WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190075
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Self (not participating)
HEARING: Oral Hearing on April 16, 2019
HEARD by: C. da Cunha, Appeals Resolution Officer
DATED: April 30, 2019
ISSUE
The worker objects to the eligibility adjudicator’s (EA) February 12, 2012 decision. He seeks initial entitlement to a disc herniation at the C7-T1 spinal level and the consequent December 29, 2011 surgery.
BACKGROUND
On October 26, 2010, the worker fell off the roof of an ambulance after painting it. He was 51 years of age at the time and had worked with the employer as an automotive painter for almost one year.
The Workplace Safety and Insurance Board (WSIB) granted initial entitlement to a right shoulder strain, and full loss of earnings benefits from October 27, 2010 to November 3, 2010, when the worker returned to modified duties.
The EA determined that the worker reached maximum medical recovery for the right shoulder injury by November 29, 2010, with no permanent impairment evident, as the worker had returned to his pre-accident regular duties by that date.
On January 18, 2012, the worker contacted the EA and informed her that he had undergone surgery to his neck on December 29, 2011. The worker advised the EA that he was claiming that his neck injury occurred as a result of the October 26, 2010 workplace accident, stating that he had been misdiagnosed at the time.
The EA’s Decision
After obtaining further medical documentation and a statement from the worker, the EA denied initial entitlement to a C7-T1 disc herniation and the resulting surgery. The EA explained that the evidence did not establish continuity of medical attention or complaint for the neck following the original accident.
The Worker’s Position
In his closing arguments, the employer representative put forth that initial entitlement to the disc herniation and resulting surgery is in order because:
- The 2000 injury to the cervical spine left the worker more vulnerable to further injury to that part of his spine;
- The fall from the ambulance roof is compatible with the disc herniation at the C7-T1 spinal level;
- The worker did not seek medical attention for the neck for more than a year after the accident because his family doctor was 2 ½ hours away in Barrie, Ontario;
- The worker did not complain about his ongoing right arm symptomatology after the accident because he is a stoic individual; and,
- Under the circumstances, the worker is entitled to the benefit of doubt.
AUTHORITY
Operational Policy:
11-01-01 Adjudicative Process
TESTIMONY
The worker provided the following relevant sworn testimony at the oral hearing:
- He initially injured his cervical spine while at work in 1999 when an airbag deployed in a car. At that time, his left shoulder gave him problems with numbness running down his left arm and into his left hand. He had surgery for a C4-5 spinal level disc herniation and his left upper extremity symptoms went away. His neck never bothered him and he has never had any pain in his neck region. His symptoms are, and have always been, radiating symptoms down his arms.
- On the day of the accident, he used a rickety, old ladder to get up onto the roof of the ambulance in order to paint it. When he stepped off the roof onto the ladder, the ladder gave way and he toppled onto the roof of the front cab of the ambulance, and then fell off that roof onto the ground. He struck his right ear on the mirror, scratching the ear. He was not able to move his right arm after the fall. After a week, he was fine and went back to his regular work. Afterward, his right arm and hand would intermittently fall asleep, especially when he used it for overhead tasks. He did not seek medical attention because his family doctor was 2 ½ hours away in Barrie, Ontario and he did not want to make such a long drive.
- Under cross-questioning, the worker confirmed that he had suffered a heart attack in the summer of 2010, before the fall from the ambulance roof. He stated that he sought medical attention at the hospital, where he underwent surgery to put a stent in his chest. For two years after the heart surgery, he did not follow up with any doctor in relation to his heart, simply renewing his medication prescription from the surgeon at the pharmacy. As far as he understood, his post-operative medical management consisted solely of pharmacological treatment and he did not have any concerns with the absence of any other medical management at that time.
- His employer permanently laid him off after about six months. He found a new job with Mine Steel in the fall of 2011. In December 2011, he was using a three-foot long torqueing gun to torque bolts. He had to stand, squat and sit on the floor to complete the work. He was sitting on the ground pulling on the torqueing gun, like a rower, when he felt his buttocks go numb. He assumed that they went numb from all the sitting. The next morning, he was numb from the waist down. He went into the shower and then went numb from the chest down and thought he was having a stroke. He went to the hospital.
