Decision #35/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for an injury to her chest and upper mid back which she related to her work duties. The claim for compensation was denied by both primary adjudication and Review Office on the ground that the worker’s symptoms could not be attributed to an accident arising out of and in the course of employment, as required by subsection 4(1) of The Workers Compensation Act (the “Act”). The worker disagreed with the decision and appealed to the Appeal Commission. A hearing was held on February 20, 2008. The worker appeared and provided evidence. An advocate appeared on behalf of the employer.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptableDecision: Unanimous
Background
The worker filed a claim for chest and upper/middle back pain that she related to her work activities. On May 4 and 5, 2007, she had to deal with a difficult stroke patient which involved lots of pulling, pushing, twisting and turning. The worker reported that she had the next two days off and that she slept the first day and did a couple loads of laundry the next. After she went to bed on May 7, she awoke two hours later with chest pain symptoms and thought she was having a heart attack. She went to an emergency facility for treatment in the morning. Stress tests were taken and cardiac involvement was thought to be unlikely.
On May 8, 2007, the worker phoned her ward to advise that she would not be in for her next scheduled shift on May 9. She advised that she was in emergency and that she would be having a stress test. She also said that she was unsure of what had happened and it may have been related to work. The worker did not file a report to her employer until May 15, 2007.
Upon speaking with a WCB adjudicator on May 30, 2007, the worker stated that she was assisting a patient on May 4 and 5, 2007 who kept slipping out of his recliner and she had to restrain his wrist to the chair. She believed that holding the patient’s hand down on the arm of the recliner led to the pain that she was experiencing to her middle back and chest area. The worker indicated that she did not realize her pain was work related until May 9, 2007, when her physiotherapist and doctor told her it was the muscle in the back and chest that was causing her difficulties.
Hospital medical information indicates that the worker complained of chest heaviness and sharp pain radiating into her back and under the left arm when she attended for treatment on May 8, 2007. It was indicated that the worker’s chest pain was “unlikely cardiac” and a CT scan was recommended to rule out a thoracic dissection. Subsequently, the CT scan report indicated “No evidence for aortic dissection”.
A doctor’s first report dated May 17, 2007, indicated that the worker was injured from providing care to a combative patient. She had right mid back pain radiating into the chest. The diagnosis was an upper back strain.
In a June 26, 2007, report, a physiotherapist noted that the worker attended physiotherapy on May 28, 2007. On that date, the worker had definite muscle spasm from T6 to T8 on the right. Range of motion (“ROM”) of the cervical spine was full and ROM of the thoracic spine was 10% limited in rotation bilaterally. The physiotherapist opined that the worker had sustained a thoracic sprain of her right T6 and T7 costo-transverse joints as a result of her work related injury, attempting to seat a difficult patient on May 4, 2007.
A report from another physiotherapist indicates that at the time of the injury, the worker had been attending physiotherapy since January 23, 2007 for symptomatic management of spasmodic torticollis. Objective findings on July 9, 2007 included reduced joint mobility/stiffness to her right costo-transverse joints (ribs 6-8), myofascial trigger points to right rhomboids (tenderness on palpation) and tenderness lateral rib #4 without any tenderness intercostally or in the serratus anterior muscle. It was reported that the worker continues to attend physiotherapy for a general reconditioning program.
In a decision dated June 25, 2007, the worker was advised that the WCB was denying her claim for compensation on the basis that it could not relate the given diagnosis with the mechanism of injury provided.
On July 9, 2007, the worker provided additional information to the WCB which included statements from two co-workers. These statements indicated that the worker complained of abdominal pain on the weekend beginning May 4, 2007 because the healthcare aid working in her area was not strong and was unable to assist her with lifting and transferring patients. The other statement indicated that the worker called the ward on May 8 and indicated that she would not be in to work the next day. She was currently in Emergency and would be having a stress test on May 9. The worker said she was unsure of what had happened and that it may have been work related.
On July 25, 2007, the WCB adjudicator did not accept responsibility for the worker’s claim as she was unable to establish that an accident occurred on May 4, 2007. This decision was reached based on the following factors:
- the worker’s symptoms began three days later while at home;
- no diagnosis was given when the worker first obtained medical attention on May 8, 2007;
- the worker called in sick to work on May 9, 2007;
- the worker did not report an accident to her employer until May 16, 2007.
