no pinch-roll tenderness throughout the neck and shoulder girdle.”

The physiatrist went on to note the diagnostic imaging of December 20, 2019 and January 13, 2020 both indicated a right central disc protrusion at C5-6 indenting the thecal sac, with the January 13, 2020 MRI indicating a small right-sided herniation at C6-7. The worker was diagnosed with a cervical disc herniation and recommended modifications to the worker’s exercise program.

The worker attended for medical treatment with their physician, physiatrist and physiotherapist, and continued to work with restrictions that were adjusted periodically. On June 9, 2021, the employer advised the WCB the worker had returned to their regular duties. A June 18, 2021 report from the worker’s treating physiatrist noted the worker continued to have a clinical presentation of a cervical disc herniation and was being referred for a further MRI study. The cervical spine MRI conducted on August 25, 2021 indicated “Overall mild degenerative changes centered about C5-C6.” At a follow-up appointment on September 14, 2021, the worker’s treating physiatrist opined the worker was likely at maximum medical improvement with respect to their cervical disc herniation and discussed further treatment options with the worker including surgery, medication and exercise. On September 27, 2021, a modified work duties form was provided to the WCB by the employer indicating the worker was working modified duties and was expected to continue working those duties until December 31, 2021.

On October 1, 2021, the worker contacted the WCB to advise they had changed their modality of treatment from physiotherapy to chiropractic and had attended for an initial appointment on September 29, 2021. The initial report was received by the WCB on October 4, 2021 with the treating chiropractor noting the worker’s report of radicular symptoms on their left side, pain with any arm work from or around 90 degrees abduction or when their hand was above their shoulder. Decreased range of motion was found, along with positive Kemp and acromioclavicular testing. The worker was diagnosed with C5/6 radiculopathy, shoulder instability and acromioclavicular impingement with further treatment recommended.

At the request of the WCB, the worker attended for a call-in examination with a WCB sports medicine consultant on November 5, 2021. After examining the worker, the consultant opined there was “…no evidence of a right C6 radiculopathy. There was no objective finding of cervical dural tension or a right upper limb neurological deficit in a C6 distribution.” The WCB sports medicine consultant noted the worker’s reporting of most of their symptoms as being left-sided and found that other than reported mild weakness in left finger abduction, there were no other findings. As such, the consultant opined the worker’s current difficulties were not medically related to a right C6 radiculopathy and provided the worker’s current diagnosis was a “non-specific neck/left shoulder girdle pain”. On November 25, 2021, the WCB advised the worker it had been determined they had recovered from their compensable injury and their entitlement to wage loss and medical aid benefits would end on December 2, 2021.

The worker requested reconsideration of the WCB’s decision to Review Office on December 8, 2021. In this submission, the worker noted they had no issues prior to November 2, 2019 and included a Required Physical Examination dated December 19, 2018, to indicate their fitness to work. The worker noted after the workplace accident, that they experienced symptoms and a December 20, 2019 medical examination from the employer, indicated an injury to their left shoulder. Review Office determined on January 7, 2022, the worker was not entitled to further benefits. Review Office accepted and agreed with the opinion of the WCB sports medicine consultant who examined the worker and found the worker’s current difficulties were not related to their compensable right C6 radiculopathy injury.

The worker’s representative requested Review Office reconsider the earlier decision on August 11, 2022. The representative noted that since the January 7, 2022 decision, additional medical information had been placed to the worker’s file in support of an ongoing relationship between the worker’s current symptoms and the November 2, 2019 workplace accident. The representative submitted a June 16, 2022 report by the worker’s treating physiatrist. The physiatrist opined the worker had a chronic nonhealing disc herniation resulting in cervical radicular pain. From that, the representative provided the worker had not recovered from their compensable injury. On September 21, 2022, Review Office again determined the worker was not entitled to further benefits. Review Office noted the worker’s accepted compensable diagnosis was a right C5-6 radiculopathy, which had resolved by the time the worker attended for a call-in examination on November 5, 2021. Review Office found the additional medical evidence submitted did not identify any symptoms related to the November 2, 2019 workplace accident and determined the worker had recovered from the workplace accident with their ongoing difficulties noted related to that accident.

The worker’s representative filed an appeal with the Appeal Commission on August 14, 2023 and a 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 May 16, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by The Workers Compensation Act ("Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 4(1) of the Act provides that where a worker is injured by accident arising out of and in the course of employment, compensation shall be paid. Section 4(2) provides that an injured worker 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.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, compensation is payable under Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends. Section 27 of the Act allows the WCB to provide medical aid to a worker “…as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB has established Policy 44.10.20.10, Pre-existing Conditions ("Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. As well, workplace injuries can impact pre-existing conditions.

The Policy provides that wage loss benefits will cease when a worker has recovered to the point that the injury is no longer contributing to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.

Worker's Position

The worker was represented by an advocate, and provided both oral and written submissions to the panel in support of their position.

The worker’s position is that they should be entitled to further benefits as they were not recovered from the compensable workplace injury when the WCB determined that there was no entitlement to further benefits. The worker described symptoms that they experienced after the accident being ongoing pain in their neck and shoulder area, and stated that, as of the date of the hearing, these symptoms continue.

The worker submitted that they did not have any pre-existing conditions, and did not have any injuries to their neck and shoulders, prior to the accident. The worker was referred to a spinal surgery team to assess the worker’s eligibility for surgery. As of the date of the hearing, the worker has not yet been scheduled for this assessment.

