The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on May 27, 2008 at the request of a union representative, acting on behalf of the worker.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 8, 2005, the worker filed a claim with the WCB for chest pain that occurred at home on February 16, 2005 and was reported to his employer on February 17, 2005. The worker indicated that because his injury occurred in the evening, he just rested and then sought treatment from a physician on February 17, 2005. The worker indicated that he was at home in his kitchen when he felt a sharp pain in his chest and then he lost his breath and his legs almost gave out. After he drank some water he felt better and was able to breathe again. The chest pain continued for the rest of the evening and it did not get any worse. The worker described his daily work duties as pushing hogs over a distance and then onto trailers after being weighed. He used both hands to perform these functions. The worker noted that he pulled a chest muscle at work in 2003.

The employer’s accident report stated that the worker had been feeling discomfort which he thought was normal aches and pains. On February 16, 2005, the pain became severe and he was forced to sit down to recover from it. His job was heavy lifting, pushing, pulling and raising hands overhead to work. On February 21, 2005 the doctor told the worker that he had a chest injury and not a heart attack as he had previously been told. The employer further indicated that it took exception to the worker’s time loss associated with the claim. The employer noted that the worker brought in a clearance to return to regular duties on February 18, 2005 but felt sick so he went home. The employer believed that if the worker had not been misdiagnosed he would not have missed any work. The worker had brought in restrictions for alternate duties on February 22, 2005 and was given work that involved sitting, no lifting and no use of his left hand/arm.

On February 17, 2005, the treating physician noted that the worker had some left sided chest pain for 2 to 3 weeks and he felt the sensation of somebody pushing hard on his chest yesterday. The worker was assessed with “chest pain – rule out cardiac”. The worker was instructed to take it easy at work and was prescribed nitroglycerine and to see a specialist.

The worker was seen by a specialist on February 22, 2005. He reported that the worker still had left sided chest pain and was tender over the left anterior chest wall area, over the intercostal muscle. He assessed the worker with muscular pain over the chest wall. When seen again on March 4, 2005, the specialist assessed the worker with intercostal muscle strain and was given a note for lighter duties and to follow up in two weeks time.

On March 17, 2005, the worker was advised that his claim for compensation was not acceptable on the basis that he was fine when he left work on February 16, 2005, the onset of his symptoms occurred at home and there was no work related history provided to his attending physicians. As such there was no relationship between his chest difficulties and an accident as defined under subsections 1(1) and 4(1) of The Workers Compensation Act (the “Act”).

On June 22, 2005, a union representative appealed the WCB’s decision to deny the claim. She contended that the worker suffered a muscle injury while in the course of his work and that his claim should be accepted. She indicated that the worker did in fact advise his employer and the WCB that he had pain in his chest area prior to the acute episode he experienced at work and that a physical demands analysis would assist in determining what muscle groups are used in the course of the worker’s work duties.

The case was referred back to primary adjudication to gather additional information. On July 27, 2005, the employer provided the following information to the WCB adjudicator:

· The worker reported the accident on February 17, 2005, not February 15, 2005;

· On February 17, 2005, the worker reported this to be non work related and he called in sick to work;

· He attended the nurse’s office on February 18, 2005 with a doctor’s note which cleared the worker to return to work. He did not return to work on February 18, 2005 as he had a fever;

· On February 21, 2005 the worker advised the nurse’s office that he did not have a heart attack but torn muscles in his chest that were work related;

· The worker’s supervisor indicated there were no complaints of chest pain made by the worker prior to February 18, 2005 and there was no record of visits to the company nurse for chest pain prior to February 18, 2005.

On August 30, 2005, the worker provided the following information to the WCB adjudicator:

· He started to have chest pain on February 16, 2005 between 3 and 4 p.m. and his shift ended at 3 p.m. on February 16, 2005.

· Between the end of his shift and when he first experienced chest pain, he picked up his kids at day care and came home.

· He did not report to the employer or to the nurse’s office prior to February 17, 2005 in regards to prior problems.

· He mentioned to a co-worker that he was having chest pain but did not remember the date.

In a decision dated September 9, 2005, it was confirmed by primary adjudication that after reviewing the new information, no change would be made to the decision conveyed on March 17, 2005. In November 2005, the union representative appealed the decision to Review Office.

