Decision #28/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that a relationship did not exist between the worker's thoracic symptoms on June 1 and 2, 2011 and the at-work incident of May 26, 2011. A hearing was held on January 12, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for injury to her chest, mid back and stomach that she related to restraining a client on May 26, 2011. The worker described the work-related incident as follows to the WCB's call centre:

…He was throwing stuff around and when he turned around I took the opportunity to grab his hands and put them behind his back and brought him to the floor. There was a lot of force from trying to hold him down. We had to do this for a good 10 - 20 minutes…I had no pain that day. I went to work Friday and the wind started and I had to take pain killers because I have arthritis and I thought it was because of the weather. I disguised it with pain killers. Monday I was sort of fine and took a pain killer in the morning and Tuesday the same thing and on Wednesday I was sitting and watching TV and I started to have pain in my chest and it hurt to sit or stand. I saw the chiropractor and he adjusted me and said I had quite a few ribs out of place. He told me to use ice packs.

The worker's last day at work following the incident was June 1, 2011.

The employer's accident report dated June 2, 2011 stated:

The [worker] does not know when or how she hurt herself and only noticed the pain on June 1. She thinks that she may have hurt herself restraining a client on May 26 but did not notice any pain till now.

A chiropractor's first report dated June 1, 2011 noted that the worker was restraining a client. The worker had sharp pain in the mid back, front and both sides with trouble breathing and coughing. The diagnosis was a thoracic sprain/strain.

On June 3, 2011, the worker spoke with a WCB adjudicator. The worker described the incident that occurred on May 26. She said she did not feel any pain during the course of her shift that day and when she got home she was still fine. She only had pain in her ankle that she related to arthritis. On June 1, between 10 a.m. and 11 a.m. while at work, she had pain in her chest. She started walking around and taking deep breaths and it started to hurt. She took Advil at work and sat down to calm herself down and relax. One hour passed and the pain did not go away. By 3 p.m., all her work was caught up and she called her coordinator and said she had pain in her chest and was having a hard time breathing, but that she did not know what was wrong. She then attended a chiropractor and her family doctor for treatment. The worker indicated that she asked her family doctor why it took so long for the pain to appear. He said it was due to the fact that she was taking medication for arthritis and that it normally takes a week or so before the pain appears.

A doctor's first report dated June 3, 2011 noted that the worker was physically restraining a client at work. The worker had pain in the T6-8 area radiating around to the chest and abdomen. The diagnosis was a contusion strain.

On June 14, 2011, the adjudicator spoke with the worker's coordinator. She was told that the worker reported on June 1 that she was having a hard time breathing and her back was hurting. The coordinator told the worker that it sounded like she may have a rib out of place and that she needed to see a chiropractor. Nothing else was mentioned nor did the worker relate her difficulties to a work-related incident. On June 2, the worker called and said she would be off work on June 3 and that she needed to see the doctor because she thought her difficulties were because she restrained a client last week but that she did not feel anything at the time. The worker said that on the weekend she had been drinking and taking pain medication for her arthritis and probably didn't feel it, but now that she was back at work and sober, it started to hurt her again and thought it was because she restrained the client.

On June 15, 2011, the worker was issued a letter stating that her claim for compensation was disallowed as the case manager was unable to establish an accident occurred given the delay in reporting the incident to the employer, the delay in seeking medical attention and the delay in symptoms being felt. On June 16, 2011, the worker appealed the decision to Review Office.

On June 24, 2011, Review Office determined that the worker's claim for compensation was not acceptable. Review outlined the opinion that the worker's symptoms and breathing issues that were present on June 1 and June 2, 2011 occurred too many days after the fact to have a relationship to the May 26 incident of restraining a client.

On August 18, 2011, a worker advisor asked Review Office to reconsider its June 24, 2011 decision. The worker advisor submitted that the health issues identified by Review Office as being breathing issues were in fact, upper body pain issues which were related to the May 26 incident. She submitted that the use of pain medication by the worker taken from May 26, 2011 to May 31, 2011 suppressed the worker's symptoms. This was supported by the family physician (report submitted dated August 15, 2011) which read as follows:

In my opinion, [the worker's] mid back strain relates to her workplace accident of May 26, 2011. Although her presentation was significantly delayed, she had no prior back injuries, or injuries after the May 26 accident, that would have accounted for her symptoms. I believe that [the worker] having taken Tylenol for her condition from the date of the accident led to the delay in her paraspinal muscles developing reactive spasms to the antecedent accident. Hence, the most likely cause for her back symptoms would be the May 26, 2011 workplace accident.

