Decision #184/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on September 27, 2006, at the worker’s request. The panel discussed this appeal following the hearing on September 27, 2006.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The background to this matter is complicated to a certain degree by a chronology of dates that is somewhat inconsistent.
The doctor's first report dated March 12, 1997 documents an injury date of February 26, 1997. The report suggests that the worker injured his lower back carrying mail. It notes that the worker had continued working until the pain became too severe on March 12, 1997. The diagnosis rendered was a lumbosacral sprain.
In his application for compensation dated March 20, 1997, the worker stated that he started to feel lower back pain on February 26, 1997 at 11:00 a.m. which progressively became worse. (The worker later indicated that the actual date of the incident was February 28, 1997). The worker suggested that on March 13, 1997, he asked his supervisor for assistance as he could not stand the pain but was refused. He noted that he then went to see a physician for treatment. (Based on the doctor's first report, the visit appears to have taken place on March 12, 1997.)
In a letter of “Supplemental information” provided on April 4, 1997, the worker confirmed that over the years he felt back pain on occasion and related it to the physical aspects of his work. He would seek chiropractic treatment on these occasions and the pain would resolve. He attributed his occasional episodes of back pain to the heavy and increasing volumes being carried and environmental conditions such as deep heavy snow and ice.
In his April 4, 1997 letter, the worker indicated that on February 28, 1997, he was working extra hours. While carrying 7 to 8 pounds, he fell on ice and landed onto his left side with the left arm taking the brunt of impact. He had acute pain in his left arm for about 10 minutes but then it disappeared. He finished work and went home. The depot was closed at the time.
The worker's letter suggests that by March 5, 1997, he was experiencing severe lower back pain on the right and was taking extra-strength Anacin throughout the day. He told two co-workers about his back problems. He kept on working in pain and his symptoms continued to worsen. On March 12, 1997, he told his supervisor and asked for assistance but was refused. The worker stated that his attending physician recommended that he stay off work until March 19, 1997 and then attempt modified duties. The supplemental information does not reference any injury to the plaintiff's shoulder blades or upper back.
The worker spoke with a Workers Compensation Board (WCB) adjudicator on April 9, 1997. The worker stated that he had been regularly attending a chiropractor for the past 15 years due to back pain and a doctor for the past 4 years. He said he was not sure what caused his symptoms to increase in March 1997. He said he fell during the last week of February 1997 and hurt his wrist. He did not experience an increase in back pain until approximately one week later. His doctor and chiropractor suggested to him that the fall may be the cause of his increased back pain. The worker indicated that he did not report his fall to the employer to date as he did not think it was significant.
In a report dated April 15, 1997, a chiropractor reported that he saw the worker for lower back pain in his office on March 18, 1997 and has been treating the worker for occasional lower and upper back pain since April 14, 1993 (11 visits in 1993, 6 visits in 1994, 12 visits in 1995 and 15 visits in 1996). He said “The difference this time [is] that I think the fall has initiated lumbar facet syndrome which can be notoriously stubborn and resistant to treatment.”
In a report dated April 24, 1997, an orthopaedic specialist reported that the worker complained of pain in his left shoulder for about two weeks. He further stated, “He has had pain in his left shoulder blade and his neck off and on for about three years. He has had pain in his lower back off and on for three years. His present problem started apparently seven weeks ago after he had a fall and his foot slipped, and he landed on his left elbow. He had soreness in his forearm for awhile, and then it got better. However, during the past few weeks, he has been aware of pain in his arm and in the past one week, has been finding it difficult to raise his arm up as it bothers his shoulder. He describes such problem as being a loss of power.” The diagnosis rendered by the specialist was rotator cuff syndrome.
On April 25, 1997, the employer’s representative questioned whether there was a relationship between the alleged February incident and the worker’s resulting time loss given that the worker delayed in reporting the February incident.
In a sworn statement dated May 6, 1997, the worker indicated that his back was fine prior to March 1997. On February 28, 1997 he was doing overtime call back when he slipped and fell onto his left forearm arm on snow covered ice. He did not report the fall as there was no one left at the station given he was working overtime. It was the weekend and he went home and rested. By the following Monday, his arm was tender but the pain was not enough to keep him from working. He then worked for one week at regular duties and by the end of the week his back was getting sore. The pain was on the lower right side of his back and he mentioned it to a couple of friends at work. He continued to work his regular duties until March 12, 1997 and his back was so sore that he decided to see a physician. After seeing the doctor, he called work and told his supervisor that he was having back problems and said he would be off work for approximately one week. He returned to work on March 19, 1997 to modified duties. By April 14, 1997, his back was too sore to work and he noticed that his left arm, shoulder and upper back were extremely sore. He went to a hospital emergency facility and was given a prescription for Tylenol 3. He then began to notice on a periodic basis that he was getting occasional sharp pains in the region of his left shoulder and he tended to minimize the pain given the nature of his job. He was referred to an orthopaedic specialist and was diagnosed with tendonitis in the left shoulder, left arm, left upper back and lower back. The worker indicated that his fall may have been the catalyst for the onset of his symptoms.
