The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB")that his claims for workplace injuries in 2009 and 2013 were not acceptable.  A hearing was held on October 23, 2014 toconsider these matters.

Issue

Claim for Injury of June 1, 2009

Whether or not the claim is acceptable.

Claim for Injury of January 4, 2013

Whether or not the claim is acceptable.

Decision

Claim for Injury of June 1, 2009

That the claim is acceptable.

Claim for Injury of January 4, 2013

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on June 22, 2009 for injuries he sustained on June 1, 2009 to his neck, right shoulder and arm. The worker described the accident as follows:

We had an x-ray machine in 6 different crates and there was one big crate and it was 1014 lbs and I called 2 other people to help me with it. We had to take it out of the crate and we used the elevator to get to the 2nd floor and we had to set it up for the technician. When we were trying to lift it with 4 guys and there was 2 of (sic) guys at the base and there was 2 of us on the other side lifting. After we lifted it I could feel like a pinch in my neck and didn't think it was a big deal and figured it would be fine. The pain never went away and it went down into my right shoulder and arm.

The worker indicated that he first saw a chiropractor on June 18, 2009 as he thought his neck injury was minor and that it would go away. Then his right arm and shoulder was not getting better so he decided to see a doctor. His last day of work was June 19, 2009. The worker said he reported the accident to a dispatcher on June 1, 2009.

File records show the worker attended a chiropractor for treatment on June 13, 2009, and complained of right-sided upper back and neck pain, achy at rest and becoming sharp with movement. The worker indicated that he was lifting a machine with a co-worker when he felt a pain in his upper back/neck.

On June 30, 2009, a WCB adjudicator spoke with the employer who indicated that they were not aware of the worker's injury until June 16, 2009. The adjudicator also spoke with the dispatcher identified by the worker and she too was unable to recall an injury reported by the worker.

On July 13, 2009, a co-worker advised the WCB that he was with the worker at the time of the injury. He said they were not provided with the proper equipment to move a heavy 2000 pound x-ray machine. He said the worker tweaked his neck and that he made ongoing complaints.

On July 16, 2009, the worker was advised that his claim for compensation was not acceptable given the delay in reporting the injury to his employer and the delay in seeking medical attention. Based on these reasons, a relationship between his neck and shoulder condition and his work activities had not been established.

On February 8, 2013, the worker filed a second claim with the WCB for a right elbow injury that occurred on January 4, 2013. The worker reported that he lifted/carried a hide-a-bed with a co-worker using both arms when he felt like someone stretched out something in his right elbow. It was a pulling type pain. The worker said he reported it to his employer on January 21, 2013.

The Employer's Accident Report dated February 13, 2013 indicated that the worker picked up a dresser and file cabinet on January 4, 2013 and then felt swelling and burning in his elbow and forearm. Since then, his arm has been stiff and sore and hard to bend his elbow.

Medical information on file consisted of the following reports:

• December 17, 2012 medical appointment: Right elbow pain, intermittent, increased pain 1 month ago. RHD (right hand dominant) works moving and lifting furniture for 12 years, skidooing. Impression: Mild osteoarthritis and heterotopic ossification, mechanical symptoms.

• December 17, 2012 - right elbow x-ray report: "Heterotopic ossification. Has there been prior surgery? If not, this may represent a calcific bursitis."

• January 11, 2013 medical appointment: Right elbow/arm follow-up. Pain is deteriorating. Can't lift well. Struggling at work.

• February 18, 2013 - Physiotherapy Initial Assessment: The therapist's diagnosis was right elbow, questionable osteoarthritis, bone chips

• March 2, 2013 - MRI right elbow: 1) Faint heterotopic ossification 2) No evidence for significant ligamentous or tendinous injury 3) No definite intra-articular loose body. If this remains clinically of concern, CT air arthrography is recommended.

• March 14, 2013 medical appointment: Ongoing pain right arm, now mostly on extensor side over ulna. Flexor side is not as bad. Impression: Elbow pain with extension block.

• March 26, 2013 - WCB medical advisor opinion: The test results are more consistent with a degenerative condition and would unlikely be related to the recent lifting episode. Wear and tear or remote trauma and a loose body could be associated with the abnormality reported on x-ray and MRI.

On February 21, 2013, a WCB adjudicator spoke with the worker regarding the mechanism of injury. The worker reported that he was at a customer's location on January 4, 2013 when he lifted a piece of freight and experienced pain in his right elbow. He advised the dispatcher of his arm injury and he attempted to continue working through the pain. By January 21, 2013, his elbow was too swollen and he was unable to continue working.

On March 13, 2013, the WCB adjudicator called the worker to enquire about any pre-existing issues dating back to mid-November 2012. The worker advised that he had been "working hurt" for quite some time. It was part of his job duties as a mover.

