Worker v. Employer, 2025 CanLII 152661

20260019

worker

REPRESENTED by:

employer

REPRESENTED by:

HEARD by:

Sara Doherty, appeals resolution officer

DATED:

JANUARY 16, 2025

ISSUE

The worker, through their representative, objects to the Case Manager’s (CM) decision dated December 7, 2023 which denied initial entitlement for a cervical injury.

BACKGROUND

On December 28, 2022, this Millwright lead hand, was installing a heat exchanger weighing over 100 pounds when they felt a sharp pain under the right shoulder blade. Initial entitlement was allowed for a right shoulder, arm, elbow, hand, and wrist sprain/strain injuries.

The worker missed four shifts and returned to modified duties and hours on January 11, 2023. On March 16, 2023, the CM determined the worker’s right shoulder injury fully resolved and ongoing issues were related to pre-existing non-occupational medical conditions.

The worker underwent additional testing and reported injuring their neck during the December 2022 workplace accident. The worker continued to work at modified duties and hours until they underwent neck surgery on October 2, 2023.

In the decision dated December 7, 2023, the CM concluded the worker did not report a neck injury following the workplace accident, nor was there a prior submission of neck involvement in the claim. Entitlement to a neck injury was denied.

The worker’s objection to the denial of a cervical injury forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01, Adjudicative Process

November 3, 2008

15-02-03, Pre-existing Conditions

November 3, 2014

15-02-04, Aggravation Basis

November 3, 2014

ANALYSIS

For the reasons that follow, I find the worker has entitlement for an exacerbation of a C8 nerve compression limited to an aggravation basis. The ongoing nature and duration of health care benefits is remitted back to the Operating Area for further adjudication. In reaching this decision I have carefully considered all the available information, and relevant operational policies.

Worker position

The worker representative provided a submission dated July 10, 2024 with the Appeals Readiness Form. They argue the worker sustained an injury on December 28, 2022 that included a cervical injury. They assert the symptoms have continued from December 28, 2022 until surgical intervention and rely on the neurologist opinion that the cause of the C8 radiculopathy is due to the workplace accident. The worker representative argues the worker performed regular duties, full time prior to December 28, 2022, but has not been able to do so since. They are seeking entitlement to a cervical injury in this claim.

Employer position

The employer representative provided a detailed submission dated October 25, 2024. They agree with the denial of entitlement for a cervical injury citing a 45 week delay in reporting one and request the decision be upheld. The representative argues the December 28, 2022 workplace incident is a separate and specific accident with direct reporting of a right shoulder injury which is in keeping with the mechanics described. The representative argues the cervical condition is a result of the prior surgeries and would most likely have caused the symptoms, despite the shoulder injury.

Relevant details

The medical evidence outlines that prior to the workplace accident, the worker underwent an anterior cervical discectomy and posterior cervical laminectomy from C3-C7 with fusion and instrumentation in July 2020. It is unclear from the case record what the worker’s post surgical outcome/recovery was. However, multiple neurology reports refer to magnetic resonance imaging (MRI) from November 2022 (approximately one to two months before the accident) which indicates multilevel degenerative spondylosis with advanced facet joints arthropathy related changes contributing to multi foraminal cervical and upper thoracic nerve root compression.

In the Worker’s Report of Injury/Disease (Form 6) dated January 10, 2023, the worker reports seeking medical attention on January 4, 2023, however, this report is not on file. The initial medical report on file is dated January 8, 2023 and the diagnosis provided is sprain/strain of the right shoulder and arm. The affected areas are noted as the right shoulder, elbow, forearm, wrist, and hand. The worker was referred for an x-ray, ultrasound, and physiotherapy. They were advised to remain off work for three weeks.

The worker reports going to physiotherapy weekly, but I note these reports are not on file. The continued clinical reporting recommends reduced hours and provides limitations for lifting and to avoid the use of their right hand.

On January 14, 2023, the worker is assessed by Dr. Dost, a Neurologist. This report outlines the worker was seen for a follow up and was doing well until about two weeks ago when they lifted something heavy at work. The worker felt instant pain in the right shoulder blade radiating along the C8 and since had significant weakness of finger extension and thumb opposition to the second digit.

The neurologist outlines the worker’s presentation is most consistent with acute right C8 radiculopathy. Dr. Dost reviewed the degenerative findings recorded in an MRI of the cervical spine, including the needle electromyography (EMG) that also indicated a predominant C8 radiculopathy. The doctor provided exercises for the worker and surgery was not indicated. Dr. Dost notes the worker’s symptoms seem to be settling and suggests permanent light duties due to the pre-existing impairment.