- He had a low back injury at work in June 2010. He suffered sciatica symptoms for a while after that accident. Those symptoms were different in nature. In 2010, he felt radiating pain running down his legs from his buttocks; not numbness.
- At the hospital, they ran tests and ruled out a stroke. The doctor then asked him about any accidents he may have had. When he told him about the fall from the ambulance, the doctor suspected an injury to the cervical spine and ordered tests. That’s when they found the disc herniation at the C7-T1 spinal level.
- After the December 29, 2011 surgery, his wife had to initially help him with his activities of daily living (ADL). However, within a year he was fully independent with his ADL. He has never stopped driving his car and was driving within a month of the surgery. He is 100% better since the surgery. However, he still has pain in the area of the scar on his back, which swells up occasionally. There is also constant pain down his arms, and walking is still a challenge for him because his feet are constantly asleep. However, he manages to get by. He tries not to perform too much activity, as he finds that he gets worse if he does.
- He saw a mental health professional about six times in late 2012/early 2013 to help him deal with the psychological impact of not being able to do his job anymore. He did not feel that he got too much benefit from it as he still has emotional difficulties when he thinks about not working anymore.
- He attends a pain clinic at North Bay Hospital where he receives infusions to temporarily help him relieve the pain.
- He received federal and provincial disability benefits in 2013. He has not returned to work since the December 29, 2011 surgery.
ANALYSIS
I have carefully considered all of the available information and relevant operational policy in reaching this decision. Having done so, I find that initial entitlement to a cervical spine injury is not in order.
According to operational policy 11-01-01, Adjudicative Process, WSIB decision-makers use the “five point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:
- An employer;
- A worker;
- A personal work-related injury;
- Proof of accident; and,
- Compatibility of diagnosis to accident or disablement history.
There is no dispute regarding the worker and employer relationship, nor that a workplace accident occurred on October 26, 2010. Furthermore, a fall off a ladder from the height of an ambulance roof would be compatible with an untold number of injuries, including a disc herniation at the C7-T1 spinal level. The matter to be resolved is whether the worker sustained the disc herniation as a result of this specific fall (i.e. a personal work-related injury).
The worker reported the accident to his employer immediately after it happened. He informed his employer that he had injured his right shoulder. He made no mention of any difficulties or symptoms with his neck, arms or legs.
He sought medical attention with Dr. S. Murdoch on November 2, 2010. In a Functional Abilities Form completed on the same day, Dr. Murdoch confirmed the shoulder as the area of injury. The neck, arms and legs are not documented as areas of injury or complaint. On the form, Dr. Murdoch prescribes right shoulder medical restrictions for one week only. Based on Dr. Murdoch’s post-assessment recommendations, one can reason that the worker suffered only a minor injury to the right shoulder.
On November 4, 2010, the worker completed a Worker’s Report of Injury/Disease (Form 6). On that form he confirmed the accident history and specified that he had hurt his right shoulder as a result of the accident. Again, he made no mention of any problems with his neck, arms or legs. Significantly, the worker noted on the form that he had never hurt this area of his body before. If, in fact, he had hurt his neck, or had bilateral arm and/or leg symptoms after October 26, 2010, he would have indicated that he had hurt this area of his body before because he had undergone cervical spine surgery in 2000 due to bilateral arm pains. The worker remembered his 2000 symptoms at the April 16, 2019 oral hearing. Therefore, he most certainly would have remembered them when he completed the Form 6 in 2010.
While I accept that the worker is a stoic individual, whose family doctor was 2 ½ hours away, cervical spine surgery is a major life event for a person, especially when cervical myelopathy is involved, which carries the horrifying connotation of paralysis. Having undergone such an event in 2000, it is inconceivable that the worker would not have mentioned or sought medical attention at a hospital, or even a walk-in clinic closer to home, for radiating pain down his upper extremities following a fall off the roof of an ambulance immediately or shortly after it occurred. The fear of a catastrophic re-injury would almost certainly compel a person to do so. That he did not, leads me to reasonably conclude that such symptoms were not present after the accident. The contemporaneous evidence, medical and non-medical, corroborates this position.