In a submission to Review Office dated July 31, 2007, a worker advisor pointed to evidence on file to support the position that the worker’s chest and back symptoms were causally related to her employment duties on May 4, 2007, that involved repeated struggles with a patient and that there was no other injury or outside activity which might have caused her symptoms. On September 14, 2007, an advocate for the employer rebutted the worker’s advisor’s position and agreed with the WCB that worker’s injury did not arise out of and in the course of her employment.
On September 19, 2007, Review Office confirmed that the claim for compensation was not acceptable based on the following evidence:
On October 30, 2007, the worker disagreed with Review Office’s decision and filed an appeal with the Appeal Commission. A hearing was then arranged.
Reasons
The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:
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.
The key issue to be determined by the panel deals with causation and whether the worker’s personal injury was caused by an accident arising out of and in the course of employment.
The worker’s position:
In her written submission, the worker attributes her symptoms to the difficulties she had handling patients during her shifts on May 4 and 5, 2007. The worker admits that due to family history, she initially thought she was having a heart attack, but notes that at the same time, even before she got the stress test results back, she thought that she may have hurt herself at work.
At the hearing, the worker testified that after the EKG’s and blood work came out normal, she: “just assumed something, like something at work had happened that I had this pain.”
The worker further testified that she went to a physiotherapist, who told her she had a thoracic sprain. About two weeks later, the pain spread from the mid chest and mid back to extend into the area on her right side by the fourth rib. At the present time, she continues to experience pain deep inside the middle of her sternum which extends to the fourth rib on the right side. The pain in her mid back has been better in the past six months, with an occasional odd little twinge. Her physicians have not been able to come up with a diagnosis for the cause of her pain, and it appears that they are approaching the point where they say there is nothing more that they can do for her.
The employer’s position:
The position forwarded by the employer’s representative was that the evidence does not support that the worker sustained a work-related injury, as there was no link. It was only after tests ruled out any cardiac involvement that the worker thought her chest and upper back strain might be due to working with the stroke patient. The employer’s representative submitted that such an acute pain with sudden onset could not be related to a muscle strain or soreness that developed at work three days earlier. It was suggested that other factors were at play, possibly the doing of laundry at home precipitated the difficulties.
Analysis:
In order for this appeal to be successful, the panel must be satisfied that an accident has occurred within the meaning of subsection 1(1) of the Act. We would need to find that the worker’s medical condition was caused by her work duties. The panel was not able to find that there was a causal connection between the development of her chest pain symptoms and her employment.
The only record of complaint of pain by the worker during her shifts on May 4, 5 and 6, 2007, is a reference made to a co-worker about abdominal pain. There is no indication that she was experiencing any pain in her chest on either the left or right side. After dealing with the difficult stroke patient for two days, she was still able to perform all of her duties during her 12 hour shift on May 6. From the time of the end of her last shift at approximately 8 pm on Sunday, May 6, until she went to bed at 9 pm on Monday, May 7, there were no indicators that the worker may have suffered an injury. There was a complete lack of symptoms. The worker indicated that she was tired from her three day weekend shift, but she was not experiencing any pain or discomfort.
We have reviewed the job duties performed by the worker on the days in question, and although she was working with a combative patient on May 4 and 5, there is nothing to suggest that the nature of her job duties would cause an injury that would result in the types of symptoms about which the worker is complaining. It is noted that the worker was able to carry out her duties on May 6, which continued to involve heavy lifting as she had other stroke patients and an MS patient to look after that day and she was still working with same healthcare aid.
At the present time, the worker continues to consult with her general practitioner regarding her ongoing symptoms and has been referred to a specialist in physical medicine. Although she has undergone a number of tests, including x-rays, CT scan, MRI, bone scan and a nerve conduction test, her physicians have not been able to diagnose the cause of her chest pain. In the panel’s opinion, the inability to diagnose suggests that the worker is suffering from spontaneous onset of symptoms of unknown etiology which is not relatable to a workplace injury or event.
Given the temporal distance between performance of the workplace duties and the sudden and severe onset of symptoms, we are unable, on a balance of probabilities, to find a causal connection between the worker’s symptoms and her employment, and thus are unable to establish a workplace accident under the Act.
The appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 4th day of March, 2008