Decision #98/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 29, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day and again on June 29, 2004.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In October 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report right shoulder difficulties which she attributed to the repetitive nature of her work duties as a licensed practical nurse in late August 2001.The claimant told the call centre that she felt a burning sensation in the back of her scapular region which increased with activity. During her days off from work, the pain would get better and then would get bad when she went back. The claimant said she then started to experience pain on top of the burning sensation in the spring. She received chiropractic and physiotherapy treatments which did not help. She was now waiting to see a specialist in Winnipeg.
The Employer's Accident Report indicated that the claimant did not fill out an Employee Injury Report form as there was no specific occurrence which she could identify as the injury. While at work, the claimant's right shoulder would start to burn which then increased as the shift went on. The claimant would have 2-3 twelve hour shifts at a time and by the 2nd and 3rd day she would have increasing pain and burning.
A Chiropractor's First Report for an examination in June 2002 noted that the claimant had been symptomatic for one year. The diagnosis rendered was referred pain from biomechanical neck, upper thoracic and shoulder dysfunction.
On October 18, 2002, primary adjudication contacted the claimant to gather additional information concerning her claim. The claimant stated that she noticed a burning sensation in her right shoulder while at work on August 28 or August 29, 2001. There was no specific incident to account for the onset of her symptoms and no change to her job duties. The claimant recalled that she told the nursing supervisor on August 30, 2001 that she was having right shoulder discomfort and was going to see a doctor. She did not complete an incident report and could not recall the nursing supervisor's name. The claimant said that she had mentioned ongoing complaints to several co-workers regarding her shoulder discomfort. The claimant could not explain why her problems were only located in her right shoulder and not the left.
The treating physician provided the WCB with a narrative report dated November 18, 2002, which outlined the following information:
- August 30, 2001 - the claimant complained of a burning sensation in her right shoulder and trapezius. Diagnosis was neuropathic pain.
- August 12, 2002 - the claimant complained of shoulder pain for 14 months. The diagnosis was myofascial pain.
- September 16, 2002 - the claimant was in a great deal of pain and medications were prescribed.
- October 7, 2002 - the claimant described pain in the right deltoid muscle and pain below the scapula and up in her neck. The claimant had numbness in the third, fourth and fifth fingers and had an appointment at the Pan Am Clinic on November 19, 2002.
- The physician could not recall when the claimant first mentioned that her problem was work related but he suspected that it was on her visit of August 12, 2001 (sic).
In a letter dated December 23, 2002, the claimant was informed by primary adjudication that her claim had been denied as it was unable to establish a relationship between the development of her right shoulder symptoms and an accident arising out of and in the course of her employment.
On January 8, 2003, the claimant wrote a letter to primary adjudication pointing out several inaccuracies with respect to the information that was provided to the WCB by the employer. In addition, a report was received from a physiotherapist dated February 18, 2003 which indicated that the claimant's right shoulder and scapulae irritation was believed to be related to a repetitive strain at work.
On February 21, 2003, primary adjudication advised the claimant that the new information did not warrant a change to its decision of December 23, 2002. On February 18, 2003, the claimant appealed the decision to Review Office.
On May 9, 2003, Review Office considered the claimant's appeal along with a submission provided by the employer's advocate dated April 3, 2003.
Review Office agreed with primary adjudication that the claim was not acceptable. Review Office was of the opinion that the diagnosis for the claimant's increasing complaints remained unclear and it could not find reasonable explanation for the sudden onset of her symptoms in late August 2001. It noted that the claimant had performed the same type of work for 10 years without any previous problems and there was no incident at work which could have triggered the onset of her symptoms. Based upon the entirety of the evidence, Review Office was unable to associate the worker's original and ongoing symptomatology to her occupation as a licensed practical nurse. In January 2004, a worker advisor, acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was arranged.
Following the oral hearing, the Appeal Panel discussed the case and decided to obtain additional medical information from the claimant's treating physicians, prior to rendering its final decision. On June 1, 2004, all interested parties were provided with copies of the information that was obtained by the Panel and were asked to provide comment. On June 29, 2004, the Panel met further to render its final decision.
Reasons
Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
The worker’s report of injury form detailed her injury as having resulted from the repetitive nature of her job duties, which involved a lot of lifting, pulling, pushing and stretching motions. Her symptoms initially originated in the scapular area with an increased burning sensation. The date of injury was recorded as August 30, 2001. The attending physician diagnosed the claimant’s condition as shingles. We note that the claimant did not file for compensation until October 17, 2002. There is no evidence to corroborate the claimant’s assertion that she had reported the alleged injury to the employer in August of 2001.
The claimant consulted both a chiropractor and a medical doctor on October 22, 2002. The worker’s description of accident or injury was as follows: “Repetitive use – Not sure what I did to cause injury.” By way of contrast, the claimant described the accident or injury at the hearing as occurring thusly:
“Around this time I do believe that we had a very obese patient on the ward and I was working on and it took seven to eight staff members to turn and position this patient. This turning and positioning was done numerous times in a shift, and I do know for a fact that another staff member did get a back injury and was off work from working with this patient.”
Nowhere on the file is there any mention of dealing with an obese patient and having to turn and to rotate him several times during a shift.
The etiology of the claimant’s condition is very unclear. We closely assessed her job duties, which were very varied and we could not, on a balance of probabilities, relate the claimant’s current medical condition to these employment activities.
After having considered all of the evidence, we find that the worker did not sustain an accident which arose out of and in the course of her employment resulting injury. Therefore, the claim is not acceptable and the worker’s appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of July, 2004