The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her September 10, 2012 claim and that her claim for injury occurring in January 2013 was not acceptable. A hearing was held on July 27, 2016, to consider the worker's appeals.

Issue

Accident Date: September 10, 2012:

Whether or not the worker is entitled to wage loss benefits from January 30, 2013 to March 25, 2013; and

Whether or not the worker is entitled to wage loss and medical aid benefits after March 25, 2013.

Accident Date: January 2, 2013:

Whether or not the claim is acceptable.

Decision

Accident Date: September 10, 2012:

The worker is not entitled to wage loss benefits from January 30, 2013 to March 25, 2013; and

The worker is not entitled to wage loss and medical aid benefits after March 25, 2013.

Accident Date: January 2, 2013:

The claim is not acceptable.

Background

Accident date September 10, 2012:

The employer filed an Accident Report with the WCB on September 10, 2012, stating "Paralyzed patient fell off unlocked stretcher. 2 EMS were at head and I came in to help lift patient to stretcher. Pain to neck, lower back and shoulder blade area."

The worker filed an Incident Report on October 23, 2012, stating "A patient was being transferred from the bed to the stretcher by EMS personnel and another nurse…she was on a sliding sheet…the brakes were not on the stretcher and the patient began to slide to the floor…When I saw what was going on I went over to assist. I went to the patient's side and I grabbed her upper thighs in a circular motion and I helped lift her onto the stretcher. The patient weighed approximately 190 pounds. I had initial pains on the day of the accident. The next morning I woke up without pain and then within a week or two I started to get tension headaches and tension in the neck."

The worker advised that she delayed seeking medical treatment as she did not think the pains were related as she was experiencing stress due to the workplace being organized. She did not mention her ongoing discomfort to coworkers but she felt that her headaches and neck tension were all related back to the initial incident.

On October 18, 2012, a physiotherapist reported clinical findings including pain of 6 out of 10, and limitations of neck range of motion rotation right 25% and left 50% with 75% flexion and extension, limitations to the hip and right shoulder. The physiotherapist diagnosis was "R C/S neck min strain with R and L C sp Z jt sprain." The therapist noted that the worker had continued to work full duties.

On October 26, 2012, a WCB adjudicator contacted the worker to obtain additional information related to the accident and the nature of her ongoing symptoms. She stated she is a supervisor as a clinical resource nurse and is normally doing all paperwork; her job is non-physical and works independently. She noted she was able to continue to work and, as she is the boss, did not feel comfortable complaining about her difficulties. After a while it became difficult to hold her coffee cup and by Thanksgiving she could not lift a pot of potatoes due to a weak feeling in her right arm. She also noticed intermittent numbness in her cheeks to the back of her ears.

A Doctor First Report dated October 24, 2012, stated a diagnosis of "to rule out cervical spine injury" with complaints of right shoulder pain with some weakness in the right upper extremity and right thumb. The report also noted neck pain, right shoulder and scapular area. The clinical findings were "multiple tender area R scapular, trapezius, SCH, can rotate neck normally with mild midline tenderness. No parasthesias, sl weakness of right hand grip, DTRs ++, cranial N." Sent for X-ray, Physio, Rx Voltaren and muscle relaxants.

An October 26, 2012, x-ray of the cervical spine showed mild disc space narrowing at C4-5 and mild to moderate narrowing at C5-6. Posterior osteophyte formation at these levels.

The family physician submitted a report for a visit Nov 23, 2012, noting the worker reported pain in the posterior neck radiating to the right thumb. Clinical findings were "Normal c-spine ROM all directions. Tenderness of posterior, No weakness, norm neuropathic deficit Trapezius." Treatment - to continue physio.

On February 13, 2013, the worker advised the WCB that she "picked up nursing shifts on Jan. 2, 3, 4, 13, and 20^th - and they were 12 hour shifts. After doing this she had headaches every day. Her right thumb and index finger are numb and the left thumb is also numb now, but not as bad as the right."

The WCB obtained x-ray, MRI and nerve conduction study results as well as reports from the treating physicians and physiotherapist. On March 21, 2013, a WCB physical medicine consultant ("physiatrist") reviewed the information and provided a medical opinion to the adjudicator regarding the diagnosis related to the September 10, 2012, work injury.

