Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on December 17, The worker did not participate in the hearing, but was represented by Mel Strong, Appeals Officer with the Government Members Office. 2. The Commission participated in the hearing process and was represented by Kathy Fry, Hearings Officer. 3. The employer was not represented. Introduction 4. On March 19, 1992 the worker injured his neck while employed as a Fisherman. The diagnosis was muscle strain. Physiotherapy was prescribed. Wage loss benefits were approved. A return to work commenced on November 1, In October 1995 the worker filed for a recurrence of his 1992 neck injury. The claim was accepted. The worker was medically cleared to return to work as of October 6, In March 2010 a second recurrence claim for the 1992 neck injury was submitted. 7. On April 30, 2010 the Commission s Medical Consultant determined the worker s neck issues were more related to the presence of degenerative disc disease (DDD) of the cervical spine. The recurrence claim was denied on June 1, On March 25, 2013 the worker submitted a third recurrence claim in relation to his 1992 neck injury. Updated medical information was requested and reviewed. 9. On May 10, 2013 the Commission s Medical Consultant reviewed the file. A June 4, 2013 Intake Adjudicator s decision denied the recurrence claim. The worker appealed. 10. The August 2, 2013 Internal Review decision upheld the denial of the recurrence claim. It is this decision the worker is appealing before the Review Commissioner. 1

2 Issue 11. The worker is requesting that I find the Commission erred in denying his current neck condition is related to his March 1992 work injury. The worker requests that I find he is entitled to compensation on the basis of a recurrence. Outcome 12. The decision of the Commission dated August 2, 2013 is upheld. There is no change in the status of the worker s claim in relation to his request for further compensation benefits. Legislation and Policy 13. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review 2

3 commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 14. Other relevant sections considered are Sections 2(1)(o), 60 and 77 of the Act, along with Policy EN-03: Recurrences. Relevant Submissions and Positions 15. Mr. Strong submits the worker s current symptoms are related to the March, 1992 work injury. He notes a recurrence was accepted in 1995 though wage loss benefits were not provided at that time. 16. Much of the investigation at the time of the injury concentrated on the lower back and likely little attention was paid to the neck injury he submits. Mr. Strong notes, however, the original Form 6, Worker s Report of Injury identified a neck injury as well as the initial medical reporting. Mr. Strong identifies various medical reports such as 8/10 Forms that 3

4 confirm the injury and its effects to the worker s neck including the report of the Neurosurgeon. 17. Mr. Strong notes the following from the Neurosurgeon in relation to the worker s neck condition: On June 25, 1992, the Neurosurgeon reported: Thanks for asking me to see this pleasant fellow again. He has been doing physio. He gave work a try but I personally feel that he probably did it too early. All the pain he is having is in his neck. He has no pain in his arms. I still feel that this is primarily a muscular injury. I have no question about his complaints being genuine. I have advised him to carry on with therapy. I think that he probably will require at least 4-8 more weeks of therapy before he goes back to work. On September 5, 2006, the Neurosurgeon reported: Thank you for asking me to see this gentleman. I saw him 7 or 8 years ago for his neck. I have never seen him in the past for his back. He works as a Fisherman. He is self-employed. In fact, he just recently bought a new boat. He has a couple of other people working with him. He didn t report any specific injury in the course of his employment. He just one day felt a sharp pain in his right leg and he said his leg gave away and he fell. Since then, which this happened in July, he has been complaining of low back pain radiating into his right leg but only as far as his knee. Some days he feels reasonably good, other days depending on what he does he has significant pain. He has been seeing a physiotherapist but there hasn t been any major improvement thus far. I asked him if he had any previous back problems. He said he had a disc problem in 1982 which got better and he has had no other problems since this incident. He denies any significant medical problems On September 26, 2007, the Neurosurgeon reported: I strongly suspect that this gentleman has a recurrent muscular injury. It seems to be starting to settle down again. There is really nothing we can do for this gentleman from a surgical point of view. He said he is not that keen on having therapy now. He said he had an abundance of it in 2006 and overall, he doesn t feel that it did a lot for him other than just give him some symptomatic relief. He does seem to be spontaneously improving. I would just give him more time now and see if he recovers. His fishing season is just about over, so hopefully he will recover more during the Winter to get back next year. 18. There is also a reference to correspondence to the Commission dated November 14, 2008 from the worker s treating physician. It states: I am in receipt of your fax dated November 3, 2008 in connection with [the worker]. Sorry for the delay in a reply, as I was away until November 11,