On March 22, 2013, the employer indicated that they were unaware of the worker having elbow difficulties in October, November or December 2012. The worker did not report any workplace injuries or elbow pain. The employer had concerns about the relationship between the worker's ongoing elbow issues and his work duties as the worker did a variety of unrelated activities which included dune buggy riding and snowmobiling.

On March 27, 2013, the dispatcher advised the WCB that she recalled the worker making complaints about his elbow on one occasion. The worker indicated that he was not sure if his elbow pain was related to years of working in the moving business or being hard on his body from extra-curricular activities. The worker told her that he was big into snowmobiling and he ran his snowmobile into a tree.

In a decision dated March 28, 2013, the worker was advised that the WCB was unable to find a relationship between his elbow issues and his work activities and that his claim for compensation was not acceptable. The adjudicator noted that the medical information showed that the worker was first assessed for right elbow issues on December 17, 2012 and that he experienced intermittent pain for over one month. No mechanism of injury was reported. The diagnosis was osteoarthritis and heteroscopic ossification. The adjudicator advised the worker that his file had been reviewed by a WCB medical advisor and it was felt that the diagnosis was related to degenerative changes which could not be attributed to the specific incident provided.

In a note to file dated April 2, 2013, the WCB adjudicator spoke with the worker who indicated that his ongoing elbow problem was a result of his prior disallowed elbow claim for 2009. The worker felt that he never healed from it and his ongoing issues were directly related.

On May 22, 2013, the worker spoke with a WCB claims supervisor stating that he was told by his doctors that there was nothing wrong with his elbow and that it was all related to his neck and upper back injuries in relation to the 2009 accident.

On July 9, 2013, the worker filed an appeal with Review Office with respect to the decisions made on his 2009 and 2013 claims.

With respect to the 2009 claim, Review Office determined on September 9, 2013 that the claim was not acceptable as it was unable to substantiate that an accident occurred on June 1, 2009. Review Office felt there were too many inconsistencies in the file information to substantiate that an accident occurred on June 1, 2009.

Regarding the 2013 elbow claim, Review Office determined on September 9, 2013, that the claim was not acceptable as it was unable to establish that the worker sustained an accident on January 4, 2013. Based on the significant delay in seeking medical treatment and filing a claim with the WCB, Review Office felt that the worker's right elbow difficulties pre-dated the January 4, 2013 claimed incident. Review Office agreed with the WCB medical opinion that the test results were more consistent with a degenerative condition as opposed to the lifting episode. Review Office noted that the work orders provided by the worker did not provide evidence to support that the worker sustained an injury on January 4, 2013. On July 10, 2014, the worker appealed Review Office's decisions and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from the worker's treating chiropractor and medical chart notes from a clinic that the worker attended for treatment. On January 27, 2015, the interested parties were provided with the medical reports received by the Appeal Commission and they were invited to provide comment. On February 25, 2015, the panel met further to discuss the case and to render decisions.

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)

Worker’s position:

The worker was self-represented at the hearing. The worker stated that the first time he injured himself in June 2009, he just knew something was wrong and that he felt something happen in his arm. He told people around work about the injury, but did not think it was a big deal as everyone got a sore arm on occasion. He went back to work and a couple of days later he realized he had stiffness and was unable to straighten his arm. The worker's evidence was that he had pulsation and swelling in his arm and that he was unable to perform his duties due to the pain in his arm. On the suggestion of his employer, he went to see a chiropractor.

The worker submitted that since that time, he has worked despite the pain and the fact that he has been unable to fully straighten his arm. In 2013, he hurt his arm further while lifting heavy furniture. Eventually, his arm was no longer able to handle the lifting work and his doctors told him in 2013 that he should find another job. He was continuing to have his arm looked at, but his doctors were telling him that there was nothing that they could do for it.

Employer's position:

The employer was represented by an employer advocate and its operation manager. The employer's position was that with respect to the 2009 claim, it did concede that it was possible that an incident occurred on June 1, 2009. That being said, the employer shared the WCB's concerns regarding delays in reporting, in seeking medical treatment and the onset of total disability. Combined with the inconsistent witness accounts, it was submitted that it was difficult to conclude that a disabling incident occurred in relation to a workplace event.

Moreover, the employer noted that the injury being claimed by the worker at the hearing was a different account of what the injury was at the time. At the hearing, the worker claimed that he could not straighten his arm as a result of the injury. But the first appointment with the chiropractor on June 13, 2009 described an injury involving pain in the upper back and neck. There was no mention of elbow pain or dysfunction at the appointment or in conversations with the WCB at the time. After the claim was denied by the WCB, there was no further contact from the worker until four years later in May 2013.