On March 25, 2013, the worker was advised that the WCB was unable to relate her current symptoms to the compensable injury of September 10, 2012. The adjudicator's decision was based on EMG findings dated March 6, 2013, MRI findings dated March 7, 2013, and the following comments made by the WCB physiatrist consultant:

The available medical file history as summarized below is not consistent with any significant physical or pathoanatomical diagnosis or injury to have been received in this incident.

…September 10, 2012, [worker] was working her usual work duties as a clinical resource nurse, when she ran over to assist a transfer of a paralyzed patient, weight 190 pounds, who was sliding off a stretcher. She held onto the patient's legs, which she cradled under her arms. She held this position for only about 30 seconds. After this she felt some neck, shoulder area and low back pain. She continued her duties and the next morning had no symptoms. In one to two weeks she began to experience increasing symptoms; tension headaches and tension in her neck. About one month later she began to have radiating symptoms from the neck to her right arm and hands, and with numbness of the index finger and weakness of the right hand…the MRI of the neck identified only multilevel degenerative changes present and no evidence for any nerve compression. The NCS/EMG suggested the presence of chronic right sided C7 nerve involvement without any evidence of acute or ongoing nerve injury.

In December 2013 and May 2014, the WCB was asked to reconsider the March 25, 2013 decision based on medical information from a sports medicine specialist and a pain management specialist. The specialists reported diagnoses of cervical, radicular and myofascial pain as well as facetogenic pain related to her C7-T1 facet on the right side and also the C4-5 facet on the right.

In December 2013 and July 2014, the WCB physiatrist opined that the claim history would not support any significant trauma was experienced to have resulted in any significant physical or musculoskeletal diagnosis. Also, the worker reported no symptoms following the claimed incident of September 10, 2012, and there were no neurological symptoms reported until one month following. Therefore, the worker's current presentation was not medically accounted for in relation to the reported incident.

The worker was advised on January 29, 2014 and July 3, 2014 that no change could be made to the March 25, 2013 decision based on the medical opinions outlined by the WCB physiatrist consultant.

In a submission dated and January 6, 2015, the Worker Advisor Office contended that the worker was entitled to wage loss benefits as of January 30, 2013, and both wage loss and medical aid benefits after March 25, 2013. The worker advisor submitted that the worker had not recovered and was still receiving medical treatment for her compensable neck injury which involved her C7 facet joint.

On January 14, 2015, the WCB physiatrist reiterated that the worker did not report any symptoms the morning following the September 10, 2012, accident. One month later, there was a report of new radiating symptoms from the neck into her right arm that could not be rationally ascribed as related to the work incident of a month prior nor to any work physical demands during that period. There was no file evidence of any subsequent significant work injuries or of any subsequent work physical demand that would be expected to cause a facetogenic or neurogenic injury/issue of any sort.

On January 14, 2015, the worker was advised by the WCB that her claim was accepted for an injury diagnosed as a neck strain and that there was no basis for accepting that a facetogenic or neurogenic injury had resulted from the workplace accident of September 10, 2012.

In a further decision dated January 26, 2015, the worker was advised that the workplace activities she performed on January 2, 3, 4, 13 and 20, 2013 did not constitute a secondary accident or a continuation of her neck strain injury from September 10, 2012, resulting in a loss of earning capacity.

On February 3, 2015, the worker advisor appealed the adjudicator's decision to Review Office. In a submission dated February 18, 2015, the employer's representative stated they agreed with the adjudicator's decision to end responsibility for the claim.

On March 30, 2015, Review Office accepted and placed weight on the WCB medical opinions and concluded that the worker suffered a strain from the September 10, 2012 accident and that the worker's subsequent symptoms in her neck, right arm, hand and index finger were not related. Therefore the worker was not entitled to wage loss and medical aid benefits beyond September 10, 2012.

Review Office suggested that if the worker contended that her current difficulties are related to her change in work duties, she should submit a separate claim to the WCB for this purpose.

Accident date January 2, 2013:

The Worker Incident Report stated:

Extra duties after January 1, 2013 aggravated existing injury sustained September 10, 2012. Cumulatively these extra task and hours of work aggravated this injury leaving me unable to work by the end of January 2013. My regular duties are a majority of clerical, supervisory like task and liaising with other health professionals and families. The extra shifts worked were 12 hours verses 8 hours. I was tasked with bed side nursing duties - lifting, pushing, pulling, treatment room and ER nursing. Treatments superscribed (sic) by my doctor were ineffective. Pain became constant and unbearable.

