The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 1, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 18, 2002, the worker contacted the call centre at the Workers Compensation Board (WCB) to report injuries to her "right upper arm and left arm" which occurred on October 12, 2002 during the course of her employment as a licensed practical nurse. The worker noted that she reported the accident to her employer on November 6, 2002. The worker described the accident as follows:

"I was assisting lifting a resident off the floor, causing me to injure my right upper arm. I am now having pain and numbness in my left arm too. I went for a cat scan. Prior to Oct. 12, I was having numbness in my left index finger, left middle finger and left thumb."

On December 2, 2002, a WCB adjudicator documented a telephone conversation that she had with the worker concerning the October 12, 2002 incident along with details regarding the onset of her arm symptoms, the medical treatment she received and the reporting of her accident to her employer.

Medical information on file consisted of CT scan report of the cervical spine dated October 24, 2002. The CT scan identified spinal stenosis and disc bulging.

In a decision dated January 10, 2003, the worker was advised that the WCB was unable to accept responsibility for her right arm difficulties on the basis that she failed to report an injury to her employer and because of the delay in seeking medical treatment.

On January 16, 2003, a second WCB adjudicator (under another claim) contacted the worker to gather additional information with respect to her left arm difficulties which began to develop around the middle of February 2002. In a decision dated February 8, 2003, the worker was advised of the WCB's position that no responsibility could be accepted for her left arm difficulties based on the following rationale:

• there was no specific accident or incident at work to account for the worker's difficulties nor was there any changes to her job duties or work load;
  
  
• the worker continued working and she did not report her condition to her employer or to any co-workers until November of 2002.

On March 12, 2003, a worker advisor appealed the WCB's decision to deny responsibility for the worker's right arm difficulties. The worker advisor argued that the October 12, 2002 claim met the requirements of Sections 17(1), 1(1) and 4(1) of The Workers Compensation Act (the Act).

In a decision dated May 16, 2003, Review Office determined that the claim was not acceptable. Review Office felt there was insufficient evidence to confirm that the worker sustained an injury at work on October 12, 2002. In July 2003, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The issue before us was whether the worker's claim is acceptable. For the appeal to be successful, we must find that the worker suffered an injury while performing her job duties on October 12, 2002. We were not able to reach this conclusion.

Applicable Law

To be acceptable a claim must meet the requirements of the Act. The first requirement is for an accident as defined in subsection 1(1) of the Act. This definition provides:

"accident" means a chance event occasioned by a physical or natural cause; and includes

1. a wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease,

and as a result of which a worker is injured.

The next requirement is that the accident be connected to the workplace. This is set out in subsection 4(1) of the Act. This subsection provides:

"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."

Both statutory provisions require that the worker be injured as a result of the accident. Generally, without an injury there is no entitlement to compensation except for the limited exceptions under subsections 27(3) and (4) which do not apply to this case.

The Board of Directors of the WCB has made policies respecting the interpretation and application of the Act.

Evidence and Argument at the Hearing

The worker was represented at the hearing by a worker advisor who made a submission on the worker's behalf. She submitted that while assisting a co-worker to lift a patient on October 12, 2002, the worker experienced increased left arm symptoms and an onset of right arm symptoms. She submitted that this action met the requirements of s. 1(1) of the Act. She also submitted that this action met the requirements of WCB Board Policy 44.05, Arising Out of and In the Course of Employment, and the requirements of s. 4(1) of the Act.

The worker provided information regarding her job duties as a nurse which included assisting patients with activities of daily living. She described the incident on October 12, 2002. She also provided information on her symptoms and medical treatments both before and after October 12, 2002.

The employer was represented by an advocate who made a submission on behalf of the employer. The advocate noted that when the worker's symptoms first commenced in February 2002 there was no mention of a workplace accident. He also noted that the symptoms reported by the worker do not match the accident description. The employer agreed with the Review Office decision.

Decision

Having considered all the evidence we are unable to find a relationship between the worker's symptoms and diagnosed condition and her workplace activities on October 12, 2002. Accordingly the claim is not acceptable. In support of our decision we place significant weight on the following evidence:

• Prior to October 12, 2002, the worker was being actively investigated for neurological problems. In mid-February 2002, approximately 8 months before the workplace incident, the worker noticed periodic numbness in her left arm and hand. In a letter to the WCB the worker reported that in July 2002 numbness was present in her thumb and fingers of the left hand. She also reported discomfort above the elbow of the left arm and numbness in both arms when raised in a vertical position or above her head.
  
  
• On July 23, 2002 she advised her physician of the numbness in her left arm. She also advised that at times both arms can go numb when lifting and when talking on the telephone. The physician arranged for nerve conduction studies (NCS). On August 28, 2002 the worker saw a neurologist and underwent NCS which were reported as normal.
  
  
• With respect to the lifting incident of October 12, 2002, the worker reports using her right arm but following the incident she began experiencing symptoms in both arms. At the hearing she described the symptoms following the incident in these words: "deep sore burning sensation above the elbow of my right arm", "throbbing sharp burning pain above the left elbow", "my arms were both throbbing with a sharp burning pain and my arms felt weak", "intensity of pain felt a little sharper and my left thumb, index and middle finger felt numb throughout my fingers", "my left hand would suddenly feel numb and stiff and tight and the above listed symptoms intensified over the course of the nine months". The symptoms appear to be primarily left sided.
  
  
• A CT scan was then arranged and conducted on October 24, 2002. The CT scan report notes:
  
  "Impression: Central spinal stenosis at C4,5 and C5,6 caused by a disc protrusion and osteophytes at C4,5 and osteophytes and disc bulging at C5,6. Neural foraminal narrowing on the right at C4,5 and on the left at C5,6. There appears to be cord flattening at these levels. MRI would be better to determine the degree of cord compression."

• The worker did not advise her co-worker of the pain she suffered after the lifting incident and did not report this to her employer until November 6, 2002.
  
  
• At the hearing the worker was asked when she first sought medical attention for the symptoms following the October 12, 2002 incident. She advised that she contacted her family physician's office and was told she would have to wait three weeks for an appointment. She was notified that she had an appointment for a CT scan on October 24, 2002. She stated "I decided to wait for the CT scan results, in hopes that I would have a diagnosis." This suggests that the worker considered the symptoms subsequent to the lifting incident to be related to her ongoing neurological condition.
  
  
• In January 2003, the worker was seen by a neurosurgeon and an MRI scan was arranged. The MRI was conducted on April 13, 2003 and found:

  "Impression: Severe central stenosis is produced at C4-C5, associated with a sizable left posterior disc herniation. Secondary myelomalacia has resulted. Less severe spinal stenosis is present at C5-C6. At T2-T3 a right posterior disc herniation is demonstrated."

• In a report dated July 24, 2003, the consulting neurosurgeon reported that the worker has quite severe stenosis with myelomalacia. Subsequently, on September 25, 2003, the worker underwent an anterior cervical discectomy and fusion for cervical myelopathy.
  
  
• In May 2003 a WCB orthopedic consultant reviewed the worker's file and stated that the diagnosis was "multi level degenerative cervical stenosis with bilateral radiculitis" which was pre-existing and long standing.

On a balance of probabilities, we find that the symptoms experienced by the worker subsequent to October 12, 2002 were not caused by the workplace incident but were related to her pre-existing condition. The evidence shows that the worker's symptoms commenced many months before October 12, 2002. As well, there is no medical information on file supporting a relationship between the worker's October 12, 2002 work activities and the worker's diagnosis. We are unable to find that the worker suffered an injury by accident arising out of and in the course of her employment.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2004