5 I have gone through [the worker s] chart extensively. I have reviewed all of his injuries in depth. Further I have noted [the Neurosurgeon s] report as well. I have gone through his Functional Capacity Evaluation, which was done on [the worker] recently. I am sure you are aware of all these details, hence your concern about him returning to his previous occupation as a fisher person. This man has worked, as best as he could, over the years and has worked even after his injury, several attempts were made by [the worker] for the labor market recently. All these attempts were not a success. In fact, [the worker] did get worse after each and every time he returned to work. Considering all his functional tolerances, his educational background and his geographic location, I find this man will have to accept the fact that he cannot work gainfully in the future. Retraining will be of no value in his case, hence [the worker] will have to make plans for the future with whatever help he can procure form different safety nets Workers Compensation Benefits, Canada Pension Plan or other insurances. 19. Mr. Strong notes the worker has written the Commission to communicate his concerns in relation to his ongoing symptoms. The letter, received by the Commission on June 24, 2010, states: I hurt my neck in 1992 and I have being [sic] seeing [treating physician] and [neurosurgeon] ever since and [treating physician] prescribes all my pills for my neck and lower back and [neurosurgeon] checks on my discs in my neck. I am taking Lyrica and Tylenol for my lower back and it is doing my neck some help. But now the last year my neck is getting worst [sic]. When I turn my head I have to turn my whole body, if not I get dissiness [sic] and blurred vision. [Neurosurgeon] told me it was coming from the discs in my neck. 20. On July 15, 2010 the worker s treating physician provides another correspondence to the Commission. Mr. Strong notes the correspondence attempts to clarify a Form 8/10. It states: The problem of neck is due to injury accelerated due to injury degenerative disc. This is necessary to be explained as this man has never had any other pathology that would cause the neck problem at an accelerated pace for his age group. 5

6 Section 6 states injury to neck, repeated injury. Patient did not stop work despite injury, hence he is worse now and he has flare-up. I hope this clarifies what you are having a problem with. 21. A report by the Anesthesiologist dated April 9, 2012 is also submitted as supporting the worker s position. The report states: This patient was referred by [the Neurosurgeon] to me because has been complaining of pain in the middle of the neck as well as in the right shoulder which goes back to the accident he had in 1992, 20 years ago. He does not sleep. Sometimes in the night time, he wakes in the middle of the night and the pain is so severe sometimes. Usually he tries to control the pain with Tylenol. He is on medications for his pituitary gland as well as removal of parathyroid gland. He is allergic to Penicillin. He is a smoker of one pack. 22. Mr. Strong submits the worker has continued to experience symptoms and problems with his neck since the injury in March 1992 and this is supported by the evidence noted. The worker is presently working in a light duty capacity in employment in Alberta. He notes the worker requests the Commission acknowledge his deteriorating condition and provide compensation accordingly. 23. Ms. Fry, on behalf of the Commission, notes the worker has been diagnosed with spinal stenosis. She provided information on this condition by way of a handout from the internet site, Wikipedia. She notes that the internet information provides the following definition on this condition: Spinal stenosis is an abnormal narrowing (stenosis) of the spinal canal that may occur in any of the regions of the spine. This narrowing causes a restriction to the spinal canal, resulting in a neurological deficit. Symptoms include pain, numbness, paraesthesia, and loss of motor control. The location of the stenosis determines which area of the body is affected. With spinal stenosis, the spinal canal is narrowed at the vertebral canal, which is a foramen between the vertebrae where the spinal cord (in the cervical or thoracic spine) or nerve roots (in the lumbar spine) pass through. There are several types of spinal stenosis: lumbar stenosis and cervical stenosis being the most frequent. While lumbar spinal stenosis is more common, cervical spinal stenosis is more dangerous because it involves compression of the spinal cord whereas the lumbar spinal stenosis involves compression of the cauda equina. Cervical spinal stenosis can be far more dangerous by compressing the spinal cord. Cervical canal stenosis may lead to serious symptoms such as major body weakness and paralysis. Such severe spinal stenosis symptoms are virtually absent in lumbar stenosis, however, as the spinal cord terminates at the top end of the adult lumbar spine, with only nerve roots (cauda equina) continuing further down. Cervical spinal stenosis is a condition involving narrowing of the spinal canal at the level of the neck. It is frequently due to chronic degeneration, but may also be congenital or traumatic. Treatment frequently is surgical. 6