With respect to the 2013 claim, the employer's position was that this claim was not acceptable because the worker was already receiving medical treatment prior to the January 4, 2013 incident and had had some problems with his elbow for some time prior to that. The panel was asked to place emphasis on the opinion of the WCB medical advisor who indicated that the findings on MRI were consistent with a degenerative condition not related to the recent lifting episode.

Overall, the employer felt that there was no cause and effect relationship between the worker's current elbow difficulties and his 2013 job duties or the 2009 claim. The worker had a pre-existing elbow problem and his claims were not acceptable.

Analysis:

There are two appeals before the panel. In order for either of the appeals to succeed, the panel must find that the worker suffered a personal injury by accident arising out of and in the course of employment. We will address each appeal separately.

Claim for Injury of June 1, 2009

With respect to the claim for injury on June 1, 2009 while lifting a heavy machine, the panel is satisfied on a balance of probabilities that the worker did sustain a cervico-thoracic strain injury to his upper back and neck. In coming to this decision, the panel relied on the following:

• The evidence is not in dispute that the worker's job duties on June 1, 2009 involved participating in an awkward, heavy lift. This mechanism of injury is consistent with the diagnosis of a cervico-thoracic strain.
• Although there were issues regarding delay in reporting to the employer, a co-worker who was interviewed on July 13, 2009 was able to confirm that the during the following 2-3 days after the injury, the worker made ongoing complaints regarding his "tweaked neck."
• The treating chiropractor who saw the worker on June 13, 2009 confirmed that the worker reported a consistent mechanism of injury whereby the worker was lifting a machine with a co-worker when he felt a pain in his upper back/neck.
• The panel accepts the worker's explanation for his delay in reporting and seeking medical attention. The worker indicated that while his neck was sore the same day, one week later he noticed it was getting worse. He had thought that the condition would go away on its own, but it did not.
• The panel notes that in a telephone conversation on June 30, 2009, the treating chiropractor indicated that he was treating a cervical and thoracic sprain/strain and a right gleno-humeral sprain/strain, that the worker was demonstrating good progress, and that he would be able to return to work on Monday, July 6, 2009. The panel finds that this time frame would be consistent with a resolving sprain/strain injury.

At the hearing, the worker submitted that his current difficulties with right elbow pain were related to the injury he suffered in the 2009. Following the hearing, the panel requested further medical information from the treating chiropractor and from a sports medicine clinic where the worker received treatment.

The chiropractor's chart notes indicate treatment of the neck and upper back from June 13 to July 24, 2009. The areas of pain were marked on chart but did not include the right elbow. There was no mention of the elbow until the worker returned to the chiropractor in late June 2013 to request a report summarizing his condition.

The sports medicine clinic notes indicate that the worker first sought medical attention on December 17, 2012 in relation to "recent recurrent increased pain to the right elbow one month ago." The worker did report a remote strain from two years ago, but no further details were provided. X-rays of the right elbow were taken and the physician impression on that attendance was mild osteoarthritis and heterotopic ossification with mechanical symptoms. The worker was further assessed at the clinic for possible surgical intervention, but none was recommended.

On review of the medical evidence, the panel can find no continuity between the symptoms complained of in 2009 and the worker's current right elbow difficulties. The right elbow was never mentioned in 2009 and no treatment was geared to this anatomy. On a balance of probabilities, the panel finds that the worker's 2009 compensable injury was limited to a cervico-thoracic sprain/strain.

We therefore find that the worker's 2009 claim is acceptable. The worker's appeal on this issue is allowed.

Claim for Injury of January 4, 2013

With respect to the claim for injury on January 4, 2013 while lifting a hide-a-bed couch, the panel is unable to find on a balance of probabilities that the right elbow condition complained of by the worker was caused, aggravated or enhanced by the job duties performed on that date. Prior to that date, the worker had already been seen at the sports medicine clinic complaining of recurrent increased pain to the right elbow. Imaging findings identified heterotopic ossification in the right elbow. These findings were described by the WCB medical advisor to be more consistent with a degenerative condition and unlikely to be related to the recent lifting episode.

The panel considered whether the pre-existing degenerative condition could have been aggravated or enhanced by the job duties performed on January 4, 2013 and we find that this finding is not supported by the evidence. The worker's evidence was that after he stopped working for the accident employer in November 2013, he found new employment which involved lighter duties. Despite being away from the lifting work, his right elbow condition had become worse. Even when he did not do anything with his arm, it would still cause him problems. In view of this, it would appear that while the right elbow pain symptoms may have been elicited while the worker was performing job duties, the evidence does not indicate that the job duties worsened the pre-existing osteoarthritis and heterotopic ossification condition, which was the underlying cause for the right elbow pain.

Overall, the panel is not satisfied on a balance of probabilities that the acute lifting incident on January 4, 2013 caused, aggravated or enhanced the worker's right elbow condition. We therefore find that his claim is not acceptable. The worker's appeal on this issue 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 11th day of March, 2015