WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100017
OBJECTION BY: Worker
PATICIPANTS: Worker, Worker’s representative
HEARING DATE: November 5, 2009
ISSUE
The worker is requesting entitlement to a neck and upper-back condition and related loss of earnings (LOE) benefits.
HOW THE ISSUE ARISES
The worker who was a 41-year old shipper at the time of the accident on November 10, 2007, attempted to lift a 200-pound roll onto a skid and injured his back. He went for immediate medical treatment at the emergency department at a nearby hospital and was diagnosed with a lumbar strain. He returned to work and did modified work off and on and there was no lost time as a result of this incident, initially.
On July 28, 2008, the claims adjudicator documented the worker contacted her to inform her he had neck surgery on July 9, 2008. The claims adjudicator denied entitlement to the surgery and any related lost time because of a delay in treatment for the neck and upper-back condition. She was unable to relate this condition to the original injury, and informed the worker of the decision denying entitlement in a letter dated November 20, 2008. The worker is objecting to this decision.
AUTHORITY
Operational Policy Manual Documents (OPM)
11-01-02 – Decision-Making
15-03-01 - Recurrences
18-03-02 – Payment of LOE Benefits
EXHIBITS
Exhibit 1
Medical report dated November 4, 2009 from the worker’s family physician
Post-Hearing Activity
During the oral hearing, the worker informed me there were additional outstanding medical records which were not in the claim file which I agreed to request. The worker also agreed to contact a former co-worker to obtain a statement about his knowledge of the worker’s condition between November 12, 2007 and March 13, 2008.
The worker later contacted me and informed me the co-worker was unwilling to provide a statement as he was still an employee of the company, but he offered me the name of a former supervisor and receptionist who had knowledge of his condition. I obtained statements from these two individuals and they are now included in the file record.
I agreed to defer making a decision until all the outstanding records were in the file. Once I received the information, I shared it with the worker representative and she provided me with her written response, dated January 15, 2010.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence, the worker’s testimony and the submissions received at the hearing and post-hearing.
The claim was established upon receipt of an Employer’s Report of Injury/Disease (Form 7) dated November 19, 2007. The report indicated the worker tried to lift a 200-pound roll onto a skid and injured his low back. He went for medical treatment at the emergency department on November 12, 2007 at a nearby hospital where the reason for the visit was documented as back pain due to a lifting incident at work the previous Saturday. They diagnosed a lumbar strain and the worker did not lose time from work initially.
A health professional completed a Functional Abilities Form (FAF) based on a treatment date of November 12, 2007, outlining the area of injury as a lumbar strain. The doctor recommended restrictions specifically for the low back and stated a complete recovery was expected and the restrictions were expected to be in place for five days. The worker again presented to the emergency department on November 19, 2007 with back pain since November 12, 2007 because of lifting at work. He was given medication and reported he was still having pain but did not have a family physician.
The worker presented at the emergency department reporting neck pain radiating to his arm. The emergency department report, dated April 25, 2008, stated the worker was seen for worsening neck pain, radiating down to his right arm for which he had been seen four days prior. This report stated this worker was involved in a minor motor vehicle accident (MVA) six days prior and the pain started at that time. They also indicated, in the history, that he had a back injury at work a few months before and constant headaches for the past two weeks.
The worker was referred for a CT scan because of neck pain radiating to his right arm. The scan, dated April 21, 2008 showed,
“There is some straightening of the normal cervical lordosis. There is severe narrowing of the intervertebral disc at the C5-C6 level with marginal osteophyte formation. Flaring of the uncovertebral joints causes foraminal compromise at this level bilaterally. The facet joints are quite well maintained throughout.”
A magnetic resonance imaging (MRI) scan of the cervical spine done on May 23, 2008, showed:
“Significant cervical spondylosis at C5 causing severe stenosis of the neural foramen.”
The worker underwent a left-C5-C6 foraminotomy using minimally-invasive techniques on July 9 2008. The pre and post-operative diagnoses were, left C5-C6 foraminal stenosis.
On June 5, 2008, the worker sent a letter to the claims adjudicator indicating that on November 10, 2007 he injured his back lifting a roll of rubber which had fallen over. At that point he felt a burning sensation in both his upper and lower back. He stated the pain never went away and he has been going to the hospital for treatment due to this condition, on an ongoing basis. He also stated after he had x-rays, CT scans and MRIs the doctors finally determined the main injury was to his neck, and the severe pain caused damage at C5-C6 and at C7 necessitating surgery.
The worker submitted a letter dated August 20, 2008 stating this was confirmation the surgery the doctor performed on July 9, 2008 is a direct result of the accident that occurred at the workplace on November 10, 2007. It further stated that both the upper and lower back was affected due to the accident and the worker may require additional surgery to treat the condition. This worker signed this document although it has what appears to be an official medical doctor’s stamp at the bottom.
