Decision #111/07 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on May 29, 2007, at the request of the worker’s representative. The panel discussed this matter on several occasions, and last met on July 18, 2007.

Issue

Whether or not the claim is acceptable.

Decision

Decision: Unanimous

Background

In February 2000, the worker filed a claim with the Workers Compensation Board (WCB) for injuries related to his neck, back, both shoulders and spine that he attributed to repetitive heavy lifting while employed in a cheese processing plant. The date of accident reported by the worker was October 12, 1998.

The worker had attended a chiropractor on October 13, 1998 although no history of a workplace injury was provided at the time and no WCB claim was filed by the worker. He did not return to the chiropractor until more than one year later. A Chiropractor’s First Report dated February 24, 2000 indicated that the worker was treated for right shoulder and neck complaints and was diagnosed with a “subluxation sprain 1st rib on the right, scapular dysfunction and subluxation of T1 and T4”.

The worker sought treatment from a physician on December 16, 1998 for right ankle and knee pain, at which time “no history of injury” was reported. One week later the worker saw the physician again for multiple joint pain including his neck, ankle and shoulder. The diagnosis was possible rheumatoid arthritis and the worker was referred to a specialist. The specialist diagnosed mechanical low back pain and noted in a report dated January 21, 1999 that “the onset of his symptoms is related to the start of a job in a cheese factory where he has to use a lot of repetitive motion, particularly in lifting heavy objects from overhead to waist level”.

The worker continued to work until May 12, 1999 when he was diagnosed by his doctor as suffering from a psychological condition and declared to be “medically unfit for the next two weeks”. The doctor opined that the condition was not “due to injury or sickness arising out of patient’s employment”. The worker submitted a claim for disability to the employer’s insurance carrier and received benefits for approximately four weeks. He then applied for Employment Insurance sick benefits. No claim was filed at that time for WCB benefits.

In a letter dated February 9, 2000, the worker requested that the WCB process his application for compensation notwithstanding that it was not within the year of the injury. He explained that he had not previously applied for compensation as he “did not realize that an application had not been completed for my back problems”. He stated he had been off work since May 13, 1999 and that he had been seeing a variety of health care professionals.

The employer’s representative advised in a letter dated February 15, 2000, that the worker had been off work since May 12, 1999 due to emotional stress. She could not remember nor did she have any file notes to confirm the worker’s claim that he had told her his back was sore. She noted that employees at the plant could not specifically recall the worker complaining of a sore back. While the application for compensation referenced an injury date of October 12, 1998, the employer’s records confirmed that the worker had completed the full shifts for which he was scheduled on October 11, 12, 15 and 16, 1998. According to his employer, the worker had inquired in November 1999 whether a compensation claim had been filed in relation to his back. In a letter to him dated November 30, 1999 the employer had advised that she had no information to support his claim of back pain.

The WCB obtained a signed declaration from the worker on March 26, 2000 in which he indicated that the injury was to his entire back (neck down to his waist) and to his right shoulder and shoulder blade. The worker described that his job duties as general cheese labourer involved lifting and stacking 20 kilogram blocks of cheese. He felt that reaching up to stack the blocks had aggravated his right shoulder. He said his right shoulder pain began in the fall of 1998 when he was “lining hoops”. The worker indicated that he mentioned his shoulder pain to a co-worker and that his employer was aware of his ongoing shoulder and back problems. He stated that he was off work after May 12, 1999 for “emotional stress due to my shoulder, neck & back problems…”

On March 29, 2000, a WCB field representative met with the employer representative who indicated that she vaguely remembered that the worker mentioned some shoulder soreness after commencing work in October 1997, due to stretching and stacking cheese blocks on the A frame. The employer representative noted that the worker had other stress related personal problems in his life and that he had been the cause of problems with co-workers. The field representative met with eleven co-workers on March 29, 2000, including two who regularly carpooled with the worker and not one of them recalled the worker having sustained a back injury. The field representative met again with two of the co-workers on March 29, 2000 and they recalled that the worker may have mentioned a sore shoulder when he started working.

In a decision dated April 7, 2000, the worker was advised that his claim for compensation was not acceptable as the adjudicator was unable to establish a relationship between the worker’s injury and an accident as defined under section 1(1) of The Workers Compensation Act (“the Act”).

Subsequently a report was received from a physician dated August 15, 2000. He stated that the worker was in a working environment which was physically stressful to the point that musculoskeletal injury resulted. He said it seemed quite plausible that the worker’s musculoskeletal injuries were then exacerbated by the psychological duress he found himself in at the workplace.

On April 25, 2000, the worker appealed the April 7, 2000 adjudicative decision to Review Office. He asserted that he was injured at work in October 1998 and that he suffered from work related ailments to his neck, shoulder and back. He stated that while being treated by doctors he had worked only 2 or 4 days a week rather than a full time schedule due to excruciating pain and stress. He explained that he had taken medical leave in May 1999 due to depression “which was a complication derived from my injuries”.