On November 17, 2005, Review Office confirmed that the claim for compensation was not acceptable. Review Office determined the file evidence did not support the worker’s contention that his employer was aware of his prior chest pain, there was no relationship between the worker’s job duties which he had performed for 3 years and the sudden onset of chest pain at home on February 16, 2005 and that an accident as defined in subsection 1(1) of the Act had not been established due to the delay in the onset of symptoms. On November 23, 2007, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged. On May 15, 2008, the worker’s union representative provide the Appeal Commission with additional information which consisted of a medical report by an occupational physician dated January 19, 2006 and a statement from the co-worker identified by the worker as a witness to his chest pain.

The Oral Hearing

An oral hearing was held on Tuesday, May 27, 2008.

The Job Duties

The worker and his representative began by describing the nature of the worker's job on February 16, 2005. The worker was a lead hand in a pork processing plant. His work team was responsible for moving hog carcasses out of a cooler, along an assembly line and down onto a trailer. The distance was roughly forty yards. A hog carcass was estimated to weigh about 90 kilograms with a group of five weighing in the range of 450 kilograms or 1,000 pounds. It was suggested that it took about 265 hog carcasses to fill a trailer.

The worker indicated that the hogs were hung on rollers above his head. On the day of his injury, the overhead conveyor system was turned off. A worker had to push a group of five hogs out of the cooler to the left towards the scale using his arms at about chest height. The hogs were pushed to a scale; a hand brake was engaged and then the hogs were weighed. Following the weighing, the hogs were examined at a check stand and then another brake was released and they were pushed down into the trailer. Once inside the trailer, they were pushed “from one end right to the other.”

In the worker's view, the most force required in pushing the hogs would be “pushing them out of the cooler . . . out to the left . . . We had to push them against the grain, out of the cooler and the initial hit on that curve . . .when it hits the curve . . .it can be hard on you, yes” In cases where the rollers were jammed, the worker suggested that the degree of effort to move them along was significant: “you had to give them a good shove, yes”. The worker also indicated that releasing the hand brake with ten to fifteen hogs against it required a considerable degree of force.

Normally, two individuals would be in the cooler pushing groups of five carcasses out of the cooler; one person would be at the scale; another would be on the check stand and there would be two at the trailer. On the day of the injury, there were only two employees performing these particular tasks. The workers alternated at the heavy task of pushing the hogs out of the cooler. During the week of February 16, 2005, the worker estimated he would push about 400 hogs a day.

The worker acknowledged that he was a smoker and that he had a smoker's cough. When asked if he was coughing more than normally at the point in time, he suggested “that I can recall, no”.

The Submission of the Worker's Representative

In the submission of the worker's representative, there were two significant issues:

i) did the worker experience chest pains at the workplace before he went home?

ii) could the work activities lead to the type of injury suffered?

i)Were there symptoms of the injury at the workplace?

The worker's representative took the position that there was substantial documentation suggesting the worker was experiencing chest pains at work prior to and on the day of the alleged workplace injury. The representative pointed to:

· The Doctor's First Report which suggested that the worker had been experiencing chest pains for two or three weeks prior to the alleged incident at the workplace;

· The Employer's Report of Accident which indicated that the worker had been experiencing what he thought of as normal aches and pains prior to the alleged day of the injury. It suggested that the worker's chest pain became severe enough on February 16, 2005 that the worker had to sit down to recover;

· The statement of a co-worker who recalled an occasion where the worker was pushing hogs onto the trailer and the worker appeared to be extreme pain holding his chest. The co-worker suggested that he told the worker to go see a nurse. In the co-worker's view, “he was quite persistent that he was OK but you could tell he wasn't.”

ii) Was the Mechanism of Injury Consistent with the Injuries Experienced?

The worker's representative referred to the diagnosis of the worker's physician who concluded the worker “suffered a muscle strain to [his] chest wall” which appeared to be related to his work duties.

Reference was also made to the opinion of the occupational health specialist that the worker's job description would put several muscle groups at risk of strain. In particular, the occupational health specialist suggested that

. . . pectoralis major (chest) particularly the costal division, intercostals (chest wall), exterior oblique (abdominal) muscles, serratus anterior (shoulder girdle, chest wall) are likely candidates for strain.

With reference to Travell and Simon's text on myofascial pain, the occupational health specialist also addressed the possibility of a delayed reaction to the muscle strain. He noted that as an overused or strained muscle cools down, it may become inflamed and the next use may result in a sharp pain. He observed that an individual experiencing this type of injury sometimes displays symptoms similar to those of a heart attack.

In the submission of the worker's representative, “on a balance of probabilities, the weight of the evidence does support a conclusion that [the worker] suffered a delayed onset muscle strain injury from his work.”

