The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his neck issues were not related to an accident arising out of and in the course of his employment. A hearing was held on September 26, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On October 1, 2012, the worker filed a claim with the WCB for injury to his neck and left arm. The worker stated that the date of incident was July 1, 2012 and he reported it to his employer on September 19, 2012. The worker noted that he had similar symptoms on his right side about two years ago which went away. He thought the symptoms would just go away again. The worker reported that he could not recall a specific incident but he had performed physical work for about 12 years. Some of his duties included shoveling muck, concrete and sometimes rock, using a fire hose to hose drums, changing filter panels and driving bobcats.

The worker further reported that he felt soreness in his neck when he got home on July 23, 2012. The next morning his neck was still sore and he felt tingling in his left arm. On July 25, 2012, he went to Winnipeg on another matter and decided to seek medical treatment at a clinic to ensure that he was not having a heart attack. The worker reported that he was told that he may have a herniated disc in his neck and an MRI was advised. The worker said he reported his injury to the shift boss when he returned from Winnipeg around July 30. The worker identified two co-workers who were aware of his neck pain and arm tingling.

Medical information dated July 23, 2012 diagnosed the worker with a cervical C6-7 disc herniation.

On August 16, 2012, an MRI of the cervical spine showed a tiny right posterolateral disc herniation without spinal stenosis, spinal cord or nerve root compression at C4-5. At C5-6 there was degenerative spurring in the Luschka joints bilaterally. At C6-7 there was a small left posterolateral disc herniation extending laterally just into the left intervertebral foramen.

On September 26, 2012 the employer wrote the WCB and stated in part:

In summary, according to the attached documents [the worker] was given work abilities/modification forms from his attending physician on July 27, 2012 and August 15, 2012 and he did not mention or provide these documents to his supervisor until September 19, 2012. [The worker] is well aware that he is to report injuries to his supervisor as soon as possible. He did not mention his issues being work related until he was at the Benefits Office on September 24, 2012. We have not completed an Employer's Incident Report form because he stated that he has nothing specific to relate his difficulties to.

At this time we do not know if [the worker] is pursuing a claim with your board for his difficulties with his neck, but in the event that he does it is our position and there is no evidence to support that his issues with his neck are work related and the claim should not be accepted.

After speaking with the worker and his co-workers in October 2012, the WCB case manager determined that the worker's claim for compensation was not acceptable. By letter dated November 14, 2012, the worker was advised that the WCB was unable to establish a relationship between his diagnosed cervical C6-7 disc herniation and an accident at work. The case manager referred to the MRI results of August 16, 2012 and stated that the degenerative changes in his neck would be attributable to daily activities of life over the course of many years. There was no medical evidence to indicate an onset or increase in neck symptoms that corresponded to an event at work as no injury was ever reported. The case manager indicated that the worker's supervisor stated that no injury was ever reported and that there were no changes to the worker's job duties.

On December 3, 2012, the treating physician reported that the worker's neck pain and left arm radiculopathy was most likely related to heavy repetitive physical work. On January 3, 2012, the worker was advised by the WCB that the medical evidence was reviewed however there would be no change to the November 14, 2012 decision.

On February 11, 2013, a worker advisor appealed the WCB's decision to deny the worker's claim. The worker advisor submitted that the legislation did not require that a specific incident must occur for an injury to be accepted by the WCB. She noted that the worker described the onset of his symptoms while in the course of employment on July 23, 2012. The description of the worker's symptoms and the mechanics of his duties such as heavy lifting with bending and twisting would match the diagnosis of a cervical disc herniation with compression of the nerve root. It was therefore the worker's position that his neck and left arm difficulties arose in the course of his employment.

The employer's representative made a submission to Review Office dated March 11, 2013. The employer indicated that the worker did not report his neck issues to be work related until September 24, 2012 nor did he provide his supervisor with his Work Abilities/Modification forms until September 19, 2012. The employer also provided three photographs which, it was submitted, showed the worker: "lifting, carrying and paddling a canoe around the same time as he is reporting issues with his neck." It was the employer's position that the Adjudicator's decision that the claim was not acceptable should be upheld.

A copy of the employer's March 11, 2013 submission was provided to the worker for comment. The worker's response is on file dated March 19, 2013.

On April 11, 2013, Review Office determined that the claim was not acceptable. Review Office noted that the worker reported that he had worked for 12 years in heavy labour jobs. He stated that he had not experienced any neck or left arm trouble until the evening of July 23, 2012. On July 27, 2012, the worker told his doctor that he had a history of neck and left arm pains. He said the pains had been occurring for a period of three weeks prior to his appointment and he was unaware of what could have caused it. Review Office noted that the worker suggested that the degenerative changes of his cervical spine had been enhanced or that the degenerative process was sped up due to his work history and/or an incident of striking his head in 2003.

Review Office concluded that the worker's reported history of his neck difficulties to his doctor on July 27, 2012 was, on a balance of probabilities, the most accurate. It was only assumed by the worker that his neck and left arm difficulties were work related because he could not think of another reason, even though there was no intervening event at work. Review Office also pointed out that the worker did not relate his issues to work or his work duties until after he was informed by his employer that they could not accommodate him in a light duty position.

Review Office indicated that the WCB had been provided with five different scenarios, times and/or activities as possible causative factors. In relation to the worker's neck injury, it could not establish the "nature, condition or obligation of the employment" which lead to the worker's injury. It was therefore concluded that the worker's claim was not acceptable. On April 30, 2013, the worker appealed Review Office's 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 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 and was accompanied by his father. The worker described his job as physical work involving heavy lifting, using a sledgehammer, shoveling rock and muck, hosing, and changing large filters using impact guns and pipe wrenches. The environment was rough and dusty, and there were low hanging areas where workers commonly banged their heads. He had been employed at this position for about 12 years.