The areas of injuries were neck, right scapular, trapezius, shoulder, elbow, forearm down to 1 & 2 digit right hand.

File records show that the WCB contacted the employer to verify the worker's work schedule between the period December 2012 through to the end of January 2013. The WCB also obtained medical reports pertaining to the worker's treatment she received for her injuries.

In a decision dated July 21, 2015, the worker was advised that the WCB was unable to accept responsibility for her claim as there was no medical or other evidence that she sustained an injury which arose out of and in the course of her employment in early January 2013.

In submissions of August 19, 2015, and September 2, 2015, the Worker Advisor Office appealed the July 21 decision to Review Office. The worker advisor submitted that the claim was acceptable as the evidence supported the worker "either sustained a new and independent injury, or a compensable aggravation of a pre-existing condition resulting in her removal from work, which is connected to both a change in work duties as well as a confirmed, significant increase in work hours."

On October 8, 2015, the employer's representative outlined the view that there was "no new substantial medical information with which to establish that a new accident or a new injury has occurred. As such, the circumstances of this claim do not meet the definition of an accident under the Workers Compensation Act…"

On October 22, 2015, Review Office determined that the claim was not acceptable as it was unable to find that the worker suffered a work injury in relation to the work duties she performed in January 2013. Review Office noted that no report of injury was made with respect to the worker experiencing difficulties as a result of the physical demands of her employment in January 2013. Review Office reviewed x-rays taken in October 2012 and MRI results dated March 2013 and concluded that the worker had a pre-existing condition in her cervical spine and that it was not caused or structurally altered as a result of the work duties performed in January 2013. Review Office could not account for the March 2013 neurologist's findings of "a chronic axonal lesion best localizing to the right C7 nerve root" in relation to the general work duties performed by the worker.

In March 2016, the worker advisor appealed the Review Office's decisions on both the worker's claims to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's 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. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's position:

The worker was represented by a worker advisor at the hearing and the worker participated by teleconference. The worker advisor made a written submission on the worker's behalf and asked the panel to take into account the prior submissions made to the WCB. The worker answered questions from the panel in a limited capacity, as she advised that her memory from the events of 2012 and 2013 were impaired from the medications she had been taking since that time. The worker acknowledged that the accident descriptions, mechanism of injury and various adjudicators' notes recorded when she filed the claim would be the most accurate.

It was submitted that the worker sustained the WCB accepted diagnosis of a neck strain but the accident also caused a right-sided C7-T1 facet injury, as noted by the treating pain management specialist, which continued to be treated well after March 25, 2013. The pain management specialist made the diagnosis on the mechanism of injury outlined in the documents supplied to him. This included the March 2015 Review Office decision, the initial physiotherapy assessment, the first two doctor reports from the file, and the findings of his own examination.

It was the worker's position that her compensable neck strain was clinically aggravated in January 2013 while performing nursing duties. The worker had worked on a number of 12 hour shifts as opposed to her typical 8 hour shifts and observed a decreased cervical spine range of motion, tenderness and persistent headaches. This evidence confirms a material change had occurred in her condition. It was submitted that the evidence confirms that the later claim of January 2013 is acceptable.

The worker advisor concluded that the worker did have a specific injury in 2012 and was not recovered by January 2013 when her increase in job duties caused a non-specific injury to her neck area. It was noted that as the WCB had determined that the January issue had not been adjudicated, the worker later filed a new claim for the January 2013 aggravation which should be accepted by the panel.

Employer's position:

The employer was represented by an advocate who made a written submission to the panel. It was the employer's position that the worker sustained only a neck strain injury as a result of the September 10, 2012 accident. It was submitted that none of the external medical reports substantiate the major delay in the onset of symptoms.

It was submitted that the evidence on file indicates the injury on September 10, 2012 was minor in nature and there was no symptoms during the first month and no related disability. The advocate noted that they agree with the WCB's physiatry consultant's opinion that the worker had recovered early on in the claim.

It was submitted that the worker had non-compensable medical issues that are responsible for the ongoing issues after September 10, 2012. The advocate requested the panel place more weight on the opinion of the WCB medical consultant who had reviewed all the subsequent specialist reports submitted after the claim had been ended.

With respect to the January 2013 claim that had been denied, it was the employer's position that this should be denied by the panel as no accident occurred that meets the definition of accident in the Act. It was submitted that there was no evidence of injury onset from a non-specific source to relate an injury from the worker's duties in general.

