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: Gordon Murphy Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Glynmill Inn in Corner Brook, NL on September 1, The worker attended the hearing via teleconference and was unrepresented. 2. The Commission was represented by Kathy Fry, Hearings Officer. 3. The employer did not attend nor participate in the hearing process. Introduction 4. The worker sustained an injury to his neck and shoulders on October 12, 2001 when he fell during the performance of his duties. There was no lost time from work and no claim was filed with the Commission. 5. The worker saw his chiropractor on October 17, 2001 related to his injury. 6. The worker next saw his treating physician on November 17, 2010, complaining of headaches and pain in the cervical spine going into the right shoulder. The worker did not relate his symptoms to his 2001 injury. 7. On May 13, 2015 an x-ray of the worker s cervical spine noted advanced degenerative changes at the C5 6 level of the cervical spine, as well as degenerative changes at the C3 4 level. 8. The worker saw his treating physician on February 19, 2015 regarding his neck problems. 9. On March 10, 2015 the Commission s medical consultant issued a report with respect to the worker s claim for recurrence. 10. On March 19, 2015 the intake adjudicator denied the worker s claim for recurrence. The worker appealed to the Commission s internal review division. 1

2 11. On May 13, 2015 the internal review specialist supported the March 19, 2015 decision by the intake adjudicator. The worker appealed to the Review Division. Issue 12. The worker is requesting a review of the decision of the internal review specialist dated May 13, 2015 and is requesting I find the Commission erred in denying his request for recurrence of injury. Outcome 13. It is my finding that the Commission acted in accordance with the Act and Policy and did not err in its decision of May 13, 2015 to deny the worker s claim for a recurrence of his 2001 injury. With respect, the review is denied. Legislation and Policy 14. The jurisdiction of the Review Commissioner is outlined in the Workplace, Health, Safety and Compensation Act ( the Act ), Sections 26.(1) and (2), 26.1 and Other relevant sections considered are Sections 2(1)(o), 19(1) and 60(1) of the Act, along with Policy EN-03: Recurrences. Relevant Submissions and Positions 16. The worker testified that he fell off a crate unto a concrete floor and hurt his neck and shoulders on October 12, 2001, during the performance of his duties. The worker stated he saw a chiropractor at the time for treatment for his injuries, but did not miss time from work. 17. The worker stated he has no recollection of filing an injury claim at the time, although he may have done so. He indicated he had not then, nor has he since, received any correspondence from the Commission with respect to the 2001 injury. Had he received such correspondence and had been made aware that he would be able to receive medical treatment for his injuries, he would have done so. But his primary intent was to continue working. 18. The worker submitted that in 2004 he visited his treating physician or a physiotherapist he is not sure who concerning his shoulder problem, but he does not recall making a claim to the Commission because he was not aware of the Commission policies or what he was required to do in this regard. 2

