The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with an appeal filed by the employer as to whether the worker's claim for injury is acceptable under The Workers Compensation Act (the Act). The decision made by Review Office of the Workers Compensation Board ("WCB") was that the worker suffered an injury to his neck when he pulled himself onto a forklift on March 17, 2008. The employer disagreed with this determination and filed an appeal with the Appeal Commission. A file review was held on September 28, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In April 2008, the worker called the WCB's call-in center to report a left shoulder injury that occurred on March 17, 2008 while operating a counter balanced electric forklift. The worker stated that he used his left hand to steer the forklift and that his left hand and shoulder were constantly moving. The worker indicated that his left shoulder was getting sore from compensating for his right shoulder (the worker has a compensable right shoulder injury claim from 2001).

The worker reported that a couple of days before March 17, 2008, he got onto the forklift and just moved and his neck cracked and his right hand started to go numb. He started having problems with his left shoulder/hand. He could feel the tips of his fingers tingling. He said the muscle in his left shoulder had been sore since March 2008 from the bottom of his left hand to the fingertips. He had a bit of weakness in his left hand and the weakness was really bad in his right hand. The worker indicated that he could not remember the day, but he grabbed onto the forklift and his right hand gave out and he fell onto pallets.

The employer's accident report indicated an injury date of March 31, 2008. The employer indicated that it was their understanding that the worker may have aggravated a previous injury and additional details would follow.

On April 25, 2008, a WCB case manager spoke with a physician who treated the worker in 2001 for his right shoulder rotator cuff tear. He reported that in 2006, the worker had symptoms radiating down his right arm as well as left arm symptoms. He said he treated the worker to January 2007. The worker then returned with other symptoms in March 2008. He felt it was possible that the diagnosis was cervical/nerve involvement and he did not feel it was related to the right shoulder tear in 2001. The physician opined that the worker may have injured his neck from his forklift duties (getting on and off, pulling with his arms and lifting), and that a pinched nerve may be causing pain/numbness radiating down the right arm into his hand.

When speaking with a WCB case manager on May 6, 2008, the worker confirmed that he had some symptoms in his left hand since 2006 and that the symptoms included paraesthesia in his left small and long finger. He stated that he sought medical treatment for this condition between 2006 and 2008 and was able to continue to work with these symptoms and they were not the reason he had to discontinue work as of March 2008.

The worker reported that he was climbing on his forklift on March 14, 2008 when he felt a sharp stabbing pain into his right shoulder blade. The pain was not present prior to this incident and has not gone away since. Very shortly after the onset of the stabbing pain in his shoulder, he developed paraesthesia in his right hand and arm which led him to seek treatment and go off work. The worker identified a co-worker that was aware of the incident. The worker stated that he was unsure if this was also the day that he felt paraesthesia in his hand and lost his grip climbing onto the forklift falling on his back side - or if it occurred on a different date after the event, possibly March 21, 2008. The worker denied hitting his head or having any neck involvement in this accident.

The worker's direct supervisor was contacted on May 7, 2008. He confirmed the worker's accident history of climbing on a forklift and experiencing sharp pain in his right shoulder blade. He believed the date was March 14, 2008. He stated that it was not reported right away, as the worker was on holidays from March 17 to 21. He had found out about it on the worker's return from holidays. The supervisor indicated that the worker had been doing the forklift operation as a modified duty since his 2001 injury. The supervisor had no concerns with the claim not being work related.

The claim for compensation was accepted based on a diagnosis of cervical neck sprain/strain and full wage loss benefits were issued to the worker commencing April 1, 2008.

Subsequent medical reports showed that the worker underwent a CT scan on May 12, 2008 and an MRI on August 31, 2008.

In a report dated September 20, 2008, a specialist reported that he saw the worker on September 12, 2008 and was provided with a history of neck pain, numbness in both hands and both feet, weakness and an unsteady gait. The worker also experienced neck pain that started about four months prior when he was climbing off a forklift, lost the strength in his upper limb and fell. The physician's impression was the worker suffered from cervical myelopathy which had been getting worse and surgery was recommended.

A WCB orthopaedic consultant reviewed the file on December 22, 2008 and provided the following opinions:

• the compensable diagnosis was radiculopathy of the left C4-C5 cervical neck. From the available information, there was no cause and effect relationship between the compensable injury and the current clinical condition of cervical myelopathy arising out of congenital narrowing spinal canal and degenerative disc disease C4-C5-C6. He stated this was a chronic longstanding condition with gradual deterioration and no specific evidence of relationship to the workplace.

• the worker initially complained about his left shoulder. By the time he was seen by his family physician he complained of symptoms in his right shoulder and arm and at some point later appeared to have been in a fall in the workplace which arose out of weakness and loss of balance due to the current clinical diagnosis and not to a compensable injury in the workplace.

• there was no longer a cause and effect relationship between the compensable injury and current diagnosis.

Based on the opinion expressed by the WCB orthopaedic consultant, the worker was advised on January 12, 2009, that in the opinion of the WCB, he had recovered from the effects of his compensable injury and that his current diagnosis and disability was not related to his compensable injury. On March 19, 2009, the worker's union representative appealed the case manager's decision to Review Office.

On June 4, 2009, the employer appealed the acceptance of the worker's claim, stating that there were various conflicting accident descriptions on file. The employer stated that notwithstanding these conflicts, the worker's claim was accepted for a cervical strain/strain. It was noted that although the worker made reference to an incident where he turned his head and felt his neck crack, there was no indication that this was ever reported to the employer and there was no corroborative history noted in any of the medical reports on file. The employer's advocate believed there to be no evidence of a neck injury having been sustained by the worker in the workplace.

In a decision dated July 14, 2009, Review Office confirmed that the worker's claim for compensation was acceptable and that there was no entitlement to wage loss benefits beyond January 5, 2009.

Review Office shared the employer's concerns about the different accident descriptions provided by the worker. It felt that some of the confusion was caused by the worker first claiming that his difficulties were related to his 2001 right shoulder claim. However, on a balance of probabilities, Review Office felt that the worker did sustain injuries arising out of and in the course of his employment. It found that the incident of the worker pulling himself onto the forklift and then feeling pain in his neck and shoulder established an accident as defined in subsection 1(1) of the Act.

Review Office referred to a medical report from the treating physician for an examination carried out on March 17, 2008. The physician reported that the worker complained of pain in his shoulder with radiation to under the right scapula. The pain was present for 3 days. The examination findings were limited range of motion of the cervical spine and tenderness over the C5 to C7 processes. Review Office was therefore of the view that this medical evidence supported that the worker sustained a cervical injury as a result of a workplace accident. On December 31, 2009, the employer's advocate appealed Review Office's decision and a file review was arranged.

Reasons

· the December 22, 2008 opinion of the WCB orthopedic consultant that there is no cause and effect relationship between the compensable injury as stated in the claim and the current clinical condition which is diagnosed as cervical myelopathy arising out of congenital narrowing spinal canal and degenerative disc disease C4-C5-C6. He notes this is a chronic long standing condition with gradual deterioration and no specific evidence of a relationship to the work place.

The panel finds, on a balance of probabilities, that the claim for injury arising from a workplace accident is not acceptable. The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 20th day of October, 2010