In sum, the worker’s position is that the evidence does not demonstrate that the worker was recovered from the compensable injury to their pre-accident baseline condition, but that they continued to require treatment and experience a loss of earning capacity in relation to that injury.

Employer's Position

The employer was represented in the appeal by an advocate who made an oral submission on behalf of the employer and responded to questions posed to them by the members of the appeal panel.

The employer supports the worker’s position that the worker has not recovered from their injuries. The employer’s representative confirmed the employer’s view that the worker was able to perform their work duties without issue, prior to the accident.

The employer’s representative acknowledges the degenerative changes to the worker’s C5/C6 cervical spine, and agrees that it is likely due to the workplace accident.

The employer has provided accommodation to the worker, including training the worker for a less physically demanding role within the company.

In summary, both the employer and the worker have a parallel view that the worker continues to experience ongoing symptoms from this workplace injury, and as such, this appeal ought to be granted.

Analysis

This appeal is about whether the worker is entitled to further benefits in relation to the accident of November 2, 2019. For the appeal to succeed, the panel would have to determine that as a result of the injury sustained in the workplace accident of November 2, 2019, the worker continued to experience a loss of earning capacity or require medical aid beyond the date when the WCB determined they were not entitled to further benefits. As set out in the reasons that follow, the panel was able to make this finding and therefore, the worker’s appeal is granted.

The panel reviewed the evidence as to the nature and extent of the worker’s injury arising from the accident.

The worker’s head struck a ceiling mounted heater, in a manner that resulted in the following observable injuries:

- On November 4, 2019, an athletic therapist concluded that the worker had facet C 3-4-5 dysfunction;

- On December 11, 2019, the worker’s physician noted that the worker had a persistent occipital headache, pain in the right upper arm with occasional tingling/numbness and radiation to the right and left shoulder;

- A December 20, 2019 CT scan showed a right paracentral disc herniation at the C5-6 level of the cervical spine;

- An August 25, 2021 MRI of the cervical spine showed mild degenerative changes at the C5-6 level of the cervical spine;

- A March 15, 2022 report indicating that the worker has midline neck pain with bilateral shoulder girdle pain and bilateral hand numbness associated with a right central disc protrusion at C5-6 indenting the thecal sac;

- July 8, 2022 WCB’s Sport Medicine Consultant concluded that the worker continues to have nonspecific neck/left shoulder girdle pain; and

- August 12, 2022 MRI report states findings of shallow central through foraminal zone disc protrusion of the right that C-5 C6 resulting in mild foraminal stenosis, and “early degenerative changes are present at C5-C6 with slight loss of disc height and disc desiccation."

The worker testified that as of the date of the hearing, their range of motion has improved since the accident, but the pain in their neck and shoulder area persists. The worker testified that they have yet to be scheduled for surgery.

The panel wrote to the worker’s attending physiatrist on February 12, 2024 requesting copies of the worker’s referral for spinal surgery. The worker’s physiatrist clarified that they suggested to the worker’s physician on March 15, 2022, that a surgical referral be initiated because as of that date, the worker’s condition has not improved after undergoing non-operative techniques.

WCB’s position as to the termination of the worker's benefits, relies on the WCB’s Sport Medicine Consultant’s examination of November 16, 2021. WCB’s findings were that the worker’s ongoing symptoms were due to ‘nonspecific neck/left should girdle pain’, and are unrelated to the workplace accident.

The panel notes the disparity with the respective opinions for recovery between the WCB’s medical advisor when they concluded that the worker had a ‘good prognosis for recovery’, while the worker’s physiatrist, in their report of June 16, 2022, indicates that they were awaiting a referral for spinal surgery to address the worker’s ongoing symptoms.

The panel is not satisfied that the WCB medical advisor’s conclusion was based on a complete and accurate description of the worker’s injuries, and further, does not sufficiently address the worker’s ongoing symptoms and clinical findings. We give the WCB medical advisor’s conclusion less weight.

In assessing the evidence made available to the panel, the panel finds that the evidence suggests the ongoing symptoms are more likely caused by the workplace accident. Specifically, we note that the worker was 28 years old at the time of the accident, that they did not have any medical history affecting their neck or left shoulder, and the December 20, 2019 physician’s report states that the worker describes experiencing sudden and debilitating pain, and stiffness in the neck and shoulder area within hours of the accident. The worker further reported being unable to stand up during the morning after the accident.

The worker testified during the hearing that the worker’s symptoms continues. This evidence is confirmed by the reports of the worker’s treating physiatrist who noted a lack of progress and that the worker’s reports ongoing pain in both hands with arms overhead and “neck pain 24/7”.

After reviewing the medical evidence before the panel and considering the worker’s submissions, the panel accepts that the worker is experiencing continuing symptoms from the accident and that the worker’s injury was not resolved when the WCB terminated the worker’s benefits. The panel specifically relies on the reports of the worker’s treating physicians which do not provide evidence of recovery.

As a result, the panel finds, on a balance of probabilities, that the worker has not recovered from the effects of the compensable injury, requires further medical aid and suffers a further loss of earning capacity.

Lastly, the panel would like to recognize the exemplary steps taken by the employer in ensuring that not only was the worker accommodated, but the employer provided a robust return to work program that allowed the worker to continue advancing in the employer’s operations.

The panel finds that the worker is entitled to further benefits in relation to the November 2, 2019 accident. The worker's appeal is allowed.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of June, 2024