The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 12, 2001, at the request of the employer's representative. The Panel discussed this appeal on February 12, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On March 13, 2000, the claimant submitted an application for compensation benefits claiming that he sustained injuries to the right side of his neck, shoulder and face from a work related accident on March 9, 2000. The claimant described the accident causing injury as follows:

"As I was driving truck #225-2540 along [name] Ave. I hit a bad bump in the road. I felt a bad pain in my R/neck area, I felt a twitching in the right side of my face. When I woke up Fri. morn, the R/side of my face was paralised, (sic) severe pain in my neck and up into my head, I went to the hospital, then the next day to my doctor."

Subsequent medical information consisted of a March 10, 2000 hospital emergency report that diagnosed the claimant's condition as Bell's Palsy. The physician noted that there was no associated trauma and that the claimant experienced right hand motor difficulties for about two weeks.

A Chiropractor's First Report was received dated April 7, 2000 (date of visit was March 11, 2000). The chiropractor noted the worker's history of driving a truck and hitting a bump. The diagnosis was acute to moderate cervicothoracic spinal strain and right shoulder strain. The chiropractor noted that the claimant had many prior work related injuries to these areas.

On April 10, 2000, a Workers Compensation Board (WCB) medical advisor reviewed the case. She noted that when the claimant was seen at the hospital on March 10, 2000 he provided a history of no trauma to the emergency physician and there was no mention of headache or pain. The claimant was diagnosed with Bell's palsy. The medical advisor indicated that the clinical entity was presumably due to an inflammatory reaction of an undetermined type of the 7th cranial nerve near the stylomastoid foramen of the skull. She noted that the onset was acute and that maximum paralysis was usually attained by 48 hours and that pain beyond the ear may precede the paralysis for 1-2 days. The medical advisor commented that from the emergency report it would not appear that a workplace incident occurred. She stated that driving over a bad bump would not lead to a Bell's Palsy on a balance of probabilities.

On April 12, 2000, a WCB adjudicator gathered additional information from the claimant surrounding the events that occurred on March 9th and March 10th, 2000.

In a decision of June 7, 2000, the WCB determined that the claim for compensation was acceptable based on the following weight of evidence:

• The claimant's neck and right shoulder was fine prior to the start of his shift on March 9, 2000;
• When seen for preventative and general maintenance on March 6, 2000, the attending chiropractor confirmed that clinical findings at this time do not note any symptoms;
• A co-worker who was driving with the claimant on March 9, 2000, attested to the fact that the road being driven on was very bumpy and the truck's suspension was quite rough;
• The claimant experienced increasing symptoms throughout the afternoon and evening of March 9, 2000 and that he reported his injury promptly to the employer on March 10, 2000;
• A consistent accident history was provided to the attending chiropractor and the medical findings were consistent with the accident mechanics.

On August 25, 2000, the employer's representative contended that the totality of evidence did not establish that the claimant sustained an accident while in the course of his employment. Specifically, the employer was of the view that:

• There was evidence that the claimant was experiencing numbness in his right hand and neck discomfort prior to the accident of March 9, 2000.
• The claimant denied that there was any trauma associated with his physical problems when seeking initial medical treatment the day following the alleged accident.
• There was inconsistency in the accident history provided by the claimant in that he initially indicated that he had hit a bad bump and then later advised the adjudicator that he did not recall hitting a bad bump.

In a decision of September 22, 2000, Review Office confirmed that the claim for compensation was acceptable. With respect to the employer's query as to why the claimant provided no history of accident to the hospital emergency department on March 10, 2000, Review Office responded as follows:

"It is the worker's contention that no mention was made of the jarring in the truck the day prior, as he was seen at the hospital for the onset of Bell's Palsy, and not with respect to his neck complaints. Clearly, the chiropractor's report based upon treatment rendered on March 11, 2000 indicates the worker was injured when his truck hit a bump on March 9, 2000."

With respect to the employer's query as to whether the claimant's neck strain was caused by driving over one specific bump on the road rather than just a bumpy ride, Review Office did not see this distinction as being significant. Review Office noted that the claimant's co-worker had attested to the fact that the truck in question was very rough to drive in, and that they were driving on a very bumpy road on March 9, 2000.

Review Office noted that the claimant experienced numbness in his right hand for approximately two weeks prior to March 9, 2000. Review Office stated it was unable to associate these symptoms with a muscular injury to the neck and shoulder region. The claimant's long history of problems in his neck, back and right shoulder was acknowledged and evidenced by the fact that he had been accommodated in modified duties for an extended period of time prior to March 9, 2000.

On October 4, 2000, the employer's representative appealed Review Office's decision and an oral hearing was held.

Reasons

This appeal was brought by the employer, challenging the acceptability of the claim.

The worker involved has worked for this employer for over twenty years. For roughly one-half of each year, his work involves relatively heavy, manual labour. It was during this period, that he sustained an injury to his neck, back and right shoulder on March 9, 2000, while driving a truck on a rough road.

In 1989, this worker sustained a serious injury to his right shoulder, in the workplace, which has left him with permanent restrictions on its use. This injury has resulted in three distinct periods of wage loss. In addition, he has suffered new injuries to the same shoulder on four occasions since 1989. The incident under appeal is the fifth new injury.

The employer, in its appeal, is arguing that the worker did not suffer "personal injury by accident arising out of and in the course of the employment" as required by section 4(1) of The Workers Compensation Act.

For the appellant to succeed, the panel must be satisfied, on a balance of probabilities, that the injury the worker suffered did not occur in the workplace.

In its submission, the employer based its argument on a number of points:

• The worker had been receiving chiropractic treatment for problems with his shoulder prior to the March 9, 2000 accident.

  The panel finds that, given the claimant's long history of work-related problems with his shoulder, this is hardly determinative of the fact that the March 9 injury was not a new one.

• There was inconsistency in the claimant's version of the events in that, on his WCB report, he stated that he hit a bump, while at other times, he described it as driving on a rough road.

  We are in agreement with the Review Office that this distinction is insignificant. We accepted the worker's contention - supported by a co-worker - that the truck in question is rough to drive in and that they were driving on rough roads that day.

• The worker did not report the incident to the employer on the date of the accident.

  The worker did report the incident on the next day and did fill out the necessary WCB forms on March 13, 2000. These are, certainly, acceptable time frames.

• When the claimant went to the hospital emergency room, he stated that he had suffered no trauma.

  We find this argument to be somewhat disingenuous. The claimant had gone to the hospital due to the paralysis on the left side of his face, which was diagnosed as Bell's Palsy. He denied any direct trauma - such as a car or sports accident or a fall - which might have caused this ailment.

  This claim is not for the Bell's Palsy. We fully accept the claimant's position that he was so concerned about what he feared might be stroke that he did not place much emphasis on his shoulder and back problem. We also accept that he told the ER doctor about this problem and was told to continue with the treatment prescribed by his own doctor, while the ER doctor focussed most of his attention on the Bell's Palsy.

• It was not until April 7, 2000 that the attending chiropractor submitted the 'First Report".

  This is so, but that report covered treatment administered on March 11 and was for the injuries in this claim, namely back and right shoulder sprain/strain.

We conclude that the preponderance of evidence supports the decision of the Review Office that the worker's claim for a neck and right shoulder strain injury occurring on March 9, 2000 is a just one. We can find no compelling reason to overturn that decision.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant, - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of February, 2001