Decision #165/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable for an arm and neck injury occurring on December 15, 2011. A hearing was held on November 25, 2013 to consider the matter.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 a work-related left arm and neck injury with the date of accident of December 15, 2011. The worker described the accident as follows to the WCB's call centre:
The truck had backed up to the dock and I was helping with the ramp and that's when it happened. I felt a pain shoot in my arm. The ramp is excessively heavy.
The worker indicated that the last day he worked after the accident was December 29, 2011.
The Employer's Accident Report indicated that the worker called on January 2, 2012 and left a voice mail saying that he thought he hurt his neck and arm at work from unloading a truck.
A Chiropractor First Report showed that the worker attended for treatment on January 3, 2012. The worker indicated that he bent to pick up a heavy ramp and had arm and neck pain which gradually worsened. The diagnosis was an acute C5 disc injury with nerve entrapment.
On January 10, 2012 a WCB adjudicator contacted the worker for additional information. The worker reported that the incident occurred sometime during the week of December 11 to 15, 2011. He could not identify a precise date of accident. He said the incident likely occurred between 11 a.m. and 1 p.m. as that was when most of the trucks arrived.
The worker noted that he experienced pain in his upper left arm region when he lifted the gate on the date of accident. The pain eventually radiated into his neck. When asked when the neck pain started, the worker claimed it started in the weekend prior to filing his claim with the WCB. When asked what he was doing on this weekend, the worker advised that he took his son back to Saskatchewan.
The worker said he did not report the incident to his employer until after the New Year. The worker provided the names of two co-workers and said he may have advised them that he pulled something while lifting.
The WCB adjudicator also contacted the two co-workers identified by the worker. One co-worker indicated that he first became aware of the worker's difficulties when he called in on January 2, 2012. The worker did not advise him of any work injury occurring in December 2011 and he did not make any ongoing complaints nor did he appear to be in any physical distress. The other co-worker stated that the worker did not advise him of an injury occurring in December 2011. He noted that the worker did not make any ongoing complaints related to a work injury.
On January 11, 2012, the WCB determined that a relationship did not exist between the development of the worker's left arm/neck difficulties and an accident "arising out of and in the course of" his employment. The adjudicator referred to the following evidence in support that the worker's claim was not acceptable:
- the worker was able to perform his regular job duties and hours without ongoing complaints.
- the worker delayed in advising his employer of his difficulties until January 2, 2012.
- the worker delayed in attending healthcare treatment until January 3, 2012.
- the inconsistencies regarding the actual date of incident.
On January 11, 2012, the worker said he advised his supervisor on the date of accident that he hurt his arm lifting the ramp. The worker noted that the conversation with his supervisor took place in the coffee area of the warehouse.
The WCB adjudicator spoke with the worker's supervisor on January 11, 2012. He said he first became aware of the worker's difficulties on January 2, 2012. At no time in December 2011 did the worker advise him of a work injury. On January 11, 2012, the WCB adjudicator advised the worker that based on the information she obtained from the supervisor, no change would be made to her earlier decision to disallow his claim.
On January 24, 2011, the worker appealed the decision to Review Office. The worker submitted a June 19, 2012 report from his treating physician which showed that the worker was seen on December 16, 2011 for left shoulder upper arm pain. The diagnosis was muscular pain/muscle strain.
Review Office subsequently wrote to the treating physician for additional information. On April 20, 2012, the treating physician reported that the worker came to the clinic on December 16, 2012 for treatment. The physician stated:
"He came with 2 problems. Started with upper respiratory infection. Unfortunately, it was busy day and I was not able to assess his shoulder issue in detail on that appointment. He mentioned that it happened at work and I advised him to make an appointment for next day, but I look at the shoulder and did recommend NSAID and ice. Patient did not come for next appointment. On Jan 19 he mentioned that he was seeing chiropractor."
