Decision #91/08 - Type: Workers Compensation
Preamble
On October 5, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for back, neck and shoulder complaints that she related to her job tasks as a baker. The claim for compensation was denied by primary adjudication on the grounds that it was unable to establish a relationship between the worker’s back, shoulders, neck and subsequent stress to her work. The position was confirmed by Review Office on January 3, 2008. The worker disagreed and filed an application to appeal with the Appeal Commission. A hearing was then held on June 3, 2008.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for progressive pain in her back, neck and shoulders that she related to the following job duties: “Lifting large mixing bowl, pulling dough out of mixer, putting stock away and moving bags of flour.”
In a worker incident report given over the telephone on October 5, 2007, the worker indicated that her last day of work was August 18, 2007. She had applied for other insurance benefits but her claim was denied because the doctor listed stress and depression on the application. The worker indicated that she had symptoms for about a year, both at work and at home. It started with her shoulders being tense and getting the odd headache. Her headaches then became worse and she would get sharp, burning and throbbing pain. She had these types of problems for the last six months. She noted that there had been a change in her job duties. During the last year, she sometimes worked by herself doing the baking and also had been doing the clean-up as there had been a cleaner who had been let go by the company. She complained of her injury over the past year to three company managers. She told one manager that she needed help to lift bowls but she never gave an injury description. She also complained to two co-workers that her shoulders, back and neck were sore from lifting. One co-worker would help her lift bowls in the dishwasher and helped her with other lifting.
The worker further indicated that she spoke to her general practitioner about stress and depression and not about the physical injury as she discussed this with her chiropractor. She noted that she had been seeing the chiropractor for nine years due to pain in her shoulders, neck and back.
On October 6, 2007, the assistant manager advised the WCB that the worker was seeking compensation for an injury that was never reported to anyone at store level until Friday, October 5, 2007. “This individual called me, and stated she was applying for compensation, after realizing that she was denied STD for unknown injuries. The nature of the injury she described was of the neck, back, shoulders, due to lifting dough out of the mixing bowls, and rarely putting stock away. The request for STD and compensation came shortly after the dept. had a meeting, stating that bakery staff had to be a little more flexible for their shifts, and the immediate response from (worker), was that she wouldn’t.”
A chiropractor’s first report showed that the worker attended for treatment on August 30, 2007, for her cervical and thoracic region. He reported that the worker described her injury as “progressed from lifting/carrying/reaching mixing bowls and trays causing sharp spasm/shooting pain in right arm and neck”. The diagnosis rendered was acute cervical radiculitis with trapezius/biceps strain. The chiropractor also responded to the WCB’s request for information concerning his treatment of the worker over the past nine years for back, shoulder and neck therapy in relation to her occupation as a baker. The report is dated October 17, 2007.
A Doctor First Report from the worker’s general practitioner shows that the worker was examined on October 15, 2007. The worker described stress at work over last 3 months, increase in neck, upper back and shoulder pain due to repetitive injury at work. The report indicates that the worker was seeing a chiropractor since August 2007. The diagnosis was adjustment disorder with musculoskeletal back and neck pain. It was also noted that the worker had a depressed mood with anxiety with a loss of appetite and weight loss.
On October 24, 2007, a WCB adjudicator contacted the witnesses identified by the worker. The assistant manager said the worker would sometimes say in passing that she was a bit sore but never attributed it to her work or she never reported an injury. The store manager could not recall the worker making any complaints to her and does not recall the worker having difficulties performing her tasks at work. The co-worker identified by the worker said the worker complained to her often that her back and neck were sore from lifting mixing bowls and flour bags. She recalled the worker making complaints to her about three months prior to when the worker left work.
The employer advised the WCB that the worker joined the company on June 22, 1998. On September 8, 2002, she became a baker and previously was employed as a lead hand and a department second. A physical demands summary of a baker was submitted.
On November 9, 2007, the worker indicated to the WCB adjudicator that the cleaning she did at work was not as strenuous as the baking position and required wiping down counters and machines and putting items into the sanitizer. Because this was in addition to her baking position, she was more rushed and often could not do the cleaning or would be short on her baking. The worker indicated that she currently was still unable to work due to her shoulders and neck but they had greatly improved since being off work since August 2007.
In a letter dated November 14, 2007, the worker was advised that her claim for compensation had been denied. The adjudicator’s rationale was as follows:
“…it is the opinion of Rehabilitation & Compensation Services that given the absence of any reported injury, significant change or increase in work activities, inconsistency in reporting of onset of symptoms at work to account for your shoulders, back, neck pain and stress, we are unable to establish a causal relationship between your back, neck, shoulders and stress and your work. As such, we are unable to accept responsibility for your claim, including time loss and medical treatment.”
The adjudicator’s decision was appealed by a worker advisor in a submission dated December 10, 2007. The worker advisor’s position was that the claim was acceptable based on the following arguments:
· a delay in reporting to the accident employer did not negate the acceptance of a claim if the weight of evidence supported the claim to be a just one.