3 19. When the worker saw his treating physician in 2010 for his headaches and pain in his back and shoulder, he was unaware of a previous claim number with the Commission, so he did not make any such reference to his doctor. 20. The worker disagreed with the determination made by the Commission s medical consultant, who the worker says he had never even met. The worker stated that his treating physician and his chiropractor affirm that he has symptoms that are similar and related to his 2001 injury and he questions how the medical consultant can form a definite opinion on a person he has never examined. 21. The worker testified he has had no other injury. Therefore, the symptoms he has been experiencing with respect to sleep deprivation, headaches and neck pain and the related arthritis all relate to the injury of He stated he is not claiming compensation in this case but treatment for his symptoms. 22. The worker requested the decision of May 13, 2015 by the Commission be overturned and his current symptoms be considered a recurrence of his 2001 injury. 23. Ms. Fry, on behalf of the Commission, stated that the evidence does not support that the worker s current symptoms are connected to the 2001 injury. In fact, Ms. Fry submitted, that injury was of a minor soft tissue nature of which the worker is unable to even recall the details of whether or not he even filed an injury claim. The worker did not lose any time from work and the only medical report on file related to that incident was a report of October 29, 2001 from a chiropractor. The chiropractor noted the circumstances of the worker s injury and provided a diagnosis of a cervical sprain and myofascial strain, with issues related to the C4 to C6 cervical spine levels. Ms. Fry submitted that the Commission considers this to have been a soft tissue injury that would resolve in a reasonable period of time. 24. Ms. Fry noted that there was no evidence of trauma involved in the 2001 injury, although she acknowledged the worker did fall onto the concrete floor. Trauma would suggest a more major type of injury resulting from a direct blow to the body and subsequent multiple contusions and fractures, disability, lost time from work and ongoing treatment. In this case, the worker did not even miss time from work. 25. Ms. Fry submitted that the worker was unable to provide evidence of medical visits or treatment subsequent to 2001 and did not visit his treating physician again until November 2010 complaining of headaches and pain in the cervical spine and right shoulder and the treating physician did not relate anything from that visit to any previous work injury. 26. Ms. Fry stated the worker is contending his current symptoms are a recurrence of the 2001 soft tissue injury. However, the significance of the original injury is critical to the determination by the Commission that such an injury is a recurrence of the original injury. The recurrent neck pain and other issues are not related to the original injury, Ms. Fry stated, as there was no injury claim at the time, no follow-up medical intervention and the worker did not visit his treating physician until ten years later in

4 27. Ms. Fry noted that Policy EN-03: Recurrences states that A recurrence is a return to disabling symptoms directly related to an original work injury, which result in loss of earning capacity She noted, and as already stated, the worker did not miss any time from work and was not disabled. In order for a claim to be considered a recurrence, Recurrence symptoms must result from and be medically compatible with the original injury. The nature and significance of the original of the original injury and the length of time since the original injury are important factors to be weighed Ms. Fry stated that there is no evidence of medical compatibility with the original injury and the worker did not find it necessary to visit his treating physician on any matter remotely relevant for approximately ten years following the original injury. Furthermore, Ms. Fry noted the Policy states that 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 In this case, the worker sustained a soft tissue injury in 2001, was not disabled in fact, did not even miss time off work and did not see his treating physician for ten years. 28. Ms. Fry indicated the Commission s medical consultant reviewed the worker s file and in a Claim Note dated March 10, 2013, stated, in part: I have reviewed the pertinent medical on file. My understanding is that this worker had a compensable neck injury in The mechanism of injury was a fall secondary to standing on a milk crate. The medical on file supports a diagnosis of facet joint sprain with myofascial strain. There is only one chiropractic report on file dated Oct. 12/01. The claim summary does not document any lost time. Thus, the evidence supports a compensable soft tissue/muscular injury involving the neck in This type of injury would be expected to resolve in a matter of days to weeks. The recent medical information on file supports that the worker presented to a physician with neck pain in 2010 (one visit). An x-ray of the cervical spine in 2014 revealed advanced degenerative changes. Based on the information available I am unable to relate the current neck symptoms to a remote soft tissue injury that occurred 14 years ago. This type of injury would be expected to heal and the evidence on file supports that there were no ongoing problems. There is no evidence of medical continuity between 2001 and In 2014 the worker was diagnosed with a different condition (i.e. advanced degenerative changes of the cervical spine. These changes are likely age related and not the sequellae of a remote soft tissue injury 29. In summary, Ms. Fry contended the worker s recurrent neck pain and the headaches he is currently experiencing are not related to the original soft tissue injury in 2001, an injury that was not reported to the Commission and did not result in lost time from work. The worker s visit to his treating physician, almost ten years later, for neck pain is too remote to have been related to the 2001 injury. Ms. Fry noted the Commission has the jurisdiction under Section 19(1) of the Act to determine the extent and circumstances of an injury and whether it was work related. Ms. Fry stated that Policy EN-03: Recurrences provides direction to the 4