7 Heredity: Spinal canal is too small at birth Structural deformities of the vertebrae may cause narrowing of the spinal canal Instability of the spine, or spondylolisthesis: Trauma: MRI A vertebra slips forward on another Accidents and injuries may dislocate the spine and the spinal canal or cause burst fractures that yield fragments of bone that go through the canal. MRIs are helpful at showing exactly what is causing spinal nerve compression. 24. Ms. Fry also references the report of the Anesthesiologist dated April 9, She notes the following: I did discuss with him the cervical epidural, explaining the pros and cons. As I look at his MRI it shows that there is a mild spinal canal stenosis at C3-4, C4-5 levels with disc osteophyte complexes and uncomfortable degenerative changes. These might be causing effacement of the subarachnoid space anterior to the cord and he has, on the right side, radial numbness also. 25. Following the injury, Ms. Fry notes the worker did return to work and spent most of his working life during that time working in the fishery up until The worker s injury was diagnosed as a muscular injury at the time. 26. Ms. Fry notes a 2006 injury was also accepted for the worker s lower back. Following this injury the worker was assessed in 2008, in relation to his earning capacity and was found to have an eight-hour workday tolerance at the light to medium level. The worker has been in receipt of partial Extended Earnings Loss (EEL) benefits as a result of his back injury since that time. 27. Ms. Fry suggests the worker s goal currently is to secure full EEL benefits by considering the effects of both the neck and back injury on his earning capacity. She notes, however, the worker is currently working full time in a light duty capacity and full EEL benefits would not appear to be warranted as a result. 7

8 28. With respect to any linkage between the worker s injury and the current neck degeneration, Ms. Fry acknowledges that trauma can trigger the condition of spinal stenosis. She notes, however, that such trauma would be such to dislocate the spine or spinal canal, and cause burst fractures, etc. The worker, however, did not sustain such trauma, but did sustain a muscular type of injury. Ms. Fry also submits a 22 year space between the injury and the spinal stenosis diagnosis must be factored into the consideration of compensability for the current condition. Further, she submits, such a gap indicates there was no severe trauma at the time of the injury 22 years ago requiring ongoing medical intervention. 29. Ms. Fry acknowledges the worker has complained of neck pain throughout the years, however, his treating physicians have treated him for his ongoing degenerative condition and have not established a link between the current symptoms to the work injury of The condition of spinal stenosis, she submits, is not the responsibility of the Commission as it is not a recurrence of the original injury. 30. As part of the review of the worker s request for recurrence, the Commission sought a medical opinion from one of its Medical Consultants. A Case Worksheet Note dated May 10, 2013 from the Medical Consultant states: I have reviewed all of the medical information added to [the worker s] file since my review in April There is no new medical information on the aetiology of [the worker s] neck symptoms. There has been a slow progression of his cervical degenerative disc disease. This being the natural course of this condition. He has been having cervical epidural steroid injections by Dr. Kamra for the past couple of years. As I mentioned in my earlier CWS [the worker] is suffering from cervical DDD. There is no evidence to support that [the worker s] cervical DDD is the result of the workplace incident in March 1992 or his work over the years as a fisherman/mariner. DDD is a very common condition with a large number of factors playing a role in its aetiology and progression. Genetics, diet, social habits, recreational pursuit, medications, general medical condition just being a few of the more important determinants. Trauma that does not result in fractured bones or significant ligamental disruption would not play a significant role. 31. Ms. Fry also references the reports of the Neurosurgeon of June 25, 1992 and October 1, 1992 and notes the following respectively: Thanks for asking me to see this pleasant fellow again. He has been doing physio. He gave work a try but I personally feel that he probably did it too early. All the pain he is having is in his neck. He has no pain in his arms. I still feel that this is primarily a muscular injury. I have no question about his complaints being genuine. I have advised him to carry on with therapy. I think that he probably will require at least 4-8 more weeks of therapy before he goes back to work. I saw [the worker] back in the clinic today. He is actually significantly improved since I last saw him. He was doing physiotherapy which he found 8

