The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 29, 2000, at the request of the claimant. The Panel discussed this appeal on June 29, 2000.

Issue

Whether or not the claimant's medical difficulties are related to the compensable accident of July 21, 1987.

Decision

That the claimant's medical difficulties are not related to the compensable accident of July 21, 1987.

Background

An employer's report of injury dated July 24, 1987, indicated that the claimant was guiding a 15 foot railway tie on to a truck and that the tie hit the truck, jarring loose the tie tongs. The tie then bounced off the truck onto the claimant's shoulder & back causing severe bruising and scratches. The date of accident was July 21, 1987. A doctor's first report dated September 9, 1987, noted that the claimant had a right shoulder blade abrasion and that a dressing was applied. The claim was accepted as a no time loss claim and medical aid expenses were issued.

In 1991, the claimant contacted the Workers Compensation Board (WCB) indicating that he was experiencing ongoing difficulties with his shoulder and back which he related to the July 1987 incident. On May 23, 1991, the claimant provided a sworn statement to the WCB outlining his activities following the July 1987 accident as well as information related to his subsequent difficulties with his clavicle and spinal column.

Information obtained from the employer dated September 25, 1991, advised that the claimant had been in a severe car accident prior to his work accident in July 1987 and that this accident caused a lot of problems with his back. The employer advised that the claimant had complained about his back being sore because of the 1987 injury. The claimant was given light duty jobs for approximately two months after which he could perform his regular duties. The claimant also wanted to work instead of going on compensation.

Medical information consisted of a July 21, 1987, hospital report which noted that the claimant had a railway tie fall across his upper shoulder but was not knocked out. The claimant was treated for an abrasion across his right shoulder blade and a dressing was applied. On July 27, 1987, the claimant's right shoulder was again examined at the hospital and a diagnosis was recorded as a whiplash injury to the neck.

On May 28, 1991, a physician reported that the claimant presented with complaints of pain in his right shoulder, post upper and lower back for four years. He noted that while working with the accident employer in 1987, a railway tie fell on his right shoulder. The report stated that the claimant did not claim for WCB benefits at the time because he had been incarcerated for several months. The physician commented that it was possible the claimant's disc degeneration at the C5-C6 level could be related to the accident of 1987.

In a letter dated July 30, 1991, a physician acknowledged that the claimant had been seen on July 21, 1987 after a railway tie fell on his back. There was a large abrasion on his right shoulder. No serious injuries were detected. On August 4, 1987, the claimant was seen by a different physician and a chest x-ray at the time was considered normal. The claimant was again seen in 1988 complaining of back pain. X-rays of the thoracolumbar spine were essentially negative. In March 1991, the claimant was seen once more stating that he had severe pain in his right scapula area. Nothing was found to account for this pain.

On October 11, 1991, primary adjudication determined there was insufficient evidence to establish that the claimant's ongoing difficulties were related to the accident at work in July 1987. This decision was appealed by the claimant on January 7, 1994. The claimant described the accident, saying it occurred on August 15, 1987. The claimant stated that a 16 foot hardwood switch tie fell on his head, back and shoulder, breaking his right shoulder "clavicle" and compressing his spine. In 1993 he was restricted from physical labour due to compression of the spinal column and torticollis.

Prior to considering the appeal, Review Office requested and obtained a sworn statement from the claimant dated February 8, 1994. The statement contained details of what the claimant was claiming, what doctors he had seen, etc. On May 13, 1994, information was received from the accident employer regarding the claimant's employment history with the company.

Additional medical information was also requested by Review Office. These reports included:

• Letter dated February 28, 1994, from a family practice clinic whom the claimant attended for treatment between May 1993 and February, 1994.
• Letter dated December 29, 1993 from an orthopaedic specialist.
• Hand written notes from the accident employer's company physician from July 1991 to October 1992.

Subsequent file records show that no further activity took place with regard to the claimant's appeal until the claimant called the WCB's offices on October 28, 1997. The claimant stated that the employer "wants him to sign off. Retire? He is fit for sedentary duties but totally disabled from doing reg duties." The file was then relisted with Review Office.

