The Appeal CommissionThe Workers Compensation Act of Manitoba

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 personal injury was caused by an accident arising out of and in the course of employment.

The worker’s position:

The worker was self-represented at the hearing. At the hearing, the worker described his position on the production line as a spot welder. He would have to maneuver and mount large metal components in place for welding. Lining up the components was a two person job. The worker had for many years worked with another production worker who knew what to do, and everything went well. The worker's evidence was that the problems began when a new person was assigned to help him and; "then the awkwardness begins, the twisting, pushing and pulling, and that's exactly what (sic) start hurting myself." By not being able to follow instructions properly, the new helper made things difficult for the worker, but since they had to keep up with the production line, there was pressure to keep producing. The worker stated that he would go home at the end of the day and feel pain in his body because of the cumbersome way in which the work was being performed.

There was an incident on March 2, 2011 for which a green incident report card was filed. The worker said that his helper that day let go of the stepwell they were working on and it pushed against the worker on his face, chest and left knee. Fortunately, the worker was wearing a visor and his face was not significantly injured. He did have a sore left knee following the incident. The worker attended at a chiropractor for treatment later that day.

When asked whether he had pain in his shoulders and upper back prior to the incident, the worker indicated that he did not. He felt, however, that his neck and shoulder pain was related to the fact that every day he had to work with someone new. At the hearing, he was not attributing his neck and shoulder condition to the specific incident which occurred that day.

At the time of the hearing, the worker had been retired from his employment for about four and a half months. He indicated that he had pain in his left hand which went up to his shoulder, and back down to his knee. His right side was feeling better, particularly since he no longer had to use his right hand for vice gripping.

Prior to the hearing, the worker submitted a letter from his treating chiropractor, date stamped July 13, 2011. In the letter, the chiropractor reported:

[Worker] has been working a strenuous job for many years…He has been working in the same position for many years and has over time experienced sore muscles and stiffness due to his work. On March 2, 2011 he was lifting the steps and felt a pull in his neck and shoulder. The pain started getting worse and he reported the injury to his employer … A diagnosis of shoulder sprain strain, cervical sprain strain and thoracic sprain strain was listed from the examination … The job that he does is repetitive in nature and over time has caused him a repetitive stress injury.

The employer’s position:

A health management specialist appeared at the hearing on behalf of the employer. The employer acknowledged that some of the movements involved in the worker's particular position were awkward and advised that an ergonomic assessment of his job was performed. Photographs of some of the duties were referred to at the hearing. It was submitted that while there were some awkward positions, these were two person lifts with weights of approximately 50 pounds. The employer maintained that the worker's shoulder injury was not a result of that positioning. The employer noted that the x-ray reports reflected findings consistent with an individual of similar age cohort as opposed to specific injury-related findings. The employer therefore supported the decision made by the WCB.

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 his work duties. The panel was not able to find that there was a causal connection between the development of his shoulder and upper back symptoms and his employment.

The letter from the treating chiropractor suggests two possible injuries: an acute event where the worker suffered a pull in his neck and shoulder on March 2, 2011, and a repetitive stress injury from performing his repetitive duties over a long period of time.

With respect to an acute event, the panel is not satisfied that there was an incident at work which caused the injury to the worker's shoulders and neck. Many of the references by the worker in the WCB file and at the hearing identified long term stresses as being the cause for his shoulder complaints. In the Notice of Injury green card, he only referred to bumping his left knee on steps for several years. In a telephone conversation with the adjudicator on April 5, 2011, the worker said that the cause of his difficulties was from years of abuse and the fact that the employer gave him people who were not familiar with the job. In the early stages of the claim, the worker never identified a specific acute event which caused him to suffer neck and shoulder pain. Similarly, at the hearing, the worker described a specific incident which occurred on March 2, 2011, but he did not attribute his neck and shoulder problems to this incident. Further, the mechanism of injury described by the worker at the hearing would not be consistent with causation of the cervical, thoracic and shoulder strain sprain reported by the treating chiropractor.

With respect to a repetitive stress injury, the evidence given by the worker regarding his job duties did not identify the type of repetitive motion involving strain to the neck and shoulder which would typically be associated with a repetitive stress injury in those areas. The worker described difficulties with instructing his co-workers, but while this may cause awkwardness, we did not see this as being causative of a cumulative injury.