Ongoing medical reporting continues to indicate difficulty with the right arm and further investigations. The family physician clinical record dated January 28, 2023 queries concerns of a brachial plexus injury and the worker is referred to a neurologist on a priority.

The worker is assessed by Dr. Mazidi, another Neurologist, who reviewed the worker’s past medical history and surgical interventions of July 6 and 8, 2020. Dr. Mazidi opines in their report of April 2, 2023 that the worker’s exam is abnormal with atrophy of the medial forearm and distal hand with significant weakness in the C7 to T1 mediated muscles. Dr. Mazidi ordered an urgent EMG/nerve conduction study with Dr. Gilani to assess for C7 to T1 radiculopathy vs. brachial plexopathy.

Dr. Giliani assessed the worker on April 25, 2023 with sensory and motor nerve conduction studies and a needle EMG. Dr. Giliani found an abnormal study with evidence suggestive of a chronic and nonactive C7 radiculopathy and a very severe right C8-T1 acute radiculopathy and a possible right median mononeuropathy.

The operative report dated October 2, 2023 and subsequent neurology follow up reports outlines the two previous cervical surgeries in July of 2020 and reports that on December 28, 2022, while at work the worker was moving a heat exchanger and felt immediate right arm pain which progressed rapidly over months. The clinician outlines that the most recent neurological injury relates to a workplace accident. Interestingly, it is adjacent to the previous fusion, raising the question of whether the prior fusion from C3 to C7 predisposed him to the injury at C8.

The surgical and discharge documentation from Hospital A reports the worker was admitted on October 2, 2023 and discharged on October 6, 2023, undergoing surgical intervention for a traumatic nerve root injury with right C8-T1 and C7 acute radiculopathies.

Findings

In assessing initial entitlement, I am guided by policy 11-01-01, Adjudicative Process, which outlines a five point check system for ruling on initial entitlement to benefits. All five points must be present to allow a claim. The listed criteria are an employer, a worker, personal work related injury, proof of accident, and compatibility of the diagnosis to the accident or disablement history.

I accept the criteria for an employer, a worker, personal work related injury and proof of accident are met. My finding is based on the allowance of initial entitlement to right shoulder, arm, elbow, hand, and wrist sprain/strain injuries in this claim based on the decisions dated January 13, 2023 and February 9, 2023.

I am satisfied there is no dispute concerning the employer and worker relationship, or that the worker was at work, during work hours and performing their work duties, when the injury occurred. Given the two witnesses, and minimal delay in medical attention, I agree and find that proof of an accident has been established.

This appeal primarily turns on whether a cervical injury related to the December 28, 2022 incident occurred and whether the diagnosis is compatible with the mechanism of injury described.

Entitlement for a neck injury was denied in this case due to the worker’s pre-existing condition and a delay in reporting of a neck injury. While I recognize the worker has a significant pre-existing condition, policy 15-02-03, Pre-existing Conditions, states that claims are not denied due to the existence of a pre-existing condition. This policy is not used for initial entitlement and therefore, I have not considered it in my decision.

In assessing compatibility of a cervical injury, I had regard for the clinical records. Given the nature of the worker’s pre-existing condition which included a C8 nerve compression, I find the mechanism of injury described by the worker of pushing/pulling a heavy heat exchange unit that weighed more than 100 pounds could cause a cervical injury and, in this case, exacerbated the underlying condition, rendering it more symptomatic.

In making this determination, I placed significant weight on Dr. Dost’s report of January 14, 2023. It states the worker was doing well until about two weeks ago when they lifted something heavy at work. I find the description of the onset of symptoms is consistent with what the worker reported in the case record. The report reads “He felt instant pain in shoulder blade radiating along the C8 area…noted significant weakness of finger extension and thumb opposition to the second digit”.

I interpret this to mean the onset of the worker’s symptoms is compatible with C8 radiculopathy, given that Dr. Dost stated, “the presentation is most consistent with an acute right C8 radiculopathy”. I place significant weight on this report as Dr. Dost is a neurologist, had the worker’s previous imaging available, assessed them in the past and directly examined the worker within two weeks of the workplace accident.

I acknowledge the employer’s argument that entitlement should be denied due to the 45 week delay in reporting a cervical injury and symptom onset, however I respectfully disagree. I find the worker consistently reported the same onset of pain/symptoms; however the confirmed diagnosis was not entirely clear. In making this finding, I observe the family physician’s clinical notes of January 28, 2023 wherein they query a brachial plexus injury and make a referral to a neurologist.