On July 23, 2012, the worker first experienced neck symptoms while he was working on changing panels. His neck started to get stiff but he still finished his shift. He went home and had a hot shower. The worker had the next few days off as his son was scheduled to undergo a medical procedure in Winnipeg. While the worker was in Winnipeg, he went to have his neck and left arm examined as he was experiencing increasing pain and numbness in his left arm.

After six days, the worker returned to work and performed his regular duties, except for the panel changes. He also limited his shoveling when it became uncomfortable. The worker stated that he advised his shift boss about his neck problems, but his shift boss never asked for a restriction form and then he went on a month long holiday shortly thereafter. The worker worked alone most of the time so he did not talk much about his injury to other co-workers. There were times where he was asked to work in other areas, and on one occasion, he told them he could not do the heavy work so he was given some lighter computer duties.

The reason why the worker did not report his injury until September 24, 2012 was because he had already told his shift boss about the injury before he went on holidays and then after that, the worker limited his work by avoiding panel changes and heavy shoveling. The worker thought that his employer knew what was going on with his neck as he had been attending multiple doctor appointments and he was not performing all of his regular duties.

The worker stated that his specialist told him that people who do heavy repetitive lifting are at high risk to get his neck condition. The worker felt that as his specialist told him that he had a repetitive injury, this should be followed rather than someone who just looked at his file.

The employer’s position:

The employer's benefit administrator represented the employer at the hearing. The employer confirmed the worker's job description and advised that the position was not considered to be one of the more physically demanding positions with the employer. The employer's position was that they did not challenge the fact that the worker had a medical issue with his neck but questioned whether or not it was work related. It had been almost two months before the worker claimed that the issue with his neck was related to his work duties or to a work activity. The worker clearly stated that no specific incident at work was reported. While it is not uncommon for people to assume that spine difficulties have to do with work activities, they could also be hereditary or due to outside activities. It was submitted that the worker had degenerative changes to his cervical spine, but that there was no supporting documentation that this was caused by any work activities.

Analysis:

This issue before the panel is whether or not the worker's claim is acceptable. In order for this appeal to be successful, the panel must find that the worker’s medical condition was caused by his work duties. On a balance of probabilities, the panel was not able to make that finding.

The worker's diagnosis is a left cervical C6-7 disc herniation. The worker's evidence was that his left sided condition had never resolved. It was now 40 to 50 percent improved over how it was initially, but he still had symptoms. His specialist advised him that given the location of his herniation, surgery would not be recommended and it was hoped that the condition would improve on its own with exercises and avoidance of physical work. The worker advised that he was now experiencing the same type of symptoms on the right side. The symptoms developed in a similar manner as the left side, where it started with just a little bit of tingling in the hand, which bothered him more at night. At the time of the hearing, the worker was scheduled to go see his specialist because of the new right sided symptoms which were developing.

On a balance of probabilities, the panel finds that there is not enough evidence to satisfy us that work duties caused the worker to suffer this condition. At the hearing, while the worker described first developing stiffness while changing filters, there is no indication that an acute event causing a herniation occurred that day. The physician the worker first attended on July 27, 2012 noted "no known mechanism of injury." The initial Worker Incident Report on file also reflects the worker indicating that there was not a specific incident that he could recall. It would therefore appear that this medical condition is one which developed in the absence of a specific acute event which occurred at work.

The panel was concerned by the delay in reporting. Although the worker's evidence was that he informed his shift boss and limited his physical work, the panel does not understand why he did not file a claim with the WCB if he felt that his condition was related to work. The worker had multiple previous WCB claims so he should have been familiar with the process. He had follow-up medical appointments in Winnipeg in August 2012, for which he could have received benefits for time missed from work and travel expenses, yet he did not file a claim. His condition was obviously significant as his symptoms were present for almost one month by that point, without any signs of resolving. The panel is of the view that the worker's inaction in reporting his injury to the WCB and commencing a claim suggests that the condition was not work related.

The panel notes that the specialist provided a brief one line report dated December 3, 2012 which states: "Above patients current neck pain and L arm radiculopathy is most likely from his heavy repetitive physical work." There is no elaboration regarding the extent of the specialist's understanding of the nature of the work duties performed by the worker nor is there an explanation as to why a radiculopathy would develop as a result of work. At the hearing, the worker described his job duties in detail. While there were some heavier tasks, we do not find that his job required heavy repetitive physical work. The task of changing filters, which the worker identified as being problematic, involved lifting panels weighing only 20 to 25 pounds, and took approximately one hour of a twelve hour shift to complete. While there was undoubtedly some heavy physical work required in the position, we do not find that it was repetitive.

The panel also notes that although the worker had been relatively sedentary since he went off work in September 2012, he had nevertheless developed a similar condition on the right side. It is notable that when describing the condition, the worker indicated that it developed: "very similar to how it was when it started out on my left hand, where it starts off - - it just tingling a little bit." This indicates a slow, progressive onset of the condition. The fact that the similar right sided condition has developed despite no work activity and a sedentary lifestyle weighs against finding that the worker's job duties somehow played a role in the development of his condition on the left side.

Overall, when considering the evidence as a whole, the panel finds that there is insufficient evidence to convince us on a balance of probabilities that the worker’s left side medical condition was caused by his work duties. We therefore find that the claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of November, 2013