The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her right shoulder and neck difficulties are unrelated to her compensableaccident of June 3, 2014.  A hearingwas held on May 28, 2015 to consider the matter.

Issue

Whether or not the worker's right shoulder and neck issuesare related to the June 3, 2014 compensable accident.

Decision

That the worker's right shoulder and neck issues are not relatedto the June 3, 2014 compensable accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her right knee, right buttock, tailbone and right low back when she slipped and fell on a wet floor on June 3, 2014. The worker stated: "I fell backwards. When I slipped the left knee went straight out & the right knee went behind me and I landed on the knee and my tailbone. This happened about 2:30 or somewhere in there. About 3:15 I started to feel stiff and part of my back started to hurt...when I was driving home I noticed my tailbone started to hurt."

On June 5, 2014, the worker advised the WCB that she was able to work the rest of her shift after the accident and that her tailbone was giving her the most trouble. She said her knees were better. She did not have any history with the tailbone but had a prior low back injury in a different spot. In a further telephone conversation with the WCB on June 13, 2014, the worker advised that her symptoms recently progressed from her tailbone to her neck and right shoulder area. There were no new accidents or incidents since her return to work.

On August 6, 2014, a WCB adjudicator contacted the worker for additional information. The worker indicated that she first noticed issues with her neck the evening before June 12. She was driving home from work (the drive was about an hour) and felt pretty stiff. The next morning she had trouble as soon as she got to work and could barely move. She thought it was related to sitting at work and the pain from the tailbone worked itself up to her neck and shoulder area. The worker said that physiotherapy affected her low back and it would cause pain to her neck. About three weeks ago, the worker indicated that she began to have headaches after being treated with heat and massage treatment to her neck.

Medical information showed that the worker was diagnosed on June 6, 2014 with contusion to the buttocks/coccyx.

On June 13, 2014, the worker attended a hospital facility and complained of right shoulder and neck tenderness along with pain to the tailbone region. The examination findings showed that the worker sat comfortably during the examination and there was no bruising or other obvious injury to the right shoulder, back or coccyx/sacrum.

The worker also attended for medical treatment on June 19, 2014. The diagnosis rendered by the treating physician was acute right rotator cuff contusion and tendonitis with para-cervical strain.

Following consultation with a WCB medical advisor, the worker was advised on August 20, 2014 that her claim for compensation had been accepted for a buttocks/coccyx injury and that the compensable buttocks contusion appeared to have resolved by June 12, 2014. The adjudicator referred to the WCB medical advisor's opinion that the worker's neck and shoulder difficulties 10 days after the incident were unlikely related to the workplace accident. There was no mention of shoulder or neck symptoms until medical treatment was sought on June 13, 2014 after first developing trouble in the area while driving home from work on June 12, 2014.

On September 16, 2014, the worker appealed the above decision to Review Office. On October 10, 2014, the employer's representative provided a submission to Review Office in response to the worker's appeal.

On November 13, 2014, Review Office determined that the worker's right shoulder and neck issues were not related to the workplace injury. Review Office noted that the worker's incident report showed that she landed on her right knee and tailbone and there was no mention of injuring her shoulder. When seen for medical treatment on June 6, 2014, there was also no mention of a right shoulder injury. The first indication of a shoulder injury was on June 13, 2014. Review Office accepted the WCB medical opinion outlined on August 14, 2014 which stated in part:

The initial diagnosis on file, related to the reported June 3, 2014 fall onto the right knee and right buttocks, is a buttocks contusion.

The diagnosis related to the neck is variously listed as MSK (musculoskeletal) right shoulder pain, acute right RC (rotator cuff) contusion and tendonitis with paracervical strain, and right RC strain/tendinopathy with cervical strain.

The fall on June 3, 2014, was described by the claimant as onto the right knee and right buttocks. The claimant makes no mention of right neck or right shoulder symptoms during a June 5 communication with the WCB, nor on the June 6 office visit with her MD.

Right shoulder/neck symptoms are not noted until June 13, ten days after the workplace fall. It is unlikely that a fall onto the buttocks would result in neck/shoulder symptoms 10 days later.

On March 6, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Section 1(1) of the Act defines “accident” to mean “a chance event occasioned by a physical or natural cause and includes

(a) a willful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.”

Worker’s Position

The worker, representing herself in this appeal, advanced the position that her right shoulder and neck injuries were related to the workplace injury of June 3, 2014.

Employer’s Position

The employer was represented by an advocate. The employer’s position was that the right shoulder and neck problems that the worker first experienced nine days after the accident (i.e. on June 12, 2014) were not related to the tailbone buttocks injury (the contusion) suffered at the time of the accident. The advocate noted that the WCB medical advisor opined that the compensable buttocks contusion appears to have resolved by June 13. The advocate further stated that the mechanism of the workplace accident would not be expected to result in either a shoulder or neck injury because the worker reported that when she fell, she landed on her right knee and tailbone. The advocate contended that absent any evidence to establish a cause and effect relationship between the workplace injury of June 3, 2014 and the worker’s neck and shoulder conditions, there was no evidence by which the WCB could accept responsibility for those conditions.

Analysis

The issue before the panel is whether or not the worker’s right shoulder and neck issues are a consequence of the June 3, 2014 compensable accident.

In order for the appeal to succeed, the panel must find that that the effects of the worker’s compensable injury of June 3, 2014 caused or contributed to the worker’s right shoulder and neck difficulties. On a balance of probabilities, we are not able to make that finding.

In the panel’s opinion, the worker’s right shoulder and neck issues are not related to her fall on June 3, 2014. The worker was examined in a hospital emergency department on June 6, 2014, at which time she reported that she had injured her right knee, ribs and tailbone. She was diagnosed as having a “contusion of buttocks/coccyx.” When speaking to a WCB adjudicator on June 5, 2014, the worker advised that her tailbone was the primary source of her problem She stated that her knees were better at that time. No mention was made of any issues with her shoulder or neck. Based on the physician’s report of June 6, 2014, the worker made no mention of any neck or shoulder issues at the time of her fall or when seen in the hospital’s emergency department.

The worker’s letter of appeal, received by the Appeal Commission on March 2, 2015, stated that an occupational therapist assessment, conducted on December 12, 2014, “clearly states that my right shoulder/neck issues are directly related to my fall at work.”

The Functional Capacity Evaluation, dated December 22, 2014, had been commissioned by the employer’s benefit insurer. The lengthy report makes no mention of the statement referenced in the preceding paragraph.

It was not until June 13, 2014 that the worker reported that she was suffering pain in her shoulder and neck. She testified that on a pain scale of 1 to 10, the pain in her shoulder was 8 out of 10. If such pain was attributable to the accident, one would expect that it would have been experienced in much greater proximity to the accident. In that regard, a medical advisor’s opinion of August 14, 2014 stated that “It is unlikely that a fall on the buttocks would result in neck/shoulder symptoms 10 days later.”

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that worker’s right shoulder/neck issues are related to the workplace injury of June 3, 2014. The worker’s appeal is therefore dismissed.

Panel Members

D. Kells, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 21st day of July, 2015