5 Commission with respect to recurrences of work related injuries. Ms. Fry contended the worker s circumstances do not fit the parameters of either the Act or Policy in this case. 30. Ms. Fry maintained the decision dated May 13, 2015 by the internal review specialist was not in error, on the balance of probabilities, in accordance with Section 60(1) of the Act, and she requested this decision be upheld. Analysis 31. The worker in this case sustained a soft tissue injury affecting his neck and shoulders on October 12, 2001 when he fell backwards off a milk crate during the performance of his duties. The worker did not miss any time off work, but was seen on October 17, 2001 by a chiropractor, who provided a diagnosis of a cervical sprain and myofascial strain, with issues related to the C4-C6 cervical spine levels. No claim was filed with the Commission at the time, although there is a Form 7, Employer s Report of Injury, dated October 19, 2001 in the worker s file which indicated the injury was to the worker s back, leg and hip. 32. While the worker stated he next visited his treating physician in 2004, the earliest supporting indication of a medical visit was November 17, 2010, a little more than nine years following the initial injury, during which the worker complained of frontal headaches and pain in the cervical spine going into the right shoulder There was no further supporting medical information on file from the worker s treating physician until February 19, 2015, indicating, subjectively, moderate pain and, objectively, decreased range of motion and a diagnosis of a disc injury. While the worker stated he had visited his treating physician on August 22, 2014 for treatment for his neck problems, his physician denied such a visit occurred, stating that he first saw the worker on February 19, 2015 for this problem. 33. The treating physician, however, did send the worker for an x-ray of his cervical spine on May 13, The x-ray report of the same date stated, in part: There is no fracture or dislocation. There are advanced degenerative changes of the right facet joint at the C5 6 level. There are mild degenerative changes at the C3 4 level as manifested by mild narrowing of the disc space with the formation of small anterior osteophytes. The remainder of the disc spaces are maintained and the cervical spine is normally aligned. The odontoid peg is intact 34. On January 30, 2015 the worker filed a Form 6, Worker s Report of Injury, essentially claiming a recurrence of symptoms arising out of his October 12, 2001 injury. On March 19, 2015 the Commission advised his claim for recurrence had been denied, primarily on the basis of a report dated March 10, 2015, as contained in the file evidence in a Claim Note, from the Commission s medical consultant, who stated, in part: I have reviewed the pertinent medical on file. My understanding is that this worker had a compensable neck injury in The mechanism of injury was a fall secondary to standing on a milk crate. The medical on file 5

6 supports a diagnosis of facet joint sprain with myofascial strain. There is only one chiropractic report on file dated Oct. 12/01. The claim summary does not document any lost time. Thus, the evidence supports a compensable soft tissue/muscular injury involving the neck in This type of injury would be expected to resolve in a matter of days to weeks. The recent medical information on file supports that the worker presented to a physician with neck pain in 2010 (one visit). An x-ray of the cervical spine in 2014 revealed advanced degenerative changes. Based on the information available I am unable to relate the current neck symptoms to a remote soft tissue injury that occurred 14 years ago. This type of injury would be expected to heal and the evidence on file supports that there were no ongoing problems. There is no evidence of medical continuity between 2001 and In 2014 the worker was diagnosed with a different condition (i.e. advanced degenerative changes of the cervical spine. These changes are likely age related and not the sequellae of a remote soft tissue injury 35. I find that the worker s claim was denied on the basis that: The October 12, 2001 injury was a soft tissue injury that should have resolved in a relatively short time; No lost time from work occurred from this injury; No claim had been filed by the worker to the Commission; There was no trauma involved in the injury; An x-ray of the worker s cervical spine in May 2014 showed advanced degenerative changes of the right facet joint at the C5 6 level, as well as changes at the C3-4 level of the cervical spine; The worker did not seek any further medical assistance or see his treating physician for any related issue until November 17, 2010, complaining of headaches and cervical pain going into the right shoulder; and During that visit the worker did not relate to his treating physician any of his symptoms to the October 2001 injury. 36. I note that Section 19(1) of the Act confers on the Commission the exclusive jurisdiction to determine matters relative to whether an injury is work-related, the severity of the injury and matters related to compensation. 37. I note also that Policy EN-03: Recurrences states, in part: 6