In a statement dated May 8, 1997, the worker’s supervisor said the worker did not mention anything to her about having fallen and he did not fill out a green card. The worker called in on March 13, 1997 and said he was sick and was not coming to work. There was no mention of a back problem. When he returned to his regular duties, the worker made mention of having a sore back but was not specific as to where his back hurt or how he hurt it. During the period March 19, 1997 to April 4, 1997, the worker did mention his back was sore periodically but he was not specific regarding these complaints.
On May 8, 1997, the employer provided the WCB with a copy of a form that the worker completed regarding his absence at work on March 13, 1997. On this form, the worker checked off “sick time” instead of “injury on duty”.
In a decision dated June 17, 1997, the worker was notified that his claim for compensation had been denied based on the following rationale:
- his back symptoms did not begin until a week after the fall;
- he did not report a fall to his employer until April 11, 1997; and
- his application for leave indicated “sick leave” instead of “injury on duty”.
On July 28, 1997, a union representative contended that the June 17, 1997 decision failed to address the impact of the physical demands associated with the line of work duties performed by the worker in conjunction with the February 28, 1997 fall as a causative factor. The union representative referred to the opinion expressed by the treating chiropractor dated April 15, 1997 in which he stated, ‘I think the fall (February 28, 1997) has initiated lumbar facet syndrome which can be notoriously stubborn and resistant to treatment.”
On August 20, 1997, the union representative was informed by the adjudicator that his submission was considered but no change would be made to the decision of June 17, 1997. The case was then referred to Review Office for consideration.
In a submission to Review Office dated October 24, 1997, the employer’s representative outlined the position that the June 17, 1997 decision was correct in that the preponderance of evidence did not establish on a balance of probabilities, that an accident occurred or that the worker’s symptoms to his low back arose out of and in the course of his employment as was required by The Workers Compensation Act (the Act).
On December 12, 1997, Review Office determined that the worker was not entitled to benefits for the effects of injury to his left arm and lower back about February 28, 1997. Review Office said the present evidence did not confirm the worker’s alleged accident at work on February 28, 1997 and did not establish a probability that this was the cause of his injury. Note was made of the delayed reporting of the incident to the employer (contrary to the requirements of section 17 of the Act) and the fact that his back symptoms did not become evident until about one week later.
Review Office further noted that the worker’s back injury was consistent with the history of chronic problems dating back several years. It found that the current evidence did not establish that his back injuries are either common to or characteristic of the worker’s occupation or is more prevalent to the type of employment than to normal living experience in the general population.
On March 16, 2006, the worker appealed Review Office’s decision and an oral hearing was arranged. At the oral hearing, the worker testified that while he felt pain for about 10 minutes after the fall, the pain subsided. He testified that in terms of pain related to his shoulder blade “it didn't happen until about a week later. I felt not bad, so I went to work . . .After a week or so it just went chronic.”
During the course of the hearing some issue arose as to the exact injury for which the worker was seeking compensation. While the file made reference to lower back pain, wrist pain and shoulder joint pain, the worker clarified that he was seeking compensation for “chronic upper back pain” related to his shoulder blades.
In order to clarify this issue, the panel asked:
Q. “Is your position right now that you're not claiming for a low back injury from February 1997 or you?”
A. “ The upper back.”
Q. “So you're not claiming the low back, you're only claiming the upper back problems, right?”
A. Yes, upper is the worst.”
The panel revisited this issue on a number of other occasions:
Q. You say your shoulder blades are winged out, so now you're talking about problems with both sides of the back.
A. Both, yes, both shoulder blades.
The panel again returned to this issue.
Q. “So . . . it goes back to my first question, which diagnosis, which part of the body are we looking at being the compensable injury in 1997?”
A. “Left shoulder blade.”
Q. “So you're saying now that the problem that you want us to basically accept as part of this claim are the middle of the back problems.”
A. (The worker's representative) “Right.”
After a number of additional questions, both the worker and his representative again confirmed that the injury at issue was related to “the shoulder blade.”
During the course of the proceeding, the panel asked the worker and his representative to identify “any medical evidence in the file, in 1997 at least, to support that [the winging of the scapula] happened and, if so, that it had something to do with either the general job duties or the fall in 1997...”. The worker's representative confirmed that in terms of medical evidence, the winging of the scapula was “not really in play then in 1997.” She went on to confirm “it (the winging of the scapula) hadn't come in yet.”
For her part, the employer's representative argued that there was no cause and effect relationship between the worker's injuries and the workplace. In her submission, there was “no evidence that an immediate reported specific incident or recent change or increase in the worker's activity was reported to bring on his symptoms.”
In particular, the employer's representative focused on the fact that “[the worker] was able to do the full range [of] his [job] duties for two weeks following the apparent incident” as well as the reality that “[the worker] did not seek medical attention for his pain until March 12, 1997, two weeks post incident.”
Reasons
In this case, the worker’s entitlement to compensation benefits is governed by The Government Employees Compensation Act (GECA) and The Workers Compensation Act (the Act) to the extent it is incorporated in the scheme for federal workers.
