The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny her claim for compensation. A hearing was held on November 28, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 2, 2014, the worker filed a claim with the WCB for injuries to her ribs on the left side and her upper back that she related to an accident occurring on July 25, 2014. The worker described the accident as follows:

I was pulling concrete that day and I had the concrete vibrator which is about 60 - 75 lbs strapped to my body. And my co-worker has the other end, while I serve as the trigger person. Because of miscommunication, he would drag me around, and at the same time the concrete vibrator, vibrating along my hip. The vibrator didn't come with a strap, because it wasn't meant to be strap (sic) to you. But my boss insisted to be (sic) attached to me. So they took 2 straps off from a tool bag, just to make sure the vibrator is strapped to me. And we did this for about 6 hours. I felt a twinge at the back of my shoulder and it just went around to my rib cage but didn't think anything about it. I continued to work and finished the day. The next day, when I woke up, it felt like someone was sitting on my chest. And so I went to…emergency. They admitted me for a week because they didn't know what was wrong initially.

On December 17, 2014, a WCB adjudicator contacted the worker to discuss her claim and the events that occurred on July 25, 2014. The WCB also contacted the accident employer to obtain information regarding their knowledge of the accident and the worker's reporting of an accident.

On January 12, 2015, the worker's claim was referred to the WCB's healthcare branch to obtain an opinion regarding the worker's medical status and its relationship to the July 25, 2014 workplace events. In a response dated January 14, 2015, the medical advisor stated:

1. A specific diagnosis is not identified or verified. All of the investigations were not able to identify a condition that was responsible for the complaints of chest pain. The CT of her abdomen identified [non-compensable conditions]; neither would be likely associated with chest pains as reported by the claimant…

2. As the diagnosis is not clear, I am not currently able to comment on restrictions or her current capabilities…

On January 20, 2015, the worker was advised that her claim for compensation was not acceptable as the WCB was "unable to determine if the pain you were experiencing is something that could have been caused by the duties you perform at work." This decision was based on the findings that the accident employer was not aware of an injury to the worker's chest and the lack of a diagnosis regarding her injury.

On February 3, 2015, the worker's claim was again reviewed by the WCB medical advisor based on new medical information which consisted of hospital and physiotherapy reports. The medical advisor stated, in part, that the possibility of a muscle strain had been suggested. Based on the current medical, the diagnosis seemed unlikely. It was noted that the worker had been away from the workplace for more than 6 months and the symptoms were reported to persist. A muscle strain was predicted to resolve over 2 to 6 weeks, particularly if work activities are not undertaken.

On February 3, 2015, the worker was advised of the WCB's position that a relationship had not been established between her current symptoms and the work she was performing on July 25, 2014.

In September and October 2015, the worker provided the WCB with new information to support that she that suffered injuries at work on July 25, 2014.

On October 27, 2015, the WCB confirmed its earlier decision that the claim for compensation was not acceptable. The decision stated:

…Compensation Services is unable to confirm a workplace accident occurred on July 25, 2014. Compensation Services acknowledges that you were using a concrete vibrator on July 25, 2014 as this has been confirmed with you, your co-workers and your employer. It is unclear when you first specifically reported to your employer and Healthcare Providers that you felt your left sided rib pain was due to using the concrete vibrator. No information regarding using a concrete vibrator being the cause or source of your injury is noted until January 25, 2015 by your physiotherapist…a relationship between the development of your left sided rib pain and an accident arising out of and in the course of your employment cannot be established.

On February 10, 2016, the worker's legal representative appealed the decision to deny the claim to Review Office.

On March 3, 2016, Review Office determined that the worker did not have an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act").

Review Office confirmed that the worker was using a concrete vibrator at work on July 25, 2014 but said there was conflicting information as to the degree of work she was engaged in on that day. There were inconsistencies regarding the reporting of the incident.

Review Office considered co-worker statements pertaining to the events of July 25, 2014 and concluded that the worker did not make complaints on July 25, 2014 about an injury related to her work duties.

Review Office acknowledged that the worker sought medical treatment but found the reports did not provide a description of an incident or injury related to her work as reported to the WCB. It could not establish a causal relationship between the worker's symptoms and the multiple proposed diagnoses to the worker's described mechanism of injury. On May 18, 2016, legal counsel appealed Review Office's decision to the Appeal Commission and a hearing was held on November 28, 2016.

