The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her neck and left shoulder complaints were not related to her compensable foot injury. A hearing was held on August 21, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits for neck and left shoulder complaints as a consequence to the August 16, 2013 compensable injury.

Decision

That the worker is not entitled to benefits for neck and left shoulder complaints as a consequence to the August 16, 2013 compensable injury.

Decision: Unanimous

Background

On August 16, 2013, the worker struck her right foot on a metal bar in the employer's parking lot while walking to work. She reported that the pain was excruciating and she was unable to work her shift that day.

Medical information showed that the worker attended a sports medicine clinic on August 16, 2013. The physician reported that the worker had pain to the right midfoot with a superficial abrasion, and there was obvious swelling. The worker was diagnosed with an abrasion and contusion.

On August 20, 2013, the worker commenced physiotherapy. The treating physiotherapist reported that the worker had pain to the top and lateral side of her right foot, tightness/stiffness to the ankle. The diagnosis was right calcaneo-cuboid sprain/contusion.

According to the physiotherapist, on September 4, 2013, the worker first started to report pain to her left neck and upper shoulder.

On September 23, 2013, the treating physician reported that the worker complained that since the work injury, she had neck and left arm pain and paresthesia into the upper arm, hand and thumb. The worker was diagnosed with left cervical C6 radiculopathy.

The worker spoke with a WCB adjudicator on September 26, 2013 regarding her shoulder, arm and neck difficulties. The worker said she tensed up when she hit her foot. She bent partially down and did not fall. She jerked back up like a whiplash motion. When she attended the medical clinic for treatment, she mentioned numbness to her fingers and also said she had a sore neck but the doctor was more concerned with her foot at the time. At her first physiotherapy treatment, she told the therapist that she felt tingling in her hand and in her arm.

On October 4, 2013, the treating physician diagnosed the worker with left cervical radiculopathy which he attributed to "overstrained at work, overcorrecting self avoiding fall after hitting forklift."

On November 19, 2013, the worker was advised that the WCB was unable to establish a relationship between her current neck and upper left arm symptoms and the accident of August 16, 2013. The adjudicator noted that when speaking with the WCB on September 18, 2013, the worker did not mention symptoms involving her neck or upper left arm. It was not until the September 23, 2013 medical report that the WCB became aware that she was now having left shoulder/neck pain. The adjudicator concluded that given the delay in reporting and delay in seeking medical treatment, no responsibility would be accepted for the worker's neck and upper left arm complaints.

On November 25, 2013, a WCB medical advisor commented that the initial medical information was consistent with a foot contusion and that the mechanism of injury would not be expected to cause a neck injury. The medical advisor noted that the worker banged her foot on something but did not fall. If she had fallen and put her arm out to break her fall, that could cause force to go through the neck and shoulder, resulting in injury, but that was not reported here. The medical advisor indicated that the worker's neck symptoms diagnosed as cervical radiculopathy was a new diagnosis and was not medically accounted for in relation to the workplace accident.

The worker underwent an MRI assessment on November 28, 2013 and stenosis of the cervical canal at C4-C5 and C5-C6 was identified.

In a decision dated December 4, 2013, the worker was advised that wage loss benefits would not be paid beyond October 31, 2013 as this time loss was due to her neck, shoulder and arm symptoms. The WCB referred to the November 25, 2013 medical opinion to support its position.

In a report dated December 5, 2013, the treating physician stated:

I first saw this patient regarding this injury on September 23, 2013, at which time she described that since her stumble and partial fall, that she has had an increasing degree of neck and left arm pain and paraesthesias radiating into the upper arm and hand. She indicated that as she was falling, she did a postural check and overstrained the left neck and arm. She was found to have tenderness in the trapezius area with limitation in cervical range of movement and she was diagnosed with a cervical radiculopathy which I suspect was related to her work injury. She has not had previous or recent neck injuries.

On February 3, 2014, the Worker Advisor Office submitted to Review Office that there was a causal relationship between the worker's compensable right foot injury and the onset of her neck, arm and shoulder symptoms. The submission indicated that the worker's description of accident on August 16, 2013 supported that she experienced a rapid deceleration throwing her head forward and then back as she tried to regain her balance. It was submitted that the MRI findings of stenosis would predispose the worker to a cervical injury.

On April 7, 2014, Review Office determined that there was no entitlement to benefits in relation to a neck or left shoulder injury. Review Office referred to the worker's incident report filed on August 30. There was no mention in the report of any injury or discomfort to anything but her foot. The report was taken only five days before the worker reported her difficulties to her physiotherapist for the first time. This suggested that the worker's symptoms materialized between these two dates. The worker then saw two different physicians and neither noted any neck or shoulder problems until September 23. The first physiotherapist advised that the first mention of neck symptoms was on September 4 or 20 days after the accident. Review Office felt the delay did not support a cause and effect relationship between the accident and the worker's symptoms regardless of the mechanism of injury or specific diagnosis of injury.

Review Office found that while a whiplash injury could certainly have occurred, there was insufficient evidence to support that one did. On April 15, 2014, 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.

