The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 1, 1999, following receipt of an appeal from a union representative, acting on behalf of the claimant. The Panel discussed this case on February 1, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

On January 12, 1998, the claimant submitted an application for compensation benefits in relation to a right shoulder, neck and arm injury which he related to his employment activities as a meat packer/band saw operator. The accident employer opposed the acceptance of the claim as no accident information was obtained from the claimant plus the fact that he originally filed insurance disability forms for his condition. On February 24, 1998, the Workers Compensation Board (WCB) determined that the claim was not acceptable as there was insufficient evidence to conclude that the claimant's neck difficulties were caused by an accident arising out of, and in the course of, his employment. The following is a brief outline of file information which led this conclusion:

• in a letter attached with his compensation application, the claimant indicated that he felt a small kink in his neck at work on November 15, 1997. He stated that he did not know if it was work related so he did not report it to anyone. When he awoke the next morning (Sunday) his neck was sore and stiff. The following day when he went to work he felt increasing pain and stiffness in his neck and therefore sought medical attention. The treating physician prescribed oral analgesics and the claimant was advised to return to work. The claimant admitted that the doctor asked him how this happened and he told him that he did not know.
• in the same letter, the claimant stated that approximately 6 days after his return to work, he started to feel a little sore in his neck but on December 4, 1997, the pain and stiffness increased rapidly and he went to see the company nurse. The claimant stated that the nurse asked him how it happened and he told her he didn't know. Later that evening he could hardly move his head and on December 5, 1997, he returned to see his physician.
• in the same letter, the claimant outlined the dates he attended his general practitioner for treatment between December 6th and 13, 1997. The claimant advised that he was seen by an orthopaedic specialist on December 17, 1997, and that right shoulder x-rays showed degenerative narrowing at the disc. When seen by his general practitioner on December 22, 1997, the claimant discovered his problem was job related. The claimant believed his condition was caused from wrapping loins.
• on February 2, 1998, the claimant spoke with a WCB adjudicator. The claimant explained that he completed insurance forms as there was no accident at work which he could recall that caused his injury. He stated that he experienced spasms in his neck area in the past which were not work related. He stated that he did not consider his injury was work related until after discussing it with his orthopaedic specialist.
• the insurance disability forms noted on file showed that the claimant indicated that the location of his accident was at home. The claimant described his accident by stating that he turned his head to look in the right direction.

On March 24, 1998, a union representative wrote to the Review Office appealing the WCB's decision that the claim was not acceptable. The union representative contended that the claimant's job duties and repetitive right neck movements caused his injury.

In a decision dated April 3, 1998, the Review Office found that the historical information in this case did not establish either a temporal or causative relationship between the claimant's right cervical symptoms and an accident at work. The Review Office was satisfied that the predominant medical evidence and the claimant's history of prior neck spasms, was sufficient to indicate that the November 1997, episode was more likely a normal consequence of the pre-existing degenerative changes identified by x-ray. The Review Office stated that accordingly to policy, the WCB would not provide benefits for disablement due to the effects of a pre-existing condition. It was therefore concluded the claimant was not entitled to benefits for the effects of right shoulder and neck pain which apparently developed about November 15, 1997.

On April 16, 1998, the claimant asked the Review Office to reconsider its April 3, 1998, decision. On May 4, 1998, the Review Office confirmed that no change would be made to its earlier decision.

On September 28, 1998, the union representative requested the case be referred to the Appeal Commission for consideration. The Appeal Commission in turn requested and received up-dated medical reports from the claimant's treating physicians which included a general practitioner, orthopaedic specialist and a neurologist. On February 1, 1999, an oral hearing was convened.

Reasons

The issue in this appeal is whether the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are subsections 1(1) and 4(1). Subsection 1(1) defines accident and subsection 4(1) which 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.

In accordance with subsection 1(1) the panel must initially be satisfied that there has been an accident within the meaning of the Act.

Subsection 1(1) states:

Definitions

1(1) "accident" means 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."

Subsection 4(1) states:

Compensation payable out of accident fund

4(1) "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."

We find that the weight of the evidence, on a balance of probabilities supports a finding that the claimant's employment activities caused a strain to the cervical paraspinal muscle and right trapezius and an aggravation of his pre-existing non-compensable cervical condition. We do not accept however, that the employment activities are the cause for the development of the claimant's pre-existing degenerative cervical changes.