On December 8, 2016, the worker's legal representative requested a copy of a video and photographs that the employer previously provided the Appeal Commission for their review and comment. The requested information was then forwarded to the legal representative for comment and their response is on file dated January 10, 2017. On January 12, 2017, the appeal panel met further to discuss the case and to render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means 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 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;

The worker is appealing the WCB Review Office decision that her claim is not acceptable.

Worker's Position

The worker was represented by legal counsel who provided an oral submission in support of the worker's appeal.  The worker answered questions from her counsel and the panel. The worker also called two witnesses, a co-worker and her father.

The worker's counsel explained that the worker's injury arose from the improper operation of a piece of equipment known as a concrete vibrator.  He advised that the concrete vibrator was strapped to the worker.  He said it was:

"jerry-rigged, or it wasn't intended to be used that way, but it, a couple of Makita straps    were put together to form a one-sided rough harness, and the vibrator was strapped over her shoulder."

Counsel noted that the next day the worker was in discomfort and went to the hospital.  He noted that she had severe pain through her chest on the left side.  She had numerous tests.  In answer to questions the worker advised that:         

• she was "perfectly fine" before the injury 
• she had worked for the employer for about a month
• she did heavy labour and cleaned up after the trades
• she confirmed that she operated the machine portion of the concrete vibrator which included a 100 foot extension power cord which she dragged
• a hose ran off the machine to the vibrator wand which was operated by a co-worker
• she estimated that the weight of the concrete vibrator was 30- 40 lbs, just the machine 15 lbs, the hose 20 lbs.
• the machine had an "on/off switch" which she operated
• she had the machine on her right side, with a strap over her shoulder.  She later moved the machine to her left side and wore it most of the day on the left side.
• she explained that it was strapped on as noted in a photo, which was in the claim file. The strap went over her right shoulder and the machine rested on the side of her left hip bone
• she had bruises on the sides of her hip from carrying the machine
• there were 2 straps held together by 2 metal clips
• the strap crossed over the worker's chest
• she could not remember the metal clips from the straps pressing against her body
• she did not hold the machine but used her right hand to operate the switch
• she was directed by her employer to carry the machine over her shoulder
• she worked from abut 9:00 AM to 1:30 PM
• she took one ten minute break at about 1:00 PM
• the hose on the front was carried by a co-worker.  It was more than a meter in length, up to 7 or 8 feet.   The co-worker controlled where they worked .  The worker commented that:     

Oh, yes, he was pulling me and jerking me forward, backwards, whatever way he decided to go, but didn't tell me, you know.  Two steps forward or two steps back, I just got dragged, or pulled, by the machine.

• the concrete vibrator ran on and off, not continuously
• she felt uncomfortable but did not complain 
• at the end of the shift she drove home
• she woke up in extreme pain at about 7:00 AM the next day which was a Saturday, in the evening a co-worker drove her to the hospital.
• initially, hospital staff thought she might be having a heart attack.  She did not refer to a work injury at that time
• she had numerous diagnostic tests which were negative, she got the results back on August 28
• the respirologist thought her injury was muscular
• she did not make a WCB claim at the time because the employer was her uncle
•  she submitted a claim on December 4

The worker provided information regarding a meeting with her employer and her father after the injury. The worker was provided with light duties for a short period.

A co-worker was called as a witness.  He answered questions regarding his knowledge of the incident.  He estimated that he was working within 10 to 15 feet from the worker on the day of the incident.  He said that he heard the employer order the worker to continue carrying the machine over her shoulder.  He provided information on his perception of whether she was in pain.  He also drove home with the worker and took her to the hospital the next day. 

In answer to a question about how long the concrete vibrator would go on, the worker replied:

Anywhere from a couple minutes to five, maybe five, ten minutes.  I'm not -- I wasn't really paying attention because that wasn't part of my -- but I know it was for a decent, a fair amount of time, because to get the concrete to settle you have to really get the bubbles out of it.

The co-worker also provided details regarding the worksite and the time they worked on that date.

In answer to a question, the co-worker acknowledged seeing bruises on the worker but could not recall for certain if the bruises were on her ribs or hip.  He previously provided the WCB with information about seeing bruises on her ribs.  He thought he saw a large bruise about six inches by two inches round, or oblong on her left rib.  He said he saw the bruises on the evening of the accident and that he thought the bruises were:

"blue, or, some blue, purple and pink.  Like, it was a bruise. There was bruises."