In February 1998, Review Office obtained correspondence that had been submitted by the claimant. Review Office also wrote to hospitals in Winnipeg and Brandon for additional medical information but no records of the claimant's receiving treatment between 1985 and 1990 had been provided. A solicitor assisting the claimant also forwarded to Review Office correspondence from Canada Pension Plan as well as medical reports from doctors who had seen the claimant over the years.

On September 18, 1998, Review Office determined that it had not been established that the claimant's difficulties were related to the injuries he had sustained on July 21, 1987 and that the claimant was not entitled to wage loss benefits or services beyond 1994 as claimed. Review Office's reasoning for these decisions were as follows:

• there was some question about the date of accident. Review Office confirmed that the accident date was July 21, 1987 as opposed to August 15, 1987. This confirmation was based on the employer's report of accident received July 28, 1987, the claimant's report of accident dated 1991 as well as initial hospital records that were obtained from 1987.
• there was no evidence to substantiate the claimant's claim that the injury to his neck had caused him ongoing problems since the accident of July 21, 1987. The claimant had received no medical treatment for an injury to his neck after treatment was initially provided on July 21 and July 27, 1987. At that time the claimant indicated that the railway tie had struck him on the shoulder, (not head), he had not been unconscious and that a dressing had been applied to the contusion on the shoulder. In 1988 the claimant was complaining of back pain unrelated to the injury of the year before. X-rays were considered normal. The next medical treatment given was after 1991.
• additional medical information gathered after 1991 showed that the claimant had a problem with his neck, unfortunately, the medical information did not indicate any relationship to the 1987 injuries. The employer was contacted in this regard and there had been no record of ongoing medical treatment concerning a neck injury, nor complaints of such problems to supervisory staff or otherwise. Investigation did indicate that the claimant had medical difficulty prior to the compensable injury of July 21, 1987 possibly related to a motor vehicle accident.
• Review Office recognized that the claimant has current problems with his neck but it had not been shown that these difficulties were related to the July 21, 1987 injury.

On March 15, 2000, a solicitor, acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was arranged.

Reasons

There is very little in the way of evidence to support the claimant's contention that his current medical difficulties involving his neck are causally related to his compensable accident of July 21st, 1987. We attached considerable weight to the following body of evidence:

• On the worker's report of injury form, he states that the railroad tie fell on his head compressing his spinal column and then onto his back. The employer's report of injury form describes the tie hitting the claimant's shoulder and back
• causing severe bruising and scratches. The attending physician's records show that the claimant was seen on the day of the accident "after a railway tie fell on his back. There was a large abraision (sic) of his right shoulder. No serious injuries were detected."
• The employer's report of injury form was prepared on July 24th, 1987 and filed with the WCB on July 28th, 1987 whereas the claimant's report of injury form was not filed with the WCB until May 10th, 1991 almost 4 years after the incident.
• The claimant has been diagnosed with advanced cervical spine disc degeneration.
• The claimant suffered a significant head injury as a child, which required surgical insertion of steel plate.
• No active medical treatment by treating physician between July 1987 and March 1991 when claimant presented with severe pain in his right scapula area. Nothing was found to account for his pain.
• A specialist consulted in May of 1991 reports the history of injury as "While was working for [name of employer] the railway tie fell on (R) shoulder."
• Doctor's first report of injury form dated September 9th, 1987 describes worker's history of injury as "Railway tie fell on back - abrasion Rt shoulder blade."
• The hospital's emergency room report form dated July 21st, 1987 records the history of injury as follows: "Patient had railway tie fall across upper shoulder. Patient was not knocked out. Patient has abrasion across right shoulder blade. Patient complaining of sore right shoulder. Examined. Spectrocin and telfa and dry dressing applied to abrasion area."
• Following the compensable injury the claimant was on light duty work for two months and then returned to full employment duties.
• No definitive statement from any physician that the claimant's neck problems are related to his July 21st, 1987 injury.
• There has been no medical evidence submitted since 1994.

We find based on a preponderance of evidence that the claimant's neck difficulties are not, on a balance of probabilities, related to his compensable accident of July 21st, 1987. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of July, 2000