· there does not have to be a significant change or increase in work activities to justify the acceptance of a claim. The worker reported that there was a change in the last year as she sometimes worked by herself and was doing cleanup due to the cleaner being let go.
· there was an abundance of objective findings in the medical information to support the symptoms as a whole are related to the worker’s very physical work demands which caused repeated strains to her neck, back and shoulder.
· the chiropractor’s reports support that the worker’s complaints are work related.
· The co-worker’s confirmation that the worker’s complaints started three months before she left work.
On January 3, 2008, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the chiropractic report from October 17, 2007, frequently mentioned the worker’s complaints of headaches in the past decade. It pointed out that depression, stress and anxiety often leads to headaches as well as subjective complaints of pain in the neck, shoulders and upper back, and these are indeed the symptoms the worker had presented to her attending medical people for the past decade.
Review Office, after reviewing all the evidence, was unable to conclude that on a balance of probabilities, it was more likely that the worker’s subjective complaints of pain throughout her upper torso and her headache complaints arose through a causal relationship with her baker duties as opposed to the evidence from the worker’s physician regarding the psycho-social aspect of her medical situation. On February 26, 2008, the worker appealed this decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. 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. (emphasis added)
The key issue to be determined by the panel deals with causation and whether the worker’s back, neck and shoulder condition arose out of and in the course of her employment as a baker.
The worker’s position:
The worker was self-represented at the hearing. The worker testified that although she could not identify a specific incident which occurred at work, her employment as a baker was a physically demanding job which required her to repeatedly use upper body strength throughout the day. In response to questioning from the panel, the worker reviewed the duties which she would perform on a typical day, and it included much lifting and pulling, some of which was at or above shoulder height. The worker described a throbbing pain in her neck and shoulders, a sensation of instability in her neck, periodic clicking across the collarbone, and a tingling feeling in her arms, on the left more predominantly than the right. She also described weakness in her arms and a feeling like she could not move her index and middle fingers. The worker had been experiencing these types of symptoms for many years and always dismissed them as regular aches and pains. In August 2007, the symptoms were getting worse, but as she had upcoming holidays, she figured she would continue to work, and then be able to take a rest while on holidays. While she was on her holidays, she finally came to the realization that it was her work which was causing her body to feel the way it did.
The employer’s position:
A representative from the employer was present at the hearing. The employer was opposed to the claim and submitted that the worker did not meet the definitional criteria for occupational disease under the Act. It was also submitted that the panel should rely on the logged facts, which were that the worker never formally reported her injury to her employer, she never told her family physician about any workplace injury, and it was questioned why, if there was a longstanding history of work related pain, it took her chiropractor five plus years to file a report with the WCB. Seeing as the claim resulted after the worker was denied short-term disability benefits by a private insurer, the employer submitted that this attempt at compensation was highly suspect.
Analysis:
The issue before the panel is claim acceptability and whether the worker’s back, neck and shoulder condition arose out of and in the course of her employment on August 18, 2007. In order for the appeal to be successful, the panel must find that the worker’s back, neck and shoulder complaints are related to the duties performed by the worker in the course of her employment. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker reviewed the types of duties which were performed by her in the course of her employment. The worker described a variety of lifting tasks, certain of which involved placing trays on racks which were above head height. Lifting and pulling was also performed in the cooler and/or freezer, and the worker indicated that the cold temperatures made the tasks harder on her body. After hearing the worker’s evidence, the panel is satisfied that the job duties being performed by her were physically demanding and involved considerable upper body movement.
In making our decision, the panel places considerable weight on the report of the chiropractor dated October 17, 2007, which outlines a history since 1999 of periodic treatment for muscular strain injury type symptoms to the back, shoulders and neck. The report states:
“As this report has entailed, the primary sites of injury have remained consistent since March 18, 1999. The signs and symptoms have increased in severity, in joint instability, neural involvement and muscular weakness, due to the repetitive nature of the injuries incurred by the ergonomic stresses created by her occupation as a baker.”
The panel accepts and adopts this statement.
Overall, we find that the worker’s job duties involved heavy physical work which could and did, on a balance of probabilities, cause the type of symptoms that she was complaining of in August 2007. On July 31, August 10 and August 30, 2007, she attended her chiropractor and received treatment for injuries which were consistent with the mechanism of her job duties. While there may have been other psycho-social factors impacting the worker’s medical condition at the time, the chiropractor’s report documents objective findings consistent with trapezius and biceps muscular strains, for which treatment was provided in August, September, and October, 2007. The panel accepts that the muscular strain injuries were sufficiently severe as to disable the worker from continuing her heavy physical job duties. By November, 12, 2007, after treatment and rest from work duties, the worker’s condition improved and she was cleared by her chiropractor for modified duties.
We therefore find that the worker’s claim for benefits is acceptable. The appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 29th day of July, 2008