In our opinion the requirements of the legislation have been satisfied and the claim should be accepted. In reaching this conclusion we placed weight on the following evidence:

• In a report dated March 20, 1998 the first treating physician provides a history of the claimant having a kink in his neck for one day now progressively getting worse. The panel later clarified that this report covered an assessment of the claimant performed November 18, 1997;
• Evidence indicates that the claimant saw his primary physician on December 5, 1997. In the covering report dated December 22, 1997 the physician indicates that the claimant first attended the clinic on November 18, 1997, and the physician gives a history that the claimant was wrapping loins and noted the onset of right shoulder and neck pain. He further notes severe right shoulder and neck pain with exertion;
• In the same report the attending physician diagnoses right trapezius strain and that a C7 radiculopathy should be ruled out;
• In a report dated December 18, 1997 based on an examination of the same date an attending orthopaedic specialist indicates that the claimant works as a band saw operator and records a history of stiffness and tightness and neck pain with some radiation into the right arm and forearm of approximately one month duration;
• The attending specialist also notes in the same report that x-rays of the claimant's cervical spine show some degenerative changes, decreased lordosis and considerable degenerative narrowing at the disc C5-6-7;
• In a statement dated on or about January 17, 1998 the worker indicates that on Saturday November 15, 1997 while he was at work he felt a small kink in his neck, he did not report it as he felt it was muscle spasms and it would go away. The stiffness and soreness continued and on Monday November 18, 1997 the pain and stiffness increased at work and the claimant left work at 11.00 a.m. informing his supervisor that he needed to seek medical attention;
• The claimant returned to work after approximately six days when he started to feel neck soreness again. He then reports that on December 4, 1997 the pain and stiffness increased rapidly while at work;
• On December 22, 1997 the claimant was seen by his attending physician who then indicated he felt that the claimant's problems were related to his work activities;
• In a narrative report dated January 7, 1998 the attending physician documents the claimant's history and indicates that the claimant first presented to the clinic on November 17, 1997 with neck and right shoulder pain which had developed over the preceding twenty four hours. The diagnosis was definite right trapezius strain and spasm and possible degenerative disc disease of the cervical spine.
• The attending physician also notes "unfortunately, upon return to work neck and right shoulder pain progressed and radiating arm pain commenced."
• In a report dated August 22, 1998 the attending physician gives his opinion that "given the physical nature of Mr. (the claimant's) job and it's associated repetitive neck/right arm movements I feel that his injury is work related. Mr. (the claimant's) osteoarthritis may have contributed to his injury but certainly was not wholly responsible for it."
• In a report dated December 18, 1998 the attending physician indicates that in his opinion "the physical and repetitive nature of band saw operator/loin wrapper makes this activity a potential cause of Mr. (the claimant's) injury... . However, in my clinical opinion, I feel Mr. (the claimant's) workplace activities aggravated his underlying condition."
• A CT of the cervical spine performed on May 10, 1998 indicates that the discs scanned were "all degenerative with subchondral sclerosis and spurring. At C5-6 and C6-7, the canal is developmentally small. There is superimposed disc and bony prominence resulting in quite severe combined stenosis. The foramina on the other hand are reasonably well maintained at these levels. The C7-T1 level is a little degenerative, but otherwise unremarkable."

At the hearing the claimant demonstrated for the panel the mechanics required to perform his duties both as a loin wrapper which was the activity the claimant indicates he was engaged in when he first felt pain in his neck, and as a band saw operator which was the activity he was engaged in when he initially returned to work and his symptoms worsened. In our opinion these mechanics would be consistent with a sprain/strain type injury to the cervical paraspinal and right trapezius muscle and causing aggravation to the claimant's pre-existing non-compensable cervical spine condition as demonstrated by diagnostic/radiological tests. The file provides consistent evidence suggesting that the employment activities played a role in the onset of the claimant's symptoms although a specific injury did not occur and accordingly was not reported at that time. This seems sufficient to explain why a claim for benefits was not immediately filed with the WCB. A review of the evidence provided by the treating physicians and the claimant complements each other and provides consistency and credibility to support a causal relationship between the development of the claimant's symptoms and his employment.

In retrospect the evidence, on a balance of probabilities, supports a finding that the claimant sustained a non-specific accident in keeping with subsection 1(1)(b)(ii) of the Act. To further support this finding the claimant gave evidence that he returned to work on or about April 6, 1998 to the band saw operator position which had been modified since his period of disability. At the hearing the claimant gave evidence to the effect that the modifications, which involved the mechanization of the job, had alleviated activities which had previously aggravated his condition. The fact that he was able to now perform the band saw operator duties without aggravation supports the finding that the employment had played a role in his disability. We find that the worker's claim is acceptable and the appeal is therefore allowed.

The file is to be referred to the WCB so that the claimant's entitlement to wage loss benefits can be considered and determined.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 24th day of February, 1999