Worker’s submission:

The worker was self-represented at the hearing. She described the events which took place on the day of the accident. She was walking across the parking lot in the dark when she hit a metal bar with her foot. She fell forward then lurched back to keep her balance and managed not to fall. She felt overwhelming pain in her right foot, but was able to struggle to her workplace. When she got there, she realized that the injury was bad and that she would not be able to work. The worker went to a sports medicine clinic and was seen by a doctor. She told the doctor that she had tingling in her hands and up her arm, but he said he did not see anything and he continued to treat the right foot. Over the next ensuing days, the worker took some pain medications and continued to work through the pain. On the September long weekend, the worker started noting problems with her left hand and shoulder. She went to a physiotherapist immediately who questioned whether the symptoms were related to the foot injury. At the first opportunity, she saw another physician at the sports medicine clinic who felt that the neck and shoulder symptoms were related to her fall.

The worker's position was that she respected and was relying upon the opinion of her physician. The physician's report of December 5, 2013 indicated that the worker was diagnosed with a cervical radiculopathy and that he suspected it was related to the work injury. The worker stated that prior to the accident, she had no problems: no joint pain, no leg pain, no shoulder pain. She had no falls or other incidents which could have caused the symptoms. The worker submitted that her neck and left shoulder complaints were work-related.

Employer's submission

A representative from the employer participated in the hearing via teleconference. The employer's position was that there was not a causal relationship between the foot striking the bar and the neck and shoulder symptoms. The initial medical reports on file made no reference whatsoever to neck and left shoulder issues. The report from the day of the accident diagnosed an abrasion on the right foot. The WCB medical advisor reviewed the matter and concluded that the mechanism of injury would not be expected to cause a neck injury. The employer agreed with this assessment. Overall, it was submitted that the workplace accident was not the cause of the worker's ongoing neck and shoulder pain and that the WCB's decision should be upheld.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits for neck and left shoulder complaints as a consequence to the August 16, 2013 compensable injury. The main question concerns causation. For the worker’s appeal to be successful, the panel must find that the worker sustained an injury to her neck and left shoulder when she tripped on the day of the workplace accident. On a balance of probabilities, we are not able to make that finding.

Typically, in order to find that a musculoskeletal injury results from an accident, there must be a reasonable degree of proximity between the mechanism of injury and the onset of symptoms. In this case, the worker immediately experienced excruciating pain in her right foot and her claim for the foot injury has been accepted without question. The problem in this case is that there is no documented report of neck and left shoulder symptoms until September 4, 2013.

The worker's evidence at the hearing was that when she saw the doctor at the sports medicine clinic on the date of the accident, she mentioned tingling in her hands but that the doctor was more concerned with her foot injury. Unfortunately, the doctor's report from that visit makes no mention of neck or shoulder symptoms. Similarly, the physiotherapist's initial assessment report from August 20, 2013 does not reference any upper body issues. The first recorded report of neck or shoulder symptoms is to the physiotherapist on September 4, 2013. At the hearing, the worker confirmed that over the September long weekend, she experienced a major increase in neck and shoulder symptoms. She had been at the lake doing her normal activities such as walking and light gardening when she started feeling tightness in her neck which slowly worsened. By the end of the weekend, the symptoms were significantly severe that first thing on Tuesday, she went to the physiotherapy clinic for treatment. Her regular treatment provider was not available but she was able to make an appointment with another physiotherapist. She also called the sports medicine clinic to see a doctor. The earliest available appointment was on September 23, 2013.

At the hearing, the worker described the mechanism of injury and advised that when she struck her foot, her body went forward then backwards very forcefully. The panel acknowledges that a whiplash injury and/or aggravation of pre-existing cervical stenosis could have been sustained from this mechanism of injury. Our difficulty, however, with the worker's claim for neck and shoulder injury is proximity and the delayed reporting of symptoms. Eighteen days had elapsed without the worker suffering from any major symptomatology. In order for the neck and shoulder symptoms to be causally linked to the workplace accident, the panel would expect to see immediate onset of a significant symptoms, or at least onset within a few hours or days. The eighteen days from August 16 to September 3 is just too long a gap for us to be satisfied on a balance of probabilities that there is a causal relationship. The vague report of tingling in the hands on the date of the accident is not sufficient to establish a neck and left shoulder injury as of that date. The real symptoms did not start until the September long weekend.

At the hearing, the worker relied heavily on the report from the treating physician dated December 5, 2013. The panel agrees that the treating physician is a well-respected medical practitioner and we do not question his expertise. The panel notes, however, that the physician's opinion was based on the following medical history:

I first saw this patient regarding this injury on September 23, 2013, at which time she described that since her stumble and partial fall, that she has had an increasing degree of neck and left arm pain and parasthesias radiating into the upper arm and hand (emphasis added).

This history is contrary to the findings made by the panel. We do not accept that there was an increasing degree of neck and left arm pain and parasthesias since the time of the accident. We find that there was a gap in the symptoms. Because the treating physician based his opinion on the assumption that there was a continuous progression of pain and parasthesias, the panel places minimal weight on this opinion.

The panel therefore finds that the worker is not entitled to benefits for neck and left shoulder complaints as a consequence to the August 16, 2013 compensable injury. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of September, 2014