The worker alleges that he had an injury to his upper back and in particular his shoulder blades in the late winter and spring of 1997. He suggests that on February 28, 1997 he fell during the course of his workplace duties. He attributes the alleged injury to his upper back and in particular his shoulder blades to this fall.
In making its decision, the panel is prepared to accept without deciding, that the worker had a workplace incident, a fall on February 28, 1997. For the purposes of making its decision, the panel is also prepared to accept, without deciding, that the worker has at some point in time experienced pain in his upper back and in particular his shoulder blades.
The central remaining issue in this proceeding is whether the injury to the worker's upper back and in particular to his shoulder blades arose as a consequence of his workplace activities on February 28, 1997. The panel finds, based upon a balance of probabilities, that the injury to the worker's upper back and in particular to his shoulder blade did not arise from an accident arising out of and in the course of his employment on February 28, 1997.
In making its decision, the panel has considered the record as a whole including the medical evidence, the written record and the oral proceeding. In particular, however, the panel's determination is founded upon:
- the worker's evidence regarding his physical condition in the first week following his workplace incident;
- the nature of the treatment received by the worker in the time frame immediately following his incident through April 1, 1997;
- the absence of any documentation from the treating physician, physio-therapist or chiropractor relating to trauma associated with his shoulder blades.
The worker's evidence regarding his physical condition in the first week following his accident
The worker's evidence both in writing and during the oral proceeding suggests he had a fall on his left side on Friday, February 28, 1997 and that he returned to work on the following Monday. In the oral proceeding, there was no suggestion that there was an issue with his shoulder blades or upper middle back on February 28, 1997 or in the week that followed. Instead, the worker's evidence suggests that “it didn't happen until about a week later.” He went to suggest that “after a week or so it just went chronic.” The panel finds, based upon a balance of probabilities, that the worker did not experience issues with his upper back and in particular with his shoulder blades for at least one week after the incident of February 28, 1997.
This conclusion, in and of itself, raises substantial questions as to the panel's ability, based upon a balance of probabilities, to make a link between the worker's injury to his upper back and shoulder blade and the fall of February 28, 1997. In the event that the fall was related to the injuries in question, the panel would have expected there to be a closer temporal relationship between the accident and the injury. Given the gap in time between the alleged fall and the alleged onset of symptoms, it is difficult to establish a connection between the workplace accident (the fall) and the alleged injury.
The nature of the treatment received by the worker in the time frame immediately following his accident through April 1st, 1997
The difficulty in drawing a connection between the workplace incident and the injury alleged is exacerbated when the panel considers the absence of any medical treatment for the worker's injuries until March 12, 1997 as well as the nature of the treatment received by the worker during the period between March 12, 1997 and April 1, 1997.
The panel notes that the worker did not seek any medical treatment until his visit to his doctor on March 12, 1997. The gap in time between the alleged incident and the first doctor visit raises additional doubts about the connection between the workplace incident and the alleged injuries to the worker's upper back and in particular his shoulder blades.
This analytical gap is further reinforced when one considers that the doctor's first report seems to focus upon “lower back pain” rather than any injury to the upper back or shoulder blades. To similar effect, the chiropractor’s letter of March 25, 1997 makes reference to treating the patient for lower back pain on March 18, 1997. While the chiropractor notes that he had previously treated the patient for both lower and upper back pain in previous years, there is no suggestion that the treatments of March 1997 were in any way related to pain in his upper back and in particular his shoulder blades.
Again, in the event that there was a connection between the workplace incident and the injury alleged, the panel would have expected that the worker would have sought earlier treatment and that the treatment would have been directed at his upper back in particular his shoulder blades.
The absence of any documentation from the treating physician, physio-therapist or chiropractor relating to trauma associated with his shoulder blades
The panel also notes that its review of the medical evidence on file for the period between February and May 1997 does not support a conclusion that the worker was suffering from an injury to his upper back in particular his shoulder blade which required treatment. There is discussion of injuries to the worker's lower back, his wrist and his left shoulder joint but there does not appear to be any reference to an injury to the upper back and in particular the shoulder blades.
The panel notes that during the course of the proceeding, the panel asked the worker and his representative to identify “any medical evidence in the file, in 1997 at least, to support that [the winging of the scapula] happened and, if so, that it had something to do with either the general job duties or the fall in 1997...”. The worker's representative confirmed that in terms of medical evidence, the winging of the scapula was “not really in play then in 1997.” She went on to confirm “it (the winging of the scapula) hadn't come in yet.”
This absence of medical documentation for the injury to the upper back and in particular the shoulder blades in this particular time period again raises doubts about the connection between the alleged accident of February 28, 1997 and the injury in question.
Conclusion
Considering the record as a whole, the panel finds, based upon a balance of probabilities, that the injuries to the worker's upper back and in particular to his shoulder blades did not arise out of and in the course of the worker's duties on February 28, 1997. Given the gap in time between the workplace incident and the alleged onset of symptoms as well as the lack of medical support to suggest that the symptoms were in play in the late winter and spring of 1997, the panel finds, based upon a balance of probabilities, that the claim is not acceptable.
The claim is denied.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of November, 2006