Decision #128/16 - 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. A hearing was held on July 25, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On May 7, 2015, the worker filed a claim with the WCB for chest pains that he related to his work activities that involved lifting and moving racks and panels that weighed 40 to 50 pounds. The accident date was listed as April 29, 2015.
The employer's accident report indicated that the worker called on April 30, 2015 to say he was at a hospital emergency facility with chest pains. On May 6, 2015, the worker called to say that he hurt his side from lifting.
The WCB obtained chart notes and tests results regarding the worker's hospital visit on April 30, 2015.
A Doctor First Report from the family physician showed that the worker sought medical treatment on May 6, 2015 with complaints of left-sided chest wall pain after a pulling injury at work. The worker was prescribed medication and was considered capable of returning to his regular duties by May 11, 2015.
On June 2, 2015, a WCB medical advisor reviewed the worker's file and responded to questions posed by the WCB case manager. The medical advisor stated:
…[worker] presented with shortness of breath being the chief complaint. As a secondary complaint, there was left-sided pleuritic chest pain. The emergency physician did not describe a relationship between lifting or other workplace activities and the symptoms. [Worker] had reportedly been symptomatic for 1-2 weeks. He reportedly had similar symptoms prompting an emergency department visit 1.5 years earlier.
In the emergency department, investigations including a d-dimer, chest x-ray, ECG and cardiac enzymes were negative.
The discharge diagnosis from the emergency department was chest pain.
The diagnosis to account for the above symptoms would be chest pain not otherwise specified or noncardiac chest pain.
On June 8, 2015, it was confirmed by letter that the worker's claim for a chest injury sustained on or around April 29, 2015 was not accepted as the file information did not establish a relationship between his injury and a workplace accident.
On November 24, 2015, the Worker Advisor Office submitted new information to support that the worker suffered a muscular injury to his left chest wall when lifting panels at work on April 29, 2015. The new information consisted of a May 6, 2015 diagnosis from the family physician and a co-worker's signed statement.
On December 14, 2015, the WCB medical advisor reviewed the new information and commented that the worker was treated by three different healthcare providers at the emergency department and they did not describe a relationship between lifting or other workplace activities in their detailed clinical notes. While a specific diagnosis was never made, the combination of shortness of breath and chest pain rendered a diagnosis of muscle strain improbable. He said a respiratory tract infection would be more likely. The medical advisor also noted that the worker's file contained two different histories that describe symptom onset. The worker's history provided in the emergency department on April 30 was likely more accurate than the history provided on a subsequent date.
On December 15, 2015, the worker was advised that no change would be made to the previous WCB decision based on the WCB medical advisor's opinion that the findings of shortness of breath, productive cough and chest pain render the diagnosis of muscle strain improbable. On January 27, 2016, the worker advisor appealed the decision to Review Office.
On March 16, 2016, Review Office agreed that the claim was not acceptable as there was insufficient evidence to support that the worker sustained an "accident" on April 29, 2015.
In making its decision, Review Office referred to the findings of the worker's treating physician for an examination done on May 6, 2015 and the revised version of the doctor's report that was submitted in November 2015 which noted a diagnosis of "chest wall contusion (muscle strain)." Review Office placed more weight to the April 30, 2015 hospital report, which provided detailed clinical notes from the triage nurse, a treating nurse and a treating physician.
Review Office could not establish a relationship between the worker's need to seek medical treatment at the hospital on April 30, 2015 to the performance of his job duties on April 29, 2015. On April 25, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB Board of Directors.
This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, 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.
Worker's position:
The worker was self-represented at the hearing and presented his position with the assistance of an interpreter. The worker submitted that a number of people had misunderstood his explanations of the injury and that led to his claim being denied. The worker explained his difficulties to the panel and responded to questions from the panel.
The worker also requested his lead hand/co-worker to be a witness at the hearing and to give evidence on his behalf. The lead hand's evidence was affirmed and is summarized as follows:
He works right beside the worker about three feet away.
On April 29, 2015, they were cleaning their work area and moving full sheets of metal that were no longer needed to a different area.