On May 4, 2012, Review Office determined that the worker's claim was not acceptable. Review Office commented that the evidence was insufficient to reach the conclusion that a work related injury by accident occurred. Review Office noted that the only supporting evidence was from the general practitioner. They were understandably vague, given that she instructed the worker to return the following day for a proper review and he chose not to return. Review Office noted that the worker worked most of the next several weeks without apparent difficulty and without reporting the accident to his employer. Review Office further noted that the worker had been diagnosed with an acute C5 disc injury with nerve entrapment. Given to what transpired between mid and late December 2011, Review Office indicated that it would be unable to relate the diagnosis to a mid December 2011 accident. On June 15, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
The worker disagrees with the WCB and Review Office decisions that his claim for a left arm and neck injury is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of his employment.
Worker's Position
The worker was self-represented. The worker explained his reasons for appealing and answered questions from the panel.
The worker explained that on December 15, 2011 he was working in the dock area. He reached to lift the ramp and felt a kink in the muscle area. He said he heard a snap or crack noise, pointing to a specific location beside his biceps muscle a few inches down from his shoulder. He then told his supervisor that he injured his arm but is not sure his supervisor heard him.
The worker said that he saw his physician the next day due to a viral infection. He also told her about his arm and she told him to take NSAIDs. He missed work for several days after December 16, 2011 due to the viral infection.
The worker said that closer to the New Year he drove to Saskatchewan and while driving his neck felt stiff. On the return trip, his neck worsened and he could not move it. He called his workplace to advise that he would not be in and then went to see his chiropractor. He received between 10 and 14 treatments and was off work for approximately 2 weeks. He said that he had not recovered after the 2 weeks but had to go back to work because he needed the money.
In describing the symptoms and pain he had on his drive back from Saskatchewan, the worker said that it felt like a different problem. He said it felt bigger and was not a "go away kind of problem". He said there was a burning pain, and indicated the area of his neck and along the top of his shoulder.
The worker also advised that he was in a motor vehicle accident in April 2013.
The worker said that he thinks the injury to his neck occurred when he was lifting the ramp.
Employer's Position
The employer did not participate in the hearing.
Analysis
The worker has appealed the WCB and Review Office decisions that his claim for a left arm and neck injury is not acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of his employment. The panel finds, on a balance of probabilities, the worker's claim is acceptable but only in relation to a muscular strain which the worker sustained at work on December 15, 2011. However, the panel is unable to relate the worker's neck condition which commenced while driving from Saskatchewan to Winnipeg and resulted in the need for chiropractic treatments and time loss in January 2012 to his work duties.
As noted above, the panel finds that the worker was injured while working on December 15, 2011. The worker described the incident which caused his injury. He said he was working in the dock area, he was reaching to lift a ramp when he felt pain in his arm. While doing this he felt a kink in the muscle in his left arm. He said it made a snap or crack noise. He noted that the ramp was excessively heavy. The panel accepts this as the mechanism of injury.
The worker saw his physician the following day, December 16, 2011, who later supplied a note indicating that "was seen in clinic on December 16, 2011 for (lt) shoulder, upper arm pain. He was diagnosed with muscular pain/muscle strain and was treated with NSAID PPR." She provided a further note to the WCB on April 20, 2012 confirming that she looked at the worker's shoulder and recommended NSAID and ice. Based upon this evidence, the panel is able to find that the worker sustained left shoulder and arm muscular pain/strain while at work on December 15, 2011.
However, later in December, the worker drove to Saskatchewan. He said that while driving to his destination, his neck felt stiff and when driving home it worsened to the point that he could hardly move his neck. He said he had a burning pain. He went to see a chiropractor on January 3, 2012. The chiropractor diagnosed an "acute C5 disc injury with nerve entrapment." The panel notes that the chiropractor's treatments were focused on the neck and not the shoulder or arm. The panel is not able to relate this injury and the chiropractor's treatments to the December 15, 2011 workplace injury. The neck injury occurred away from the workplace and consists of different symptoms and diagnosis than those described immediately following the work injury of December 15, 2011. Based on the available evidence, the neck injury is not related to the worker's employment.
In limiting the claim acceptance to the muscular injury, this will limit the nature of the benefits to which the worker will be entitled.
The worker's appeal is approved in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 5th day of December, 2013