The co-worker disagreed with the information provided by the employer including information regarding the length of the concrete pour and number of pours.

The worker's father also provided information at the hearing.  He said that he was familiar with concrete work and the concrete vibrators.  He said that usually concrete vibrators are carried and used by one person.  Sometimes they are just dragged on the ground but that there is a backpack that can be used to carry them.  He said that it was not appropriate to have the worker carry the machine over her shoulder.  He said the concrete vibrator with hose weighs about 30 lbs. He provided information on the operation of the concrete vibrator.

Regarding the use of the machine by the worker, he said:

She had it strapped on the side of her with a couple of ropes, if you will, and that's why it, resting on her body, it's actually shaking her whole body.

The worker's father also discussed the issue of filing a WCB claim with the employer.  He said the employer was opposed to doing this.

The worker's counsel reviewed the information provided by the employer and submitted that it is not reliable.

With regards to the medical evidence, the worker's counsel noted that the worker presented at the hospital for pain on the right side of her chest.  He noted that the outpatient and emergency report form indicates lower extremity swelling and rib pain were reported as entrance complaints.  A July 27, 2014 form indicates left side chest under armpit stabbing.  He noted that the diagnosis provided was pleurisy left.  He said that pleurisy is a medical condition of a chest pain or a musculoskeletal pain.  A document dated July 21, 2014 reports a diagnosis of pleuritic CP.  He also noted a July 2, 2015, report from a physiotherapist.  His impression, indicated "my impression is that of chronic thoracic pain, intercostal strain."

The worker's counsel noted there was no intervening event after the use of the concrete vibrator. There was no pre-existing condition.

The worker's counsel submitted that:

The balance of probabilities, it seems that the most reasonable thing to conclude is that the vibrator led directly to an injury upon [worker's] body, which is why she went to the hospital.

In answer to a question about the cause of the injury, the worker replied that she thinks the cause of her injury was both the vibration and the yanking of the hose and machine.

The worker advised that near the end of 2015 she began to see a pain specialist. The physician initially gave the worker injections into the muscles between her ribs.  She said that he stopped this because in the long term it wasn't working anymore.  The worker provided a copy of a letter dated September 23, 2015 from the treating pain specialist indicating a diagnosis of myofascial pain of the chest wall and treatment of trigger points.

Regarding reference in the file to the worker's initial complaints of a cough and chest pain, the worker said that she gave this information:

Because they, like I said, I was scared and I'm being told that -- because they're asking me questions, but they're already leaning towards it being a heart attack or breathing.

She also explained there was a communication problem with the intern in Winnipeg regarding her injury.

The worker advised that she saw a physician in Winnipeg who ordered a bone scan.  She was not aware that he provided a diagnosis of costochondritis.  She has not seen this physician since she had the bone scan.

Subsequent to the adjournment of the oral hearing, the worker's counsel was granted access to the video which the employer provided.  The worker's counsel subsequently provided a further submission.

Employer's Position

The employer did not participate in the appeal although he had previously opposed acceptance of the claim.

Analysis

The worker is appealing the WCB Review Office decision that her claim is not acceptable.  For the worker's appeal to be approved, the panel must find that the worker sustained a personal injury by accident arising out of and in the course of her employment within the meaning of subsection 1(1) of the Act.  On a balance of probabilities, we are not able to make this finding.

The panel finds that the worker's claim is not acceptable.

For the most part, the panel accepts the worker's evidence over that provided by the employer regarding the events of July 25, 2014.  The panel makes the following findings of fact:

• the worker was employed by the employer
• the worker was performing workplace duties at a construction site pursuant to her employment with the employer
• the worker was assigned her duties by the employer
• the worker's duties on this date, July 25, 2014, involved, in part, carrying/holding a concrete vibrator or agitator
• the concrete vibrator weighed approximately 40 lbs.  It consisted of an electric powered motor unit (machine) weighing about 12 pounds and a hose with a "pencil" on the front weighing approximately 22 pounds
• the hose was approximately 8 feet in length and was carried by a co-worker who inserted it into the concrete and instructed the worker on turning the machine on and off
• worker carried the machine for approximately 3 to 5 hours but removed it between concrete pours.
• the machine was on intermittently, and did not vibrate for the full period when it was carried by the worker.
• the strap was initially strapped over her left shoulder and rested against her right hip
• the machine was subsequently moved to her left side with the strap over her right shoulder, in this position the machine rested against her left hip
• the machine was on her left side for the majority of time that she worked on that day
• the use of the concrete vibrator in this manner was unusual; it is usually operated by one person and can be placed upon the ground
• the worker would turn the machine off and on upon instructions from the co-worker
• the worker had bruises on her hips from the operation of the concrete vibrator