The Submission of the Employer's Representative

The employer's representative took the position that there was no evidence whatsoever of an accident arising out of and in the course of employment. In her submission, “it's entirely plausible and more likely that [the worker] could have suffered a chest wall strain from coughing.”

In support of this position, the employer's representative pointed to:

· the worker's report to the WCB in which he indicated that he was standing in his kitchen when he experienced a sharp pain;

· the February 17, 2005 examination by a physician who noted the worker had been having some left-sided chest pain for two to three weeks and had been coughing and choking;

· the fact the worker smokes about half a pack a day;

· the fact that the worker subsequently missed work due to a fever.

The employer's representative raised issues relating to the credibility of the worker. She noted that the worker advised the adjudicator on March 11, 2005 that there had been no change in his job duties. She wondered why it was not until 2008 that the worker reported that his work area was short-staffed on the day in question.

The employer's representative also raised issues about the reliability of the statement of the co-worker and the worker that he experienced pain at work. She referenced a statement to the adjudicator on March 11, 2005 suggesting the worker felt fine when he left his workplace. She noted that the early physician's report identified left side chest pain and muscle strains but “there is no indication whatsoever that this was caused by any activities at work . . . “

The employer's representative did concede that on February 21, 2005, the worker had advised the nurse's office that he had torn muscles in his chest related to work. However, she observed that neither the records of the worker's supervisor or the nurses' station revealed any complaint of chest pain prior to February 18, 2005. She noted that while the co-worker believed the worker had gone to see a nurse there was no record to suggest such a visit took place.

In terms of the issue of delayed onset, the employer's representative submitted that “there was no specific incident that occurred at work that could have accounted for the chest pain at home hours later, chest pain so sudden and extreme that he thought he was having a heart attack.”

In her view, there were material questions about the credibility of the worker and the co-worker and substantial evidence to support an alternative cause of the worker's injuries that was not work related. In her view, the case theory presented on behalf of the worker “just doesn't add up” and there were “many inconsistencies”.

The Panel's Enquiry

Under questioning by the panel, the worker:

· recalled experiencing work pain in the period two weeks before his injury “thinking it's just work, normal work pain”;

· indicated that he could not remember if he was in pain going to work on the day of the alleged injury;

· confirmed that he did not remember the day point by point;

· suggested that “it (his chest) was bothering, obviously, during the day, but I never thought anything else of it because you hurt every day when you work there”;

· remembered stopping for a second and thinking I may have hurt something;

· confirmed that he was able to finish his shift;

· suggested that he “believed” his co-worker mentioned seeing a nurse “but I didn't feel I was injured enough to go to the nurse”;

· indicated that “because we were working short handed and . . . .maybe I did take my anger out pushing the hogs”;

· suggested that he was on relatively light duties turning gloves inside out for the next two weeks after he returned to work and that from time to time he felt “almost like a small push every once in awhile, if I would turn the wrong way . . .”

Reasons

· on the day of the workplace injury, the worker was involved in heavy physical labour involving the pushing at times of approximately 450 kilograms of hog carcasses;

· during the day in question, the worker suffered a muscular strain while engaged in his workplace duties.

In making these findings, the panel notes that the nature of the work activities including pushing and pulling the carcasses at shoulder height is consistent with the mechanism of injury. It also finds that the opinion of the occupational health physician is helpful in explaining both the mechanism of injury and the delayed onset of the worker's more notable physical complaints until shortly after the worker finished his shift.

While the panel acknowledges some limitations in the evidence of his co-worker (it does not appear the worker reported any injury to the nurses' station on the day in question), the panel accepts that the co-worker witnessed the worker in some difficulty related to his chest. In making this finding, the panel accepts as some corroboration, the worker's appropriately cautious statement that he “believed” his co-worker mentioned seeing a nurse “but I didn't feel I was injured enough to go to the nurse”.

The panel also observes that there is no dispute that medical attention was sought the next day and that by February 21, 2005, the worker had reported to the nurse's office that he had torn muscles in his chest related to work. While there was some confusion with the early diagnosis of his injury, by February 21, 2005 it was clear that there was a muscle strain.

Finally, while the panel notes that there was some discussion of pleurisy on the record there was no treatment regime aimed at a diagnosis of pleurisy. In the panel's view, based on a balance of probabilities, pleurisy was not a factor.

Conclusion

Based on a balance of probabilities, the panel finds that the claim is acceptable. The appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 23rd day of July, 2008