In a Worker’s Progress Report (Form 41) dated November 5, 2010, the worker confirmed that he was getting better and that no new medical referrals were planned.
As previously noted, by November 29, 2010, the worker had returned to his pre-accident, regular duties. He performed these duties until February 2011, when the record shows that the employer terminated his employment. He received Employment Insurance benefits until November 18, 2011, when a new employer (xxx) hired him as a painter.
The worker testified that he felt no neck pain subsequent to his accident but did have occasional numbness in his right arm, especially at night or when doing overhead work. He did not seek medical attention or complain to his co-workers about these symptoms following the accident.
On December 22, 2011, the worker had an onset of radiating numbness from his buttocks to his toes. The worker reported a neck injury to his new employer, who filed a claim on his behalf. In his January 10, 2012 Form 6 under that claim, the worker provided the following accident history, which was fundamentally corroborated by his sworn testimony:
I was torking bolts @ 666 ft pounds with torking wrench after I finished torking bolts I felt numbness in buttocks I thought my bum went to sleep. Dec 23/11 worked from 7:00-12:00 pm I did some painting & clean-up moved 5 gallon paint cans from paint booth to paint room felt numbness from waist to toes. Walking fine. Came home had a nap from 3-5 pm woke up still numb from waist to toes walking fine. Hopped in shower half way through shower I became unsteady on my feet. Drying myself off I noticed numbness rise up to nipple area. I thought I was having a stroke. I went to hospital emerg. @ around 6:30 pm. I was seen by emergency doctor she did a CAT scan. Blood work & ruled out stroke. She said the problem had to be in my back. She said I should book appointment with my family doctor and to request MRI then she said she would book MRI but still follow up with my family doctor & if I got worse I should return to the emergency. Saturday Dec 24 did not do much but my walking was becoming more difficult. Sunday Dec 25 did not do much walking was getting worse no balance. Monday Dec 26 work up stumble to bathroom sat on toilet could not push to have bowel movement I had my hand on my penis to push it down and I could hear myself peeing took my hand off my penis thought I was finished got up from toilet and I was still peeing could not feel a thing. I went to the emergency around 1:00-1:30 pm and was seen immediately by emergency Dr. She ordered CAT scan, blood work, ECG, X Rays and then she wanted a spinal tap done. Through investigation and questions by Doctors. they asked if I had had problems with my arms. I said yes they go to sleep numb & burning in the right arm depending on how I slept or the type of work I did. They asked when that problem started I told them it started after I fell off an ambulance while I was painting it last October 2010 I was not sure of the date. Dr Bowker then figured out it originated from my neck. Dec 27 Dr. did MRI and found out it was in my neck @ C7. I was then transferred to Sudbury General Hospital and was seen by neurosurgeon Dr. Mantle & was operated on Thursday Dec 29. Released from hospital Jan 2 still have numbness & tingling in left arm & legs.
Contrary to the worker’s testimony, these December 2011 symptoms are objectively identical to the ones following a low back injury in June 2010, when he was diagnosed with sciatica. In a Health Professional Continuity Report (Form REO8) dated April 17, 2012 under the previous claim, Dr. A. Aylett confirmed that his December 2011 symptoms were a recurrence of his June 2010 sciatica symptoms.
In a January 17, 2012 conversation with the EA under the new claim, the worker stated that the work he performed with his new employer was physically demanding and he had not performed such work for a lot of years. He also indicated that, subsequent to his October 26, 2010 accident, he would have intermittent numbness and tingling in his arms.
The worker saw Dr. B. Bowker at North Bay Regional Health Centre on December 26, 2011. He reported to Dr. Bowker that, in September 2011, he developed right shoulder pain with numbness and tingling of the right hand, reducible by rolling onto his right side when sleeping. He added that, on December 22, 2011, he felt his butt going to sleep while torqueing a wrench at work. Over the next two days, he developed radiating numbness down his legs to his toes and then up to his nipples, which subsequently affected his ability to walk and urinate.