I also defer to the opinion of Dr. Dost who opined that the worker’s presentation was most consistent with an acute right C8 radiculopathy given the reported onset and symptoms. This diagnosis was confirmed with additional diagnostic testing.

I acknowledge the employer representative asserts that Dr. Duggal’s report of October 22, 2023 refers to the worker’s prior surgery and questions if the previous surgery left the worker vulnerable to developing an injury at the C8. As I stated above, claims are not denied on the basis the worker has a pre-existing condition.

I do find that compatibility exists between moving/pushing/pulling a 100 pound unit and an exacerbation of a pre-existing nerve compression rendering it more symptomatic. I place significant weight on the opinion of the Neurologists Dr. Dost, and Dr. Duggal that this triggered an onset of symptoms. Based on the evidence before me, I am satisfied that the fifth criteria of medical compatibility has been met. In my view, the workplace accident exacerbated the worker’s pre-existing C8 nerve compression, rendering it symptomatic. This is supported in Dr. Dost’s January 14, 2023 report.

I recognize the employer’s concerns that the October 2, 2023 report refers to the worker’s prior surgery, which questions if it left the worker vulnerable to developing an injury at the C8. I note the MRI and the neurologist reports identify a significant pre-existing condition that made the worker vulnerable. I agree with the employer representative that there is clear evidence the worker had a significant pre-existing condition. I do not find the December 28, 2022 accident caused the nerve root compression; I find that it exacerbated the pre-existing nerve root compression. Additionally, based on the information before me, this worker was performing their full pre-injury duties on a full-time basis and there is no indication of any difficulties prior to the December 28, 2022 accident.

Given the significant nature of the worker’s pre-existing condition, for which they had sought health care treatment, I find policy 15-02-04, Aggravation Basis, is applicable. This policy guides decision makers on when to consider entitlement to benefits on an aggravation basis. The policy explains that in cases where the worker has a pre accident impairment and suffers a minor work related injury/disease to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre accident state.

The policy goes on to explain the intent is to limit entitlement to the injury that is work related. The policy is not applied in situations where there is no pre accident impairment, or the severity of the accident on its own would have resulted in additional impairment. The policy provides the following definitions:

Aggravation: is the temporary effect that a minor work-related injury/disease has on a pre-accident impairment requiring health care and/or leading to a loss of earnings.

Minor accident: is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury/disease.

Pre-accident impairment: is a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide.

Pre-accident state: is the worker's level of impairment and work capacity prior to the work-related injury/disease.

To accept entitlement on an aggravation basis, two criteria must be met – a pre-accident impairment and minor accident. With respect to a pre-accident impairment definition, I find the evidence supports this criterion is met. This is confirmed in the many neurologist reports that detail the two cervical surgeries the worker underwent in July 2020. I also note there is a cervical spine MRI from November 2022. I find this is clear evidence of health care treatment. Although there is an absence of detail regarding the employment status after the 2020 surgery, I accept that, at minimum, the worker would have required modified duties. In making this determination I have relied on the neurologist reports of April 2, 2023 and April 24, 2023 that state the worker wore a neck brace for six months after the surgery.

In reviewing the definition for a minor accident, I note the accepted accident history is the worker was aligning a heat exchange unit weighing approximately 100 pounds. In the Form 6, the worker states “I had to man handle the unit.” I interpret this to mean they maneuvered the unit by pushing/pulling it. In my view, maneuvering a heavy unit would not be expected to cause more than a non-disabling or minor disabling injury in the average person. Therefore, I find the reported accident to be minor in nature.

Given I have found that a pre-accident impairment exists, and a minor accident history is evident, I find entitlement should be limited to an aggravation basis as outlined in policy 15-02-04 Aggravation Basis.

I find there is insufficient evidence to determine what the worker’s level of impairment was prior to the December 28, 2022 accident and if, or when the worker returned to their pre-accident state. Therefore, ongoing entitlement is remitted back to the Operating Area. I recommend obtaining all the pre-accident medical records from 2020 to December 28, 2022, including details of what led to the November 2022 MRI. All post-accident reports, including physiotherapy notes should be obtained in order to delineate what is the responsibility of this claim.

CONCLUSION

I find the worker has initial entitlement to an exacerbation of a C8 nerve compression on an aggravation basis. The ongoing nature and duration of health care benefits is remitted back to the to the Operating Area.

The worker’s objection is allowed-in-part.

DATED January 16, 2025

Sara Doherty

Appeals Resolution Officer

Appeals Services Division