Decision #92/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her back and neck difficulties were not related to an accident arising out of and in the course of her employment. A hearing was held on March 17, 2014 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On November 3, 2010, the worker filed a claim with the WCB for a back and neck injury that occurred at work on September 22, 2010. The worker stated that they were moving furniture around September 13 when she felt a pinch in her back. The worker noted that on the day it happened, the pain was not that bad but it continued to get worse. While making coffee at work on September 22, she started to feel dizzy and was taken to a hospital for treatment. The worker reported that she went off work completely as of November 1, 2010.
Medical information confirmed that the worker was seen at a hospital emergency facility on September 22, 2010 with complaints of dizziness and feeling faint. The diagnosis at that time was vertigo. On September 28, 2010, the worker again sought treatment at a hospital emergency facility with complaints of low back pain shooting into her neck for a week. The worker attributed the pain to moving and lifting heavy furniture at work.
Primary adjudication contacted the worker on November 10, 2010 to obtain additional information related to the specific work duties she was performing during the week of September 13, when she started to experience back pain. The worker advised that she did not have back pain prior to starting the project of moving furniture. The worker indicated that on the first moving day she was fine with no pain or symptoms. After they were done moving, she felt a sharp pain in her back when she went to sit down at a desk chair. The worker indicated that she told a co-worker that she had back pain and that she had hurt her back. A co-worker concluded that her back pain was likely from moving furniture.
On November 12, 2010, the worker's supervisor said she was not aware of the worker having any difficulties until September 22, 2010 when a co-worker reported that the worker was sitting in the lunch room and was feeling dizziness. She said she was not aware of the worker having any back difficulties.
On November 15, 2010, the adjudicator spoke with the co-worker identified by the worker. The co-worker confirmed that the worker had made ongoing complaints of neck, head and back pain from the time she was moving furniture to the time when the ambulance was called on September 22. She said the worker did not mention a cause for her soreness but she presumed it was from moving office furniture.
On December 10, 2010, the worker was advised that her claim for compensation was denied as the WCB was unable to attribute her neck and back difficulties to an accident arising out of and in the course of her employment. The adjudicator's decision was based on the medical reports on file and the fact that the employer was unaware of any back difficulties until the worker required medical attention for dizziness.
On August 11, 2011, the worker's legal representative appealed the WCB's decision to deny the claim to Review Office. It was felt that the worker's neck and back difficulties were related to her job duties of moving office furniture.
On September 28, 2011, Review Office confirmed that the worker's claim for compensation was not acceptable based on the following findings:
- the worker claimed that she developed neck and back difficulties due to the job duties that she performed on September 13, 2010 to September 16, 2010, however the worker said she first noticed back pain when she was going to sit down on a chair.
- the worker made complaints of back pain to a co-worker but she did not indicate what caused her back pain.
- the worker did not report an injury to the employer nor did she make ongoing complaints to the employer.
- the hospital reports did not provide a diagnosis for the worker's neck or low back pain. The reports mainly dealt with the worker's complaints of dizziness.
- the worker did not seek medical treatment specifically for her neck and back until she attended a chiropractor on October 22, 2010.
On December 20, 2013, the worker appealed Review Office's decision to the Appeal Commission through the Worker Advisor Office and a oral hearing was held on March 17, 2014.
Following the hearing, the appeal panel requested medical information related to the worker's neck and back condition. On June 6, 2014, the worker advisor was provided with a copy of the medical reports and was asked to provide comment. On June 25, 2014, the panel met further to discuss the case and rendered its decision.
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 neck and back condition arose out of and in the course of her employment.
Worker's Position
The worker was represented by a worker advisor who made submission on behalf of the worker. The worker and worker advisor answered questions posed by the panel.
The worker advisor submitted that the worker's claim is acceptable. He reviewed the file information. He noted that a co-worker provided evidence supporting the worker's claim that she was injured at work. He also noted that two physicians provided a diagnosis of a neck and back strain/sprain.
The worker advisor indicated that worker was a poor historian and could not remember details regarding symptoms, onset, medical visits/ treatments, discussions with medical providers but that there is sufficient other evidence to support that an injury occurred at work while she was moving furniture.
Upon receipt of the additional information obtained by the Appeal Commission, the worker advisor submitted that the worker suffered from myofascial pain as diagnosed by the treating physiatrist. He noted the physiatrist's narrative report dated March 24, 2014 wherein the physiatrist indicates that the worker suffered from myofascial pain syndrome after the accident and continues to suffer from this diagnosis.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained personal injury by accident arising out of and in the course of her employment. In other words, the panel must find that the worker injured her neck and back while performing employment duties.
The panel finds that the worker did sustain an injury while moving furniture at work over a period of several days commencing on September 13, 2010. The panel notes that the worker's regular duties were not physical, although she worked with boxes of files. The panel finds that the assignment to move furniture was a significant change in duties. The panel accepts the worker's evidence that prior to moving the furniture she did not have back pain or problems. It is only after she moved furniture for several days that she developed back symptoms. The worker reports that she first felt symptoms around September 16, 2010.
The panel relies upon the evidence provided by the worker's co-worker who confirmed that right after the moving was finished the worker reported that her neck, head and back were really sore. The co-worker estimated that the furniture weighed up to 110 pounds and that the worker and her co-workers were pushing, pulling, and dragging furniture. The co-worker said that the worker did not attribute her pain to moving furniture, but she assumed that was the cause of her complaints.
The panel is unable to relate the worker's attendance at hospital on September 22 to the back injury. However, the panel finds that time loss beginning from September 28, 2010 is related to her work duties. On this date she attended an emergency facility with complaints of low back pain shooting into her neck.
The worker saw two physicians and a chiropractor for neck and back strains or sprains. She was eventually referred to a physiatrist who examined and assessed her on March 10, 2011. The physiatrist's impression was that the worker had myofascial pain syndrome and some cognitive issues and inability to focus. She recommended a stretching program and physiotherapy. The physiatrist examined the worker again on June 22, 2011 and found no active trigger points except possibly on the left side. When seen again on August 24, 2011 the physiatrist noted that "she still has significant pain complaints with no active trigger points to be found, to be injected and I feel that her psychosocial predicament is causing amplification of her pain."
The panel accepts the diagnosis of myofascial pain was due to the workplace injury, and is consistent with the early diagnosis of a neck and back sprain/strain. This was an acute injury which resolved over a period of time. In this regard, the panel notes that by June 22, 2011 the physiatrist was not able to find active trigger points and again on August 24, 2011 found no active trigger points and commented that "her psychosocial predicament is causing amplification of her pain". The panel received the physiatrist's report of March 24, 2014, and notes that the physiatrist has not seen the worker since August 22, 2011. Accordingly the panel is unable to give any weight to the physiatrist's comments regarding the worker's current condition.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 14th day of July, 2014