The worker denied being involved in a MVA and he reported his medical file may have been confused with another patient’s as he remembered a gentleman in front of him at the emergency department who was involved in an MVA. He stated his injuries are directly related to his work accident and nothing else. He further stated that he continued working, taking medication which helped him through the day while he was on light duties. He stated he was not supposed to work, but due to financial reasons and being relatively new in the position, he continued to work.
The claims adjudicator contacted the worker’s employer and spoke with his previous supervisor. They informed the claims adjudicator the worker was terminated on March 13, 2008 and performed his regular duties in shipping until that date without any complaints of his upper neck, back, or shoulder. They stated workers are required to use a forklift to lift heavy loads but they may be required to manually lift weights up to 75 pounds. The supervisor denied the worker performed any modified work since the date of accident and did not complain or indicate to the employer he needed modified work.
In response to questioning from his representative, the worker stated he went to the emergency department at the time of the accident with complaints of pain in his right arm, lower back, upper back, leg, and neck. He adamantly denied ever having been involved in an MVA and stated he does not drive and was currently medically unfit to drive. He stated that at that point, he does not do much other than watch television and he sees his family physician every two weeks.
He testified he feels all his current difficulties are related to the effects of the work related accident of November 10, 2007. He described having tingling in his hands and stated sometimes he just simply drop things for no reason and was currently on Neurontin or Gabapentin for that condition. His pain medications included Methadone and Percocet, but he felt this was too much and weaned himself off them. He uses a cane to ambulate and is currently on a waiting list for a pain clinic, but expects this will take about one year. The worker testified he now sleepwalks but did not do this before the accident. He is unsure about the reason for the sleepwalking and he testified he sustained at least two injuries due to activities while sleepwalking. He does not consider himself to be employable at this point.
In response to questions from the ARO, the worker provided a detailed description of how the incident occurred. He testified he lifted a roll of rubber weighing approximately 200 pounds off a shelf which was at shoulder height. He lifted the rubber by outstretching his right arm to manoeuvre it and the roll of rubber rolled too fast and hit him between the neck and shoulder area. At that time, he described immediately feeling a surge down his body and his knees buckled. He was unable to hold the rubber and he dropped it. He went into his office, at the time, sat down and caught up on some paperwork thinking the pain would go away. He finished the day doing paperwork only and went home. As the condition did not resolve, he reported the incident to work the following Monday and sought medical treatment. The worker described having pain on the right side, neck, mid-back, low back, right elbow, and right hand, and he stated he mentioned all this to the emergency physician, but is not clear as to why it was not documented in the report.
The worker testified he returned to modified work for one to two weeks and then saw a physician who treated him at the emergency department. The doctor told him to continue on modified duties and refilled his prescription for Percocet. He continued with modified duties on and off for almost two-and-a-half months, and he testified he did not fully get back to his regular job but would get help from his co-worker until March 13, 2008, when he was terminated. The worker testified that the doctor who treated him in emergency eventually became his family physician who he saw in his office a couple of times, with complaints of his back and neck.
He testified he feels he injured his neck when the rubber rolled down his shoulder and he has not worked since he was terminated. He feels the neck problems were there immediately but the doctors did not identify this until a doctor sent him for x-rays, then a CT scan, then an MRI, and it was determined he had herniated discs.
The worker representative argued the worker injured his neck and back at the time of the accident on November 10, 2007. He was always in pain following the accident, and complained to his co-worker. He tried not to complain too much because he was a new employee, although he was eventually terminated.
The worker representative confirmed the worker went to his doctor at the walk-in clinic constantly, and reported the accident, and at that time reported he had pain in his neck and back. She argued the worker enjoyed his job and took care of his father and used to be independent. He has two sons who he is now unable to support because he is financially stressed and he is now receiving benefits from Social Services and is in danger of being evicted. He had no back problems prior to this accident. She feels he should be entitled to LOE benefits for his back and neck conditions since his layoff of March 13, 2008.
There is no dispute the worker injured his low back at the time of the accident on November 10, 2007. The issue before me is whether he injured his neck at that time resulting in the surgery of July 9, 2008.
On his Worker’s Report of Injury/Disease (Form 6) dated June 5, 2007, the worker described injuries to the upper back, lower back, right shoulder, arm, elbow, forearm, wrist, hand, and fingers. The initial medical report from the emergency department, dated November 12, 2007, described the reason for the visit as back pain from lifting heavy rubber. The doctor described no radiation and diagnosed a lumbar strain. The FAF dated November 12, 2007, described the injury as a lumbar strain, and recommended restrictions for the lumbar area.