With respect to the evidence provided by the co-worker at the hearing, the panel finds the witness lacked credibility. The panel notes there were significant contradictions in his various statements on the claim file and his evidence at the hearing. 

The panel has considered the worker's position that carrying and operating the concrete vibrator caused the left sided injury and in particular an injury to her left chest and ribs.  The panel finds, on a balance of probabilities, the evidence does not establish that the worker sustained an accident arising out of and in the course of her employment on July 25, 2014.

The worker advised that her injury was caused by the yanking of the concrete vibrator by the co-worker who controlled the hose on the front of the concrete vibrator and/or the vibrating of the machine while it was agitating the concrete. 

The panel has considered the mechanism of injury, described and demonstrated by the worker at the hearing.  The panel finds that the machine did not have significant contact with the worker's left rib cage.  The panel notes the strap was draped over the worker's right shoulder and across her right chest and back.  As worn, the panel finds no plausible explanation for how the straps would contact her left rib cage and particularly the area of her rib cage where she indicated the injury is based, under her left armpit.   More specifically, the panel finds that the strap from the right shoulder to the left hip would have crossed the worker's mid-chest area, well away from the worker's left chest/rib area.  Accordingly, there is no basis for the vibration of the machine to be transmitted through the strap, to the worker's left chest/rib area.  Further, if the injury was caused by yanking it would be expected to impact the worker's neck and shoulder.  If it were caused by vibrating, it would be expected to bother her neck, shoulder and hip, not the rib cage.

The panel has also reviewed the medical evidence to determine if there is a medical diagnosis consistent with a work injury.  The worker has stated that her hips were bruised; however, the

worker's claim is for a rib injury and notes that the worker did not relate her medical issues to her job duties, when providing histories to the many healthcare practitioners who examined her.  The panel is unable to connect the placement of the machine against her hips and the resulting vibration, to a left rib injury.  The substantial focus of the early medical evidence is on the left chest/left ribs/left armpit pain variously described as pleuritic or musculoskeletal or myofascial in origin or associated with coughing and wheezing.  An acute physical injury was not queried at the outset.  In the panel's view, the location and described symptoms are not associated with the worker's job duties on July 25.

The panel attaches little weight to the medical evidence from the physicians and other treating healthcare professionals who saw the worker months after the alleged injury.  These opinions are based upon the worker's description of the incident which differs from our findings, as noted above. 

The panel has reviewed the medical evidence on file against our findings as to how the equipment was worn and used, and what was reported by the worker to the various healthcare practitioners who saw the worker near the dates of the accident. 

The panel notes that the early medical information does not refer to any workplace involvement or cause.  The panel attaches significant weight to the following reports and medical documentation:

• July 26, 2014 - Triage Record-  indicates worker complained of cough x 5/7, wheezing, nasal congestion, pain to rib cage with coughing
• July 27, 2014 - Adult Assessment Data Base- indicates sharp stabbing pain left side chest under armpit on front chest  
• July 27, 2014 - Physician's Progress Notes - Painful breathing since yesterday, started 3 days ago after a run, cough first thing in the morning.  Then gradually got worse to the point that she became SOB (short of breath) last night as she couldn't take deep breath
• July 31, 2014 - Hospital Report- sudden onset of pleuritic chest pain
• August 29, 2014 respirologist report - pain is getting better and more related to the movement or coughing or deep breathing.  We think the origin of her pain is musculoskeletal pain  

As already noted, there is no reference to workplace duties or a workplace injury in any of these reports.  The panel would expect the worker to identify the workplace incident when she attended the hospital given her evidence the duties of carrying the concrete vibrator had caused her significant pain. 

The panel finds, on a balance of probabilities, that the worker's left rib injury did not arise out of and in the course of her employment.  The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of January, 2017