The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 26, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on February 26, 2001 and June 18, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In October 1999 the claimant submitted a claim for a repetitive strain injury to her neck and shoulders which she related to her employment activities as a secretary II - receptionist. The claimant indicated that she had been experiencing an increasing number of headaches which came on towards the latter part of her work day and she had been seeking medical help and chiropractic care since the summer of 1998.

The employer's report of injury dated October 20, 1999, described the accident as follows: "repetitive motion - reaching from right to phone, to left to reach appointment books, reaching from location at computer to answer phones. Ongoing since summer of 98."

A doctor's first report dated October 27, 1999 noted that the claimant was first treated on August 4, 1998 for "increased musculoskeletal strain over the last 2 years of her trapezius - worse using the telephone." The diagnosis rendered was myofascial neck pain and tension headaches. The physician later acknowledged that the claimant was previously treated for headaches commencing August 21, 1997.

On November 25, 1999 a Workers Compensation Board (WCB) adjudicator contacted the claimant and obtained additional information concerning the nature of her job activities and the problems that she had experienced in the past surrounding her injury/difficulties. An opinion was then obtained from a WCB medical advisor concerning a diagnosis.

In a letter dated January 7, 2000, the claimant was informed that her case had been reviewed by a WCB medical advisor. He provided the opinion that there was no clear diagnosis of the claimant's condition based on objective medical evidence. Her claim for compensation was therefore denied as it could not be established that her current difficulties were the result of an accident as defined in the Workers Compensation Act (the Act). On March 6, 2000, a worker advisor appealed this decision to Review Office.

In May 2000 sworn statements were obtained from the claimant and her manager along with photographs of the claimant's work area. Additional medical information was requested and received from the attending physician dated April 9, 2000 together with comments from a WCB medical advisor on June 10, 2000.

On June 16, 2000, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the claimant had been suffering from headaches, which were described by the attending physician as sinus, cluster and tension headaches. The claimant had also been diagnosed with myofascial pain of the neck area. Review Office did not dispute that the claimant's headaches became somewhat worse when she is at work, but the headaches are also present when she is away from work or on holidays. It was the opinion of Review Office that the claimant had not sustained a personal injury by an accident required by the WCB Act. There was no causal link between the claimant's work environment and the type of headaches diagnosed by her physician.

On February 26, 2001, an oral hearing was convened at the request of the worker advisor who appealed Review Office's decision of June 16, 2000. Prior to the hearing, the worker advisor provided information from a physiotherapist dated January 19, 2001 and from the attending physician dated February 12, 2001.

Following the hearing and discussion of the case, the Panel requested that further medical information be obtained prior to making a final decision with respect to the issue under appeal. Specifically, information was obtained from a physical medicine and rehabilitation specialist, who had seen the claimant at an out-patient clinic on March 2, 2000. The specialist's report dated June 1, 2001, was forwarded to the interested parties for comment. On June 18, 2001, the Panel met to render its final decision.

Reasons

The evidence confirms that the claimant’s variety of headache symptoms and diagnoses predate the alleged compensable injury. In a letter dated February 12^th, 2001, the treating physician advised the claimant’s worker advisor as follows: “Her vascular headaches do not predate her tension headaches. My chart on her goes back to 1989 where she was complaining of headaches which Dr. [name] labeled them as tension headaches.”

After carefully reviewing the mechanics of the claimant’s job duties, we find that such would not, on a balance of probabilities, lead to the development of neck and shoulder difficulties. As a Panel we were not satisfied that the claimant had sustained an accident within the meaning of Section 1(1) of the Act. Accordingly, we do not find the claim to be acceptable and therefore the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 19th day of July, 2001