9 aggravated him, if anything. Since he has given up the therapy he claims he is much improved. In fact, he told me today his is almost ready to return to work. He feels maybe another couple of weeks. I told him he can see you again, and you can decide in terms of final clearance for work. Thank you for asking me to see this gentleman again. As you may recall, I saw him several times three years ago when he injured himself at work. He struck his head and developed neck pain. It was thought at the time that he had a muscular injury. This eventually settled down and he returned to work. This flared up again and he has been troubled by it for the past year. When we examined him today there is still no objective neurological findings. Because this has been going on for so long now, I think we are going to arrange for him to have a MRI scan of his neck. This gentleman s MRI scan showed some disc bulging at C3-4. No significant spinal cord or nerve root compression. There is no need for surgery. Meanwhile when we see him today he says he has gotten better and is having very little pain. 32. Ms. Fry points out that the January 15, 1996 report from the Neurosurgeon confirms disc bulging at C3-4, but spinal stenosis is not noted. 33. On November 21, 1995 the Commission s Director of Medical Services was asked to consult on this claim as the worker had a number of other medical conditions unrelated to his compensable conditions. Ms. Fry submits this report is very informative and provides some context in relation to all the worker s conditions and should be fully considered as part of the review process. 34. Ms. Fry also references a Case Management Memo of February 9, 1992 by the Case Manager which states: [The worker] is not requesting TEL benefits as he is presently in receipt of TAGS as a result of the fishery. The main reason for the meeting was wondering if we could assist him in a court case which he presently has ongoing and has nothing to do with his work injury. The only problem that is stopping him from returning to work at this time, is this matter involving the fishing gear and fishing license. 9

10 35. Ms. Fry notes the worker was, at that time, seeking assistance from the Commission to retrieve or repurchase his fishing license he had sold when he commenced the TAGS program. The worker s communication with the Commission in 1996 had nothing to do with his neck condition. 36. It is argued that the details found in the Functional Capacity Evaluation of February 18, 1997 provide some insight in the level of seriousness of the worker s injury in Ms. Fry notes the following and also argues that had the injury been serious or traumatic it would not have taken the worker so long to be treated. [The worker] is a 43 year old man who was injured on March 18, 1992 when working as a Fisherman for [the employer]. He indicated that the injury occurred when he was getting aboard the boat and hit his head. [The worker] reported that he went out to sea for about 5 or 6 days and then went to see his family doctor who sent him for x-rays. He then went back out fishing for another trip, but when he came back had to see his doctor again due to increasing neck pain. [The worker] reported that he continued working for approximately one year, but was still having problems with his neck. He has not worked since this time. He was subsequently diagnosed with neck strain 37. Another report from the Neurosurgeon dated November 3, 2003 is also referenced by Ms. Fry as supporting the Commission s position. It states: Thank you for asking me to see [the worker]. I haven t seen him now for several years. He works as a fisherman and the last time I saw him he was off for a few months, but he generally has been working all along. He continues to work. In 1996 I did an MRI scan on him that showed a small disc bulge at C3-4. He describes really severe mechanical type neck pain. He has no neurological type symptoms and nothing to find on exam today. I am going to repeat his MRI scan to see if there has been any progression of his disc disease. The subsequent MRI confirmed a disc bulge at C3-4 and L In 2008, the Neurosurgeon again assesses the worker. Ms. Fry notes this is 15 years post injury and his report of March 20, 2008 is noted as follows: This gentleman returned to see me today. I have seen him many times over the years. I think this is a routine assessment requested by WCB. That is what he told me. He is due to go back fishing soon. His back has been very good lately and in fact it is the best time I have seen him today. He has an excellent range of movement. He has no neurological deficit. No nerve signs. He is not complaining much in the way of pain. Every now and then he gets some sense of numbness in his right leg, but certainly I don t think he needs investigation right now and from my point of view, I think that he shouldn t have any difficulty at all this season with going fishing. 39. Ms. Fry references a second Functional Capacity Evaluation dated October 20, 2008 and argues the worker s neck was not noted to be an issue in the worker s assessment of earning capacity at that time. 10