A magnetic resonance imaging (MRI) investigation of the entire spine completed on December 27, 2011 showed:
- A solid anterior cervical fusion with a plate at the C5-6 spinal level (completed in 2000)
- Degenerative changes and loss of height at the C6-7 spinal level
- An emerging disc herniation at the C7-T1 spinal level, causing focal cord compression with perhaps some signal change in the cord
- Small disc herniations at the C4-4 and C4-5 spinal levels
- A small disc herniation at the L2-3 spinal level
The worker then saw Dr. R.E. Mantle at Health Sciences North Sudbury on December 28, 2011. He told Dr. Mantle that the 2000 surgery at the C5-6 spinal level resulted from arm pains, which resolved after the surgery. He reported that his arm pains had recurred in 2010 after a fall. Dr. Mantle indicates that, in the prior week to December 28, 2011, the worker had fallen from the top of an ambulance. This is incorrect. However, he further states that over the past week the worker had developed numbness from the waist down and then from the mid-trunk down, resulting in difficulties with walking and urinating, consistent with what the worker had previously reported.
The worker’s statement to Dr. Mantle regarding his history is substantively different than what he told Dr. Bowker just two days earlier. He told Dr. Bowker that he had developed radiating symptoms down his right arm in September 2011 and then told Dr. Mantle that his symptoms had returned after the October 26, 2010 fall from the ambulance roof.
After examining the worker and reviewing the MRI results, Dr. Mantle diagnosed cervical myelopathy due to a C7-T1 disc herniation. He recommended a cervical laminectomy from the C4 to T1 spinal levels with lateral mass screw fusion. The surgery took place on December 29, 2011.
These facts and circumstances show that the worker had a longstanding injury to his cervical spine, resulting in fusion surgery in 2000. The 2011 MRI confirmed the presence of degenerative disc disease and multiple small disc herniations at numerous levels of the spine.
The initial medical reporting currently available to me shows no mention of the neck/cervical spine by either the worker or his doctors at the time of the workplace accident. Even if the worker felt no symptoms in the neck, there is also no complaint or concern about radicular symptoms or a potential neck injury documented anywhere. The initial reports show that the worker suffered a minor injury to his right shoulder. The subsequent chain of events corroborates this position.
In adjudicating benefits retroactively, one must look at the medical evidence to determine whether there is continuity between the workplace accident and the symptoms that develop. The worker returned to his regular duties shortly after the accident and performed them until February 2011. He did not work again until November 2011, when he secured a new, more physically-demanding position with a new employer. During this year, he did not complain or seek any medical attention for his neck. However, when he first sought medical attention again, he told Dr. Bowker that his radiating symptoms had returned in September 2011; not October 2010.
Furthermore, the worker’s lower extremity symptoms in December 2011 are, according to Dr. Aylett, identical to the pre-existing June 2010 symptoms and returned after a significant intervening event; the physically-demanding torqueing of the bolts in awkward positions in December 2011 at a job to which he himself confirmed he was not physically accustomed.
These circumstances, combined with the fact that the worker did not seek any medical attention, or even complain to co-workers, for a period of more than one year raises a question of whether the disc herniation is related to the workplace accident.
Noting his significant pre-existing, underlying history of cervical spine injury and conditions, the absence of any concerns or symptoms involving the neck or radiation in the upper or lower extremities following the October 26, 2010 accident, the absence of any documented continuity for one year, the significant intervening event in December 2011 (i.e. torqueing at his new job), the identical symptoms in December 2011 as compared to June 2010, and his initial statement to Dr. Bowker that his upper extremity symptoms returned in September 2011, I find that, on a balance of probabilities, the C7-T1 disc herniation was not related to the October 26, 2010 workplace accident.
CONCLUSION
I find that initial entitlement to a disc herniation at the C7-T1 spinal level is not in order.
The worker’s objection is, therefore, denied.
DATED: April 30, 2019.
C. da Cunha
Appeals Resolution Officer
Appeals Services