The 4' x 8' sheets weighed about 60 lbs and they loaded them on a cart to move them.
They had moved about 125 pieces of 16 gauge metal by 3 p.m.
They picked up another piece and lifted it out of a rack, when they put it on the cart the worker said ouch and had his arm tucked in, at that point he told the worker to sit down and take it easy, they were close to home time.
At the punch clock the worker told him he had been short of breath during the day.
He didn't see the worker for two days so called him at home, the worker told him that he pulled a muscle that day so he told him to come in to work and fill-in WCB forms.
The workplace is dusty from working with sheet metal and they were exerting themselves, the heavy pieces caused sweating.
He did not see him having any difficulties during the two weeks prior to April 29, 2015.
The worker's evidence was that he got pain in his side, when he inhaled he had pain and the breathing was heavy. He indicated the pain was at the bottom of his rib cage on the left side. He submitted that he felt the pain around 3:15 p.m. and did sit down for the rest of his shift and waited for 4 p.m. That evening at home he ate, had a shower and watched T.V. until he went to bed at 10:00 p.m. The next day he noted it was painful to inhale and exhale so he went to the hospital emergency room. In response to a question of the panel, the worker noted that the emergency room did not have an interpreter for his birth language.
In response to questions from the panel, the worker noted that he did have a prior issue but this was not the same as before. It was a different pain, more heavy and this time it was the rib cage area. The prior time his doctor had told him he needed to lose weight. The worker also submitted that he did not have a cold or cough at the time of the injury. He was off work for 8 days and he had no more issues after he returned to work.
Employer's position:
The employer did not participate in the appeal.
Analysis:
For the worker to be successful in his appeal, the panel must find that the worker suffered an injury that arose out of the work duties and during the course of his employment on April 29, 2015. On a balance of probabilities, we are able to make that finding.
The panel reviewed the worker's incident report when he first filed his WCB claim and compared it to the evidence of the worker and his witness at the hearing. The panel accepts the witness's testimony as it was given spontaneously and he answered questions without hesitation or contradictions. As such, the panel placed significant weight on his evidence as reflective of the events on April 29, 2015.
The panel finds an incident took place on April 29, 2015 that caused an injury to the worker while he was in the course of his employment doing work activity related to his duties as an assembler.
The panel asked many questions trying to gain a fuller understanding of the work, the extent of the injury, the worker's initial symptoms and his conversations with the emergency room doctor and his own family physician. The worker noted his ribs hurt and the material was heavy when he lifted it. He noted that when he was at the hospital, he told them he had pain in his side and they kept calling it chest pain after he told them about his breathing being heavy.
The panel asked the worker to explain his breathing difficulties through the interpreter so they could better understand his meaning of pain and heaviness. It was conveyed that the worker's meaning was: "when he inhaled, it was difficult and painful to breathe in, when he exhaled it was less painful." The worker had surmised that it "was probably muscle, but not bone" type of pain. "Was a sharp pain in my side, not in my chest. The doctor checked the ribs and no broken bones, was just muscle."
The panel reviewed the medical reports from the day after the incident and the following week when seen by the family physician to determine the presence and extent of injury the worker had suffered. The panel places greater weight on the emergency room physician's comments and findings as he had all the test results available to him to form an opinion regarding time loss from work and a prognosis. The physician's discharge diagnosis was "chest pain: active" and he provided the worker with an off work note with the notation "okay to return to work Mon May 4, 2015."
The panel notes that the test results were not available to the family physician who saw him on May 6, 2015, and on the doctor first report to the WCB his clinical findings were noted to be "Mild tender. No sign of fracture. Full ROM." He prescribed Tylenol extra strength and gave the worker a note that he "was advised to stay off work from May 4 to May 11." The panel places less weight on his opinion as there was no diagnosis marked in the appropriate area signifying the physician did not have sufficient clinical findings at that time to offer a current diagnosis on May 6, 2015.
The panel reviewed the evidence as a whole and finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment on April 29, 2015.
The panel finds the worker's claim is acceptable.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerP. Challoner, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker, - Commissioner
Signed at Winnipeg this 29th day of August, 2016