11 40. In 2010, Ms. Fry notes the Commission had reviewed the request for recurrence and the Internal Review Specialist concludes her report as follows: A review of the medical reports notes that a MRI was completed on your cervical spine in November It noted that there was some central disc bulging. The cord was not compressed. There was a very mild central disc bulge at C4-5. There was a bulging disc and osteophyte noted at C3-4. [The treating physician s] report of June 7, 2010 indicates that you are worse and that your neck is very stiff. He indicates that you were referred to [the Neurologist]. He also indicates that you have Degenerative Disc Disease. The Intake Adjudicator in reviewing your request for recurrence referred your claim to one of the Commission s Medical Consultants for a review. The Medical Consultant noted that the latest reports on file concerning your neck do not describe any new injury or any drastic symptoms rather it would seem as if you have a degree of cervical DDD. From my review of the medical information on your file, I would have to agree with this opinion. The medical information on file does not favour that your neck symptoms are related to your March 1992 work injury. 41. Ms. Fry concludes by submitting that the worker is the only one maintaining that his neck condition is a result of his work injury in The worker returned to pre-injury work following the injury and a link has not been established between the worker s muscular injury in 1992 and the current neck condition. It is argued that the worker s condition of spinal stenosis is not a recurrence of the 1992 injury. Ms. Fry submits, the evidence, when weighed in accordance with Section 60 does not weigh in favour of the worker s position. She requests the Commission s decision be upheld. Analysis 42. I acknowledge the worker s argument requesting compensation for his current neck condition. As Ms. Fry submits, this is not truly a request for recurrence, but a request that the Commission include his neck condition in their determination on his ability to work and earn and ultimately his entitlement to EEL benefits. This is further supported by the worker s Request for Review application wherein, I note, he requests wage loss benefits. 43. With respect to request for recurrences, I note Policy EN-03: Recurrences outlines the requirements for a recurrence/reinstatement claim and highlights the following factors as necessary for acceptance: The current symptoms must result from and are medically compatible with the original work injury. To properly decide the matter of medical compatibility, a worker's complete medical history -- particularly since the original work injury -- must be compared with his or her current condition. A medical opinion from the 11

12 Commission s medical officer will be necessary to assist in determining medical compatibility. The most basic indicators of medical compatibility are that the same body part(s) is affected and similar symptoms are reported. Even though body part and symptoms may be consistent, however, other important factors must be reviewed before a recurrence is verified. For example, the nature and significance of the original injury must be consistent with the current disability. It may be decided that a recurrence has occurred when disabling symptoms arise sometime after stabilization from a traumatic original injury. Recurrences may be more readily expected following major injuries which cause objectively verifiable physical damage and a long period of disability. On the other hand, it is less likely that a minor soft tissue injury will be judged medically compatible with disabling symptoms which develop more than 12 months after the worker was capable of returning to work. Such a case may be accepted as a recurrence if, on the balance of probabilities, there is clear and objective medical evidence, but the possibility that the original injury is the cause of current symptoms must be weighed against other important variables: expected recovery due to the passage of time; the activities of daily living; aggravating lifestyle factors; or, depending upon the circumstances, the effects of natural physical deterioration processes. A case will not be considered a compensable recurrence where some other variable -- such as a new injury, accident, disease, or other process -- has intervened as a significant cause of the current condition. Continuity of symptoms during the period between stabilization or recovery from the original injury and the onset of the current impairment is a reliable indicator of a direct causal relationship. Lack of continuing symptoms, however, does not entirely rule out the possibility that the current impairment is a recurrence. 44. I have considered the submission on behalf of the worker, the evidence contained in the file, and the reasoning provided by the Commission, in denying the claim. I find the Commission s assessment of the available evidence and the application of Policy EN-03: Recurrences to be appropriate. The weight of medical evidence does not support the medical compatibility of symptoms as described in Policy EN-03: Recurrences. I note there is considerable medical evidence for a multitude of conditions existing on the claim. The evidence in relation to the worker s neck, with respect to his current request, is somewhat limited and does not support a recurrence, rather it speaks to the existence of a noncompensable condition of spinal stenosis. 45. Assessing the worker s claim, from the perspective of earning capacity and additional EEL entitlement, I note the worker s latest request for additional compensation was in March, At that time, the worker submitted a Form 6, Worker s Report of Injury claiming 12