7 A recurrence is a return of disabling symptoms directly related to an original work injury which results in loss of earnings capacity more than 12 months after the worker was last considered capable of earning. Recurrence symptoms must result from and be medically compatible with the original injury. The nature and significance of the original injury and the length of time since the original injury are important factors to be weighed. An onset of symptoms will not be considered a recurrence where other injuries, accidents or processes have intervened to cause the current condition. Decisions to accept or deny recurrence claims will consider medical and all other relevant evidence, and be based on the balance of probabilities. 38. The Policy goes on to specify a number of factors to be considered in validating a recurrence, such as medical compatibility with the original work injury, the nature and significance of the original injury, evidence of continuing medical care since the previous injury, among other factors. The Policy states it is less likely that a minor soft tissue injury will be considered medically compatible with disabling symptoms which develop more than 12 months after the worker was capable of returning to work Further, a compensable recurrence may likely not be considered where a new disease or other process has intervened as a significant cause of the current condition. 39. In the case of this worker, as already discussed, the original injury was of the minor soft tissue nature, there was no lost time from work, there is no evidence of continuing medical care and, during the intervening years, the worker was diagnosed with degenerative disc disease in the cervical spine. Therefore, on the basis of the Policy, it seems unlikely, in my view, that the worker s cervical spine problems in 2010, and confirmed in 2014, are related to the original soft tissue injury. 40. The internal review specialist in her May 13, 2015 decision stated, in part: I find that the initial injury of October 2001 resulted in a facet joint sprain with myofascial strain to your neck. The Commission s Medical Consultant indicated that the evidence supported a compensable soft tissue/muscular injury with no lost time. This type of injury would be expected to resolve in a matter of days to weeks. There is a chiropractic report on file dated October 2001 following the initial injury. There are no other medical reports on file until February Your treating physician has indicated that you did visit him in November 2010 due to the pain in the cervical spine. In 2014, you were diagnosed with a different condition, advanced degenerative changes of the cervical spine which were confirmed on x-ray. The Medical Consultant has reviewed your file and determined that the changes are more likely age related and not related to a soft tissue injury occurring in

8 From my review of the file, taking into account the medical information, your submission, as well as the Medical Consultant s opinion, I find that I would concur with the Extended Service Adjudicator that the evidence on file does not support ongoing neck symptoms and therefore I am unable to relate your current neck symptoms with your original work related injury. Therefore I would concur with the decision to deny your request for recurrence 41. My role in this matter is to review the final decision of the Commission for compliance with the Act and applicable policies. As long as that decision is in compliance with the Act and policies, the decision will be confirmed. Conversely, if I find that the decision is not in compliance with the Act and policies, the decision will be considered to be in error. 42. From my review of all of the evidence on file and considering the evidence presented at the hearing, I find I am in agreement with the Commission s medical consultant and the internal review specialist that, on the balance of probabilities, in accordance with Section 60(1) of the Act, for the reasons already noted, the worker s current symptoms are more likely than not related to his degenerative cervical spine condition than the minor 2001 injury. 43. I accept the worker s earnest statements that he suffers from headaches and neck pain and that he is being absolutely truthful with respect those symptoms. However, the preponderance of evidence points to his degenerative issues as the probable cause of these symptoms and not, as noted already, related to a recurrence of issues related to his injury in I find, therefore, that the internal review specialist acted in accordance with the Act and Policy, on the balance of probabilities, and did not err in denying the worker s request for recurrence of injury. Decision 45. It is my finding that the Commission acted in accordance with the Act and Policy and did not err in its decision of May 13, 2015 to deny the worker s claim for a recurrence of his 2001 injury. With respect, the review is denied. Review Denied Gordon Murphy Review Commissioner September 23, 2015 Date 8

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