On September 8, 2000, Review Office determined that the claim was not acceptable and that it could not establish that the worker had sustained a personal injury arising out of and in the course of his employment. Review Office’s rationale for the decision was outlined, in part, as follows:

“The claimant in his initial reports to the attending physician, and chiropractor provides no history of work-related injuries. Information provided by the employer has also not established that the claimant sustained any work-related injuries to his neck, shoulders, and back. As an injury had not occurred at work, the claim is then not acceptable.”

The worker attended the WCB’s offices in December 2006 and submitted new reports from his physician and a chiropractor as well as diagnostic test results and requested reconsideration by Review Office. On January 5, 2007, Review Office determined there would be no change to its decision of September 8, 2000. Review Office noted that while the new medical information explained the worker’s pain symptoms, it did not establish either that a work injury or an accident had occurred in the workplace, or that the employer or any practitioner was aware that the worker had suffered an injury at work in October 1998. It was noted that subsection 19(2) of the Act requires a claimant to file within one year after the day upon which the injury occurred subject to section 109 of the Act. Review Office did not believe that in the circumstances an injustice would be served by disallowing the claim.

On March 1, 2007, an Application to Appeal was submitted to the Appeal Commission by the worker’s representative and a hearing was arranged for May 29, 2007.

The case proceeded on May 29, 2007. The worker was represented and no one appeared on behalf of the employer. The panel considered the new medical information submitted on behalf of the worker which attributed his ongoing pain to a central disc protrusion at the T6-T7 level. Following discussion of the case on May 29, 2007, the appeal panel requested information from the worker’s disability insurer regarding his claim for long term disability benefits which he received in 1999. The disability insurer advised that these records had been destroyed, and as a result the appeal panel requested additional medical information from healthcare providers who had seen the worker for psychiatric counselling in 1999. This information was received by the panel and forwarded to the interested parties for comment. On July 18, 2007, the panel met to decide the issue under appeal and considered a submission from the worker’s representative dated July 12, 2007.

Reasons

In order to be successful on his appeal, the evidence must establish in accordance with subsection 4(1) of the Act that the worker sustained a personal injury by accident arising out of and in the course of his employment.

An accident is defined in subsection 1(1) of the Act as being

“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 advocate asked that the issue be limited to the acceptability of the worker’s physical complaints only. The panel is therefore limiting its findings and decision to the worker’s physical complaints.

The panel has carefully considered all of the evidence presented at the hearing, and we are unable to conclude on a balance of probabilities that the worker was injured as a result of an event arising out of and in the course of employment. As we are unable to find that there was an accident, the worker’s claim for compensation is not acceptable.

In reaching this conclusion the panel has taken into account a number of factors. While the worker reported that injury occurred on October 12, 1998, there was no contemporaneous reporting of an injury to the employer, to treating physicians or to the WCB. Significantly, no history of a workplace injury was provided to the chiropractor who saw the worker on October 13, 1998, or to the physician who saw the worker on December 16 and again on December 23, 1998. The first suggestion that the worker’s symptoms were work related is made in the specialist’s report of January 21, 1999. Nonetheless there was no time loss until after May 12, 1999 at which time the medical evidence suggests that the worker sought treatment for another condition.

While the worker may have experienced some symptomology in 1998, it is difficult to attribute his multiple complaints of pain in his right ankle, knee, neck and shoulder to an injury caused in the workplace on October 12, 1998. The diagnosis in 2006 of a central disc protrusion at the T6-T7 level may explain the worker’s current condition, however it is not possible to relate that condition to a work related accident. The absence of a continuity of symptomology and or treatment in the period subsequent to October 12, 1998 supports that conclusion. Most notably the evidence is that when the worker went on disability in May 1999 it was due not to any of the physical complaints first identified in October and December 1998, but rather from other conditions which continued to prevent the worker from returning to work well after his disability benefits were terminated. This was confirmed in particular by the medical information received by the panel from the local regional health authority.

In passing, even if we were to accept that the worker had sustained personal injury by accident in October 1998, we are bound to apply subsection 19(2) of the Act. It provides that subject to section 109, no compensation is payable unless application for compensation is filed within one year after the day upon which the injury occurred. Section 109 allows for the enlargement of the time for the making of an application where an injustice would otherwise result. We would be unable to find an injustice would result so would not enlarge the time for making an application under Section 109. The worker was aware at least by November 1999 that his employer had not submitted a claim to the WCB in respect of his back and shoulder. Nonetheless it was not until February 2000 that the worker submitted his application to the WCB for benefits. It is noted by the panel that the worker was familiar with the WCB claims process. Only two weeks after commencing work with this employer, the worker had developed wrist pains in both hands at work. This injury was reported to WCB and he received one week of compensation.

The panel finds the worker’s claim is not acceptable and therefore denies the worker’s appeal.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of August, 2007

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