13 benefits in relation to his 1992 neck injury. The medical evidence around this time begins with a Form 8/10 Report dated November 18, The medical evidence prior to this time primarily addresses the worker s low back symptoms as well as a number of noncompensable issues. 46. In the November 18, 2009 Form 8/10 report, the treating physician noted the worker was referred to his treating Neurosurgeon. The Neurosurgeon assessed the worker on December 23, 2009 and noted the following: Thank you for asking me to see [the worker]. I haven t seen him now in two years. As your letter indicates, I think he is trying to get Canada Pension. He never did get back to work. He hasn t worked now for well over a year. He has chronic back pain. He also developed chronic neck pain. He doesn t describe any neurological type symptoms just a lot of aching and pain mostly mechanical type in nature. When I examined him, he has no neurological deficit. I think this gentleman s problem is well established chronic pain. I don t think this gentleman will get back to work. He has been investigated in the past and I don t think that further investigations at this time are indicated. Anyway, I don t think we will need to do anything further with him at present. 47. From this report, I note there is a reference to chronic neck pain. The neck pain, however, was not consistently reported in previous medical evidence and the current reporting does not indicate there has been any type of intervening event to trigger an onset of symptoms in relation to the original 1992 injury. In fact, all indications are that the worker returned to work with no ongoing neck symptomatology for quite some time. The medical evidence suggests there was a full recovery from the effects of the original injury. I note the following: a. A February 18, 1997 Functional Capacity Evaluation Report noted the worker to have an eight-hour workday tolerance at the light to medium level. b. The worker eventually returned to work in the fishery. c. A report from the Neurosurgeon, in relation to the worker s back, dated March 20, 2008 concludes with I don t think he needs investigation right now and from my point of view, I think that he shouldn t have any difficulty at all this season with going fishing. d. The worker is currently working in a light duty capacity in Alberta. 48. In addition, I note the opinion of the Medical Consultant dated April 30, 2010, which states: I have reviewed [the worker s] complete file, claim # [The worker] is a 56 year old fisherman that sustained a STI to his neck in March He was followed closely by his GP and was seen in consultation by [neurosurgeon]. It was felt that he has a simple soft tissue injury. [The worker] has a recurrence of 13

14 his neck symptoms in the fall of His claim was re-opened as a recurrence. The flare-up was short lived. [The worker] had further problems with his neck in the spring of He was again seen by [neurosurgeon] with no surgical pathology discovered. There are no reports on file of any neck problems between 2003 and [The worker] has been deemed unable to RTW due to a back injury. The latest reports on file concerning his neck do not describe a new injury or any drastic symptoms. It would seem as if he has a degree of cervical DDD. The balance of medical probability does not favour that his neck symptoms are related to the cervical DDD which is a very common condition during the 5 th decade and would not caused [sic] by his workplace injury or activities. I trust this is satisfactory. 49. Also noteworthy to this issue, is the Internal Review decision of July 23, The Internal Review Specialist at that time also reviewed a request from the worker for a recurrence of injury. In her decision, the Internal Review Specialist noted the following: A review of the medical reports notes that a MRI was completed on your cervical spine in November It noted that there was some central disc bulging. The cord was not compressed. There was a very mild central disc bulge at C4-5. There was a bulging disc and osteophyte noted at C3-4. [The treating physician s] report of June 7, 2010 indicates that you are worse and that your neck is very stiff. He indicates that you were referred to [the Neurologist]. He also indicates that you have Degenerative Disc Disease. The Intake Adjudicator in reviewing your request for recurrence referred your claim to one of the Commission s Medical Consultants for a review. The Medical Consultant noted that the latest reports on file concerning your neck do not describe any new injury or any drastic symptoms rather it would seem as if you have a degree of cervical DDD. From my review of the medical information on your file, I would have to agree with this opinion. The medical information on file does not favour that your neck symptoms are related to your March 1992 work injury. 50. Most notable recent evidence consists of the following: Neurosurgeon Report dated October 27, 2011, which states: This fellow had an MRI of his C-spine, which shows some degenerative disc disease but nothing surgical. I discussed things with him today and I told him that I am going to make a referral for them to see Dr. Kamra, to see if he has anything to offer him in terms of pain control. He agrees with this, so a referral is being made. Anesthesiologist s Report dated April 9, 2012, which states: This patient was referred by [the Neurologist] to me because has been complaining of pain in the middle of the neck as well as in the right shoulder which goes back to the accident he had in 1992, 20 years ago. He does not 14