A copy of the worker advisor's submission was forwarded to the employer for comment. On October 20, 2011, the employer noted that the worker has six WCB claims confirming that she had prior back injuries and that she was familiar with the claim submission procedures and the need to seek immediate medical assessment. The employer noted the conversation between the WCB adjudicator and the worker's coordinator of June 14, 2011. She felt it was difficult to confirm either way if the worker's mid back strain resulted from any activities outside her employment. The employer concluded that a direct cause and effect on the balance of probabilities had not been established.

In a second decision dated October 20, 2011, Review Office indicated that the new medical evidence did not alter its decision of June 24, 2011. It stated that the family physician's philosophy may be possible, but there were still five days in between May 26 and June 1 where the worker may have incurred stress to her upper torso, which produced her symptoms. Review Office pointed out that the worker's physician stated in his August 15, 2011 correspondence that the worker "had no prior back injuries" when in fact she had numerous claims with the WCB.

On November 9, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Walker:

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 worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that on a balance of probabilities, a relationship existed between the worker's area of injury, the diagnosis and the workplace incident. On June 3, 2011, the worker reported to the WCB that on May 26, 2011 she was restraining a client by having to grab and hold the client's arms behind his back, and bring him down to the floor, at which time she continued to restrain the client. The worker reported that it took a lot of force in trying to hold the client down until police and ambulance came. There was confirmation in the daily staff communication log that the workplace event occurred as described by the worker. It was submitted that it took upper body strength to restrain the client and the diagnosis of a mid back thoracic sprain/strain fit the described accident. There was no intervening incident after May 26, 2011 event which could have caused such a sprain/strain to the muscles in the mid back. Facts about strains and sprains identified that symptoms could occur suddenly or they could occur over days or even weeks. It was the worker's position that the emergence of symptoms less than a week after the event was not an unusual timeframe for symptoms to surface when muscles have been overstressed. Overall, it was submitted that the worker did sustain personal injury by accident arising out of and in the course of her employment and that her claim should be accepted.

The employer’s position:

Three representatives from the employer appeared at the hearing. The employer provided information regarding the nature of the job duties and advised that at the time of the incident, only one client was placed with the worker because of high needs. The worker and her co-worker were asked to maintain close contact with the client throughout the day to ensure that he was not harming himself. In addition to being responsible for the primary care of the client, the worker was also responsible for the upkeep and maintenance of the shelter.

The employer's position regarding the claim was that they agreed with the WCB's decision. It was acknowledged that an incident occurred and that it was without doubt an intense incident. However, it was noted that the worker continued to work for four shifts following the incident before she had to go off work for a period of three weeks. The worker's report was that she did not have any symptoms for five days after the incident. The employer agreed with the adjudicator and Review Office's opinion that this time period was too long to establish a relationship between the incident and the symptoms. It was also noted that the worker had six previous WCB claims, two of which were disallowed due to insufficient information and a failure to report. On June 1, 2011, the worker informed her coordinator that she felt like she was having a heart attack, with a hard time breathing and her back hurt. On June 2, 2011, the worker was reported by her coordinator to have said that: "All weekend long she was drinking and taking pain meds for her arthritis and probably didn't feel it all weekend, but now that she was back at work and sober, it started to hurt her again." The statement was referred to without prejudice and without judgment, but it was submitted that the statement indicated that there could be another reason for the symptoms which later presented.

Overall, the employer submitted that previous WCB claims confirmed prior back injuries and the conversation with the supervisor on June 2, 2011 indicated that there could be another reason for her back issues. While the worker was a valued employee, it was not clear that the problem she had with her back was the result of a workplace injury.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to her back during the course of her employment on May 26, 2011. On a balance of probabilities, the majority is able to make that finding.

At the hearing, the worker described the incident which occurred on May 26, 2011. She was double staffed with a male co-worker who had less experience than she did. The client was a youth who was at risk for self harm. The client became highly agitated so the worker was required to restrain him by coming up behind him and using her hands to secure both of his wrists behind his back. She then used her left shoulder to force the client down to the floor. After he was on the floor, the worker had to continue to restrain him as he was yelling and trying to head butt her. The worker and her co-worker took turns holding the client down while they waited for further assistance to arrive. The worker described the client as being a 15 year old male who was taller than her, so she had to use a lot of force to keep him restrained.