The worker was seen again in the emergency department on November 19, 2007 for back pain, which had been present since November 12, 2007 as a result of lifting at work. He was prescribed Toradol and Percocet, and the Triage assessment stated the worker was out of medication and was still having pain.
Dr. Ostro, who treated the worker initially in the emergency department and later became his family physician, submitted a list of patient encounters with the worker from July 13, 2007 to March 5, 2009. According to this list of patient encounters, after the doctor saw the worker on July 13, 2007, the next visit to the office was on April 18, 2008 at which time he described the worker as a new patient. He then saw him regularly subsequent to that until March 5, 2009.
The worker indicated he also received treatment at an after-hours-walk-in clinic and I requested a copy of their records. They provided records for treatment dates starting December 2, 2007 to November 23, 2009.
o The visits documented on December 12, 22, 2007, January 20, 21, 2008, February 10, 2008, March 17, 30, 2008 and April 6, 2008, are unrelated to the worker’s neck and back conditions.
o The first visit that mentioned the neck condition is based on a date of treatment of April 25, 2008. The doctor reported that six days ago the worker was involved in a fender-bender MVA and developed pain in his right neck and shoulder a day later. He diagnosed cervical strain, query degenerative disc disease (DDD).
o On May 11, 2008 the walk-in clinic documented the worker had a history of cervical disc disease plus a recent whiplash injury. The diagnosis was cervical whiplash, cervical disc disease, and he was advised to continue with physiotherapy treatments.
o The visit of June 8, 2008 indicated the worker was booked for surgery on July 9, 2008. There is nothing in the record that suggests the worker’s neck injury was related to the work-related accident of November 10, 2007.
After the oral hearing, the worker informed me of two persons who had knowledge of his condition and ongoing complaints following the accident. I contacted the receptionist, who the worker identified as a person having knowledge of his condition. She informed she was aware the worker was injured, but she had no first-hand knowledge about any ongoing difficulty as she does not work in the plant where he worked. I contacted the worker’s former plant manager who confirmed the worker injured his back at work. He also confirmed there was a great deal of heavy lifting involved in the job and the worker was a very-hard worker and always willing to help. However, the former plant manager was unable to recall for certain, whether the worker injured his upper or lower back at the time and when the worker returned to work, he gave him lighter work to do but he feels the worker may have had to do some heavy lifting although he was supposed to be on lighter work.
In her response to the medical evidence submitted and the statements from the receptionist and the worker’s previous plant manager, the worker representative confirmed the worker injured his neck at the time of the injury and, in her view the doctors did not document his history properly. She argued the evidence is there to support the worker injured his neck at the time of the accident and his surgery was a direct result of that injury.
Analysis
In my view, the accident, as the worker described, could reasonably have caused an injury to his neck. However, the difficulty is that there is no evidence of a neck injury until April 2008 some five months after the initial injury and after two separate medical records documented he injured his neck in a MVA that occurred days before he was treated. The initial medical report and subsequent medical reports all make reference to a lumbar strain only. The FAF provides restrictions for the low back only and there is no continuity of complaint as while the worker may have been instructed to do suitable work for the low-back condition, there is no evidence suggesting he had any difficulty with his neck when he returned to work following the initial injury. Neither the plant manager nor the receptionist was able to confirm the worker injured his neck at the time of the original incident. The medical reporting does not support a neck injury at the time of the accident. The worker had medical treatment for his low back on November 12 and 19, 2007. The next medical record is April 2008 pertaining to a neck condition. According to the record, the worker continued working on modified work off and on until March 13, 2008 when he was terminated. During this time, there is no evidence he sought medical treatment for a neck condition and no indication of any complaints to any co-workers about a neck condition.
WSIB OPM document, 15-03-01 – Recurrences, provides the guidelines for when a decision-maker can recognize a recurrence. It states, in part:
“To establish clinical compatibility, a decision-maker compares the worker’s current clinical condition to that following the initial accident. The decision-maker considers
whether the parts of the body affected now are the same as, or related to, those affected initially
whether the body functions affected now are the same as those affected initially, and
the degree to which body functions are affected now (as compared to the effect of the initial condition).
Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence.”
In the worker’s case, all the evidence points to a low-back injury at the time of the accident in spite of the mechanics of the accident and the surgery was for a neck condition. There is no medical evidence of a neck injury between November 2007 and April 2008. Furthermore none of the witnesses were able to confirm the worker had ongoing complaints of a neck injury subsequent to November 10, 2007.
I am unable to link the worker’s neck condition to the original accident which occurred on November 10, 2007, and therefore, I find the worker does not have entitlement to a neck condition or any related health care or LOE benefits.
CONCLUSION
I conclude that the evidence does not support the worker injured his neck at the time of the accident on November 10, 2007.
The worker’s objection is denied.
DATED January 29, 2010
D. Hart
Appeals Resolution Officer
Appeals Branch