15 sleep. Sometimes in the night time, he wakes in the middle of the night and the pain is so severe sometimes. Usually he tries to control the pain with Tylenol. He is on medications for his pituitary gland as well as removal of parathyroid gland. He is allergic to Penicillin. He is a smoker of one pack. I did discuss with him the cervical epidural, explaining the pros and cons. As I look at his MRI it shows that there is a mild spinal canal stenosis at C3-4, C4-5 levels with disc osteophyte complexes and uncomfortable degenerative changes. These might be causing effacement of the subarachnoid space anterior to the cord and he has, on the right side, radial numbness also. 51. Also relevant is the opinion of the Medical Consultant of May 10, I note it states: I have reviewed all of the medical information added to [the worker s] file since my review in April There is no new medical information on the aetiology of [the worker s] neck symptoms. There has been a slow progression of his cervical degenerative disc disease. This being the natural course of this condition. He has been having cervical epidural steroid injections by [the Anesthesiologist] for the past couple of years. As I mentioned in my earlier CWS [the worker] is suffering from cervical DDD. There is no evidence to support that [the worker s] cervical DDD is the result of the workplace incident in March 1992 or his work over the years as a fisherman/mariner. DDD is a very common condition with a large number of factors playing a role in its aetiology and progression. Genetics, diet, social habits, recreational pursuit, medications, general medical condition just being a few of the more important determinants. Trauma that does not result in fractured bones or significant ligamental disruption would not play a significant role. (emphasis added) 52. In reviewing the preceding evidence on the balance of probabilities, I note Section 60 states: 60. (1) An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker. (2) The commission may require the proof which it considers necessary of the existence and condition of dependents in receipt of compensation. 53. I find the weight of medical evidence does not support the worker s request for further compensation benefits. The weight of evidence confirms the worker is suffering from a degenerative condition which is not the result of his March 1992 injury. With respect to further entitlement to EEL benefits, the worker is currently working in a capacity already identified by the Commission as within his functional abilities and his ability to maintain this employment supports the conclusion there is no further lost capacity at this time. Consequently, there is no requirement to consider the issue of the EEL benefits. 54. Upon review of the Internal Review Specialist s decision of August 2, 2013, I note the Internal Review Specialist reviewed the file evidence and considered the relevant provisions 15

16 of the Act and Commission Policies. I note he concludes his decision as follows and I concur with his findings:, it is clear that the initial work injury of 1992 was not significant to the point that it caused disc pathology or radiculopathy, etc. It was diagnosed as a muscular strain. A muscular strain would not be considered major to the point you would experience symptoms some 20 years after the fact. It would be more probable to expect recurring symptoms from disc pathology as a result of a significant work injury. This is not seen in your case. The other issue to consider is the fact that you did return to work as a result of the muscular strain. The Commission s policy notes that a case will not be considered a compensable recurrence where some other variable has intervened as a cause of the current condition. This is confirmed by the Consultant in his review. This is also confirmed through the medical reporting. Following your return to work in 1992, there is no evidence to support continuing medical care, work restrictions or job modifications, etc., I have reviewed your case and considered the evidence and I am satisfied the Adjudicator has made the appropriate determination, based on the evidence before her, that your current cervical problems are not related to the March 19, 1992 work injury. The evidence more strongly supports that your current problems are a continuation of issues you are experiencing with your degenerative disc disease of the cervical spine. Given my review, I find I must support the decision of the Adjudicator. (emphasis added) Decision 55. The decision of the Commission dated August 2, 2013 is upheld. There is no change in the status of the worker s claim in relation to his request for further compensation benefits. Review Denied Marlene A. Hickey Chief Review Commissioner January 17, 2014 Date 16

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