After emergency responders came and took the client to the hospital, the worker said that she still did not have any pain. She felt that the adrenaline was still in her system. The client's family was critical about the worker's actions and she therefore had to participate in meetings the next day to discuss the incident. The worker felt that this continued to keep her adrenaline flowing the next day. That evening after her shift (it was a Friday), the worker started taking acetaminophen for arthritis in her ankle. She continued to take the painkillers until approximately midnight on Sunday night. Over the weekend, she did very little - mostly sleeping, watching television and playing on the computer. She acknowledged having a few social drinks at home but she did not go out of the house. Her shifts on Monday and Tuesday followed a normal (but busy) routine and the worker did not experience anything out of the ordinary. It was only on Wednesday at around lunchtime that the worker became caught up on all her duties and was finally able to sit down and relax. She had only been seated for five or ten minutes when the severe pains began.

In the majority’s opinion, the worker’s claim for compensation should be accepted. In this case, there is no question that the worker was involved in an acute event at work which involved considerable physical exertion which was not typical of the worker's regular duties. The accident employer has acknowledged the incident and its intensity. The workplace accident in this case has clearly been established.

What is unusual in this case is that there was a significant period of time delay between the acute incident and the worker's first report of symptoms. The worker was capable of working three full shifts between the time of the incident and the presentation of the disabling thoracic symptoms. The worker's family physician provided a narrative report dated August 15, 2011 which acknowledged the significant delay and opined that the fact that the worker had taken Tylenol from the date of the accident led to the delay in her paraspinal muscles developing reactive spasm. The majority notes that there is no contrary medical opinion on file.

Although the delay in onset of symptoms was substantial and raises some question in our minds, given the intense nature of the incident and the explanation for delay provided by the physician, the majority accepts on a balance of probabilities that the worker's mid back strain resulted from the May 26, 2011 incident. We therefore find that the worker has an acceptable claim. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of February, 2012

Commissioner's Dissent

Commissioner Finkel's dissent:

The facts in this case have been set out clearly in the background and in the positions advanced by the worker (and her advocate) and the employer, as described above. I also agree with the legislation and the test regarding claim acceptability as described by the majority of the panel in its reasons above.

There is no doubt that the worker was involved in a significant physical confrontation with a client while on the job on May 26, 2011 that could have resulted in a significant physical injury which is currently described as a thoracic sprain/strain. The issue for me centres on the one week delay between the incident on Thursday, May 26, 2011 and the sudden onset of symptoms mid-day on Wednesday, June 1, 2011, and whether, on a balance of probabilities, those symptoms can be reasonably related to the earlier incident.

After reviewing all the information on file and as presented at the hearing, I have concluded that the onset of symptoms on June 1, 2011 was not causally related to the workplace incident of May 26, 2011. As such, the worker's claim is not acceptable, as I am unable to establish a workplace accident under the Act. In reaching this conclusion, I have placed significant weight on the following findings:

  • The medical diagnosis of the worker's condition, as of June 1 and 3, 2011, was a thoracic sprain/strain injury. It caused her extreme difficulties in breathing, and was treated by chiropractic treatment in the weeks following the June 1, 2011 diagnosis, as well as with an anti-inflammatory medication.
  • The worker indicated that the condition came on suddenly on Wednesday, June 1, 2011 in the middle of the workday, a few minutes after sitting down on a loveseat to watch television. She had no premonition or any prior indication that she was about to have any difficulties. Her evidence at the hearing was that the incident with her client had taken place about half way through her 12 hour shift the previous Thursday. She had no physical after-effects during the remainder of that shift, that night, or during the 12-hour shift the following day. She had two days off on the weekend, and had been essentially sedentary at home. She then had two 12 hour shifts on the Monday and Tuesday, and was about half way through her Wednesday shift when the problem arose. She advised the panel that she had not had any physical discomfort of any sort related to her back up to that point.
  • An argument was put forward by the worker's attending physician that the worker's back problems had been masked by anti-inflammatory medication (acetaminophen) that she had been taking for arthritis. The worker's evidence, however, was that she started taking this medication late Friday evening, because of weather changes that triggered pre-existing arthritis in her ankle, and that she had taken this medication steadily through the weekend until Sunday midnight. File evidence also suggests that she took the medication once on Monday morning and once on Tuesday morning. In response to a question from the panel, the worker advised that the medication would alleviate symptoms for 4-6 hours. In my view, the medication the worker had been taking was fairly mild and would not have masked the extreme condition which afflicted the worker on a sudden onset basis on Wednesday. In any event, any potential masking effect of the medication would have essentially concluded after the weekend. The additional delay to mid-day Wednesday cannot, in my view, be attributed to the use of medication.
  • As a consequence, I cannot find a reasonable medical connection between or explanation for the very delayed and sudden onset the worker's back problems on June 1, 2011 and the workplace incident on May 26, 2011.

Based on these findings, I find that the worker does not have an acceptable claim, and I would dismiss the appeal.

A. Finkel

Commissioner

Signed at Winnipeg, this 29th day of February, 2012.

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