In conclusion, it was submitted that this claim was essentially a re-adjudication of the older 2012 claim without a new intervening event.

Analysis:

There are two claims before the panel and we will deal with each claim separately. For the worker to be successful in her appeals, the panel must find, on a balance of probabilities, that following her September 2012 injury she continued to have a loss of earning capacity and required medical treatment and/or that the worker suffered a new injury in January 2013 that caused her to suffer a loss of earning capacity and required her to seek medical treatment. For the reasons that follow, we are unable to make those findings.

The panel directed questions to the worker at the hearing requesting the worker to respond only to those that she could give a definite answer to. In respect of the worker's current condition as of the hearing date, the worker noted that she still has the headaches, they have been constant and occur a few times a month. None of her treating practitioners have talked about or identified where they are coming from. They are migraine type headaches that worsened since the injury; prior to that she used to get one or two a year.

Accident date of September 10, 2012:

In respect to the injury of September 10, 2012, the worker remembers actually holding and lifting the patient and some initial pain but doesn't remember beyond that specific memory. The worker noted that she agrees with the notes recorded on the Worker Incident Reports that:

I had initial pains on the day of the accident. The next morning I woke up without pain and then within a week or two I started to get tension headaches and tension in the neck.

…

she delayed seeking medical as she didn't think the pains were related. [Worker] just had occasional tension headache and neck discomfort. She didn't think the symptoms were related because of the stress at work…

With respect to the mechanism of injury and her report of symptoms, the worker affirmed that the worker incident report would be an accurate reflection of the injury.

The panel finds the September 10, 2012 incident was minor in nature, and accepts and adopts the WCB physiatrist expressed opinion that was based on review of all the medical evidence and reports in the file that:

…the worker did not report any symptoms the morning following the September 10 accident. One month later, there was a report of new radiating symptoms from the neck into her right arm that cannot be rationally ascribed as related to the work incident of a month prior nor to any work physical demands during that period…there was no file evidence of any subsequent significant work injuries or of any subsequent work physical demand that would be expected to cause a facetogenic or neurogenic injury/issue of any sort.

The panel notes that there is no evidence to explain the gap in seeking treatment from September 10, 2012 until she attended physiotherapy on October 18, 2012. We further note that there was no diagnoses provided by any treating health care provider to explain this gap of late onset symptomology.

The panel finds that the worker did not have a significant injury from the September 10, 2012 incident that had resolved within a short time and did not result in time loss or need for medical treatment beyond the day of accident September 10, 2012.

Accident date January 2, 2013:

The worker advised at the hearing that she could not recall accurately her actual duties during her extra 12 hour shifts or how many patients were in the facility during the month of January 2013. She did provide an outline of the facility and the job duties of all staff in general.

The worker explained that the facility was a rural hospital/health centre. She recalls:

• they had 10 beds with an emergency department. The beds were 90% full.

• The emergency area was curtailed at that time and they only did triage.

• Some of the patients were also waiting for placement in a facility that provided palliative care to patients.

• There were 3 workers with a health care aide and they worked as a team.

• The health care aide performed the hygiene and they all assisted with lifting.

The worker's evidence that her specific duties at that time were directing patient care, giving medications, some hygiene, lifting with the assistance of mechanical lifts, tending to emergencies and doing necessary paperwork. She noted that most of the emergency area work was on the weekends and she only worked Monday to Friday (with the exception of the noted five extra shifts of which January 13 and 20 were Sundays while the other three were Wednesday to Friday.

The panel carefully reviewed the worker's evidence and statements on the claim file with particular attention to the medical reports provided at that time on the 2012 claim. The panel was unable to find any mention of a specific incident or acute change in symptoms that would correspond to a new injury at work. The panel notes that there was no report of new issues to the treatment providers and no evidence of a worsening of symptoms in their reports.

The panel finds that the duties the worker described did not cause an acute injury or an aggravation of a pre-existing condition during the month of January 2013.

Based on the foregoing analysis of the evidence and the testimony of the worker, the panel finds, on a balance of probabilities, that:

• the worker is not entitled to wage loss benefits from January 30, 2013 to March 25, 2013, and,

• the worker is not entitled to wage loss and medical aid benefits after March 25, 2013, and,

• the worker's claim for an accident date of January 2, 2013 is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 23rd day of August, 2016