The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on February 9, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

Background

The worker filed a claim with the WCB for a middle back injury that occurred at work on September 17, 2015. The worker described the incident as follows:

At work, I perform various cleaning duties. Yesterday at work, I noticed that when vacuuming, I feel pain due to pushing and pulling. I was able to do my work last week, but not this week. The pain got worse over the day yesterday. I did not do anything specific. I vacuum most days. There is wiping and mopping to be done as well. The vacuuming is more so what bothers my middle back.

The Employer's Accident Report confirmed that the worker injured her middle back on September 17, 2015 while vacuuming.

On September 24, 2015, a WCB adjudicator called the worker to discuss her claim. The worker noted that she was having soreness in the middle of her back and had been going to see the chiropractor every day that week. She had been off work since September 17, 2015. The worker said that prior to the incident on September 17, she got back pain whenever she worked. She believed that her back pain was a recurrence of her November 2014 WCB injury as it was in the exact same anatomical area. The worker said there was no specific incident that affected her back on September 17. Her back pain just got worse as she worked her regular duties.

In a subsequent telephone conversation with the adjudicator on September 29, 2015, the worker noted that the pain was different this time and moved to her upper back.

A WCB chiropractic consultant reviewed the file on February 1, 2016. He stated:

In my opinion, given the persistence of her problem in the period of November 2014 to the date of examination, [September 2 2015], it is not reasonable to conclude that the problems resolved in the period from September 2 2015 to the date of the new injury. It is more probable that the claimant's condition as of September 17 2015 is a continuation of her condition as it was during examination of September 2015, and manifested the pattern of increased symptoms with activity. In other words, the claimant's condition as of September 17 2015 would not be considered a distinct injury, but rather a continuation of her longstanding pattern of activity intolerance.

Based on the chiropractic consultant's February 1, 2016 opinion, the worker was advised by the WCB on February 3, 2016 that a relationship had not been established between her work duties and the symptoms she experienced on September 17, 2015. Therefore, no responsibility could be accepted for her claim. On February 29, 2016, the worker appealed the decision to Review Office.

On May 16, 2016, the employer's representative submitted to Review Office that the worker's current complaints were not due to her work activities on September 17, 2015 or to her 2014 claim. As such, there was no reason to reverse the adjudicator's decision that the claim was not acceptable.

On May 30, 2016, Review Office confirmed that the claim was not acceptable. Review Office noted that Compensation Services had just ended the worker's 2014 claim when this claim was filed. The 2014 claim was for the same general area of the worker's body and occurred under similar circumstances. The worker initially indicated she felt the new incident and difficulties were part of her 2014 claim. This was investigated, and Compensation Services provided a ruling that her difficulties from the September 17, 2015 workplace incident were not related to her 2014 claim. A new claim was then established after the worker appealed the decision to deny a recurrence on the 2014 claim and her claim was returned to Compensation Services by Review Office.

Review Office stated that it accepted the WCB chiropractic consultant's opinion dated February 1, 2016, and found that the claim was not acceptable. On August 16, 2016, the worker appealed Review Office's decision 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.

Subsection 4(1) of the Act provides that 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful 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 was represented by a union representative, who assisted her in making a presentation to the panel. The worker provided a written submission with supporting documentation in advance of the hearing, and responded to questions from her representative and the panel at the hearing.

The worker's position was that this claim should be accepted as a new claim arising out of and in the course of her employment duties. The worker's representative noted that the worker had a previous compensable mid-back injury as a result of vacuuming in November 2014. It was submitted that she had an extended recovery, but eventually got back to work. She was able to manage at that time, but had not fully recovered, and was therefore susceptible to further injury.

The worker's representative submitted that the July 11, 2016 MRI which was provided in advance of the hearing showed some changes in the worker's spine and ribs. His position was that there was likely an underlying condition which was further aggravated by the work she did when she went back to work. When she went back to work, she not only re-injured her mid-back, but also experienced symptoms involving her upper back, neck and right shoulder. These additional symptoms prompted the filing of a new claim. It was their position that the new claim should be accepted because the muscular injury that the worker sustained arose out of and in the course of her employment duties while vacuuming.

In response to questions from her representative, the worker reviewed the history of her employment with the employer, the incident in November 2014, her injuries and treatment following that incident and her subsequent return to work. The worker indicated that her pain never went away after November 2014. She went on to describe the incident on September 17, 2015, her symptoms and the various treatments she received and the pain she experienced following that incident. The worker said that the treatments she was receiving after September 17 differed in that they were higher up and more in the right shoulder area. She said that she is back to work now, where she is being accommodated. She stated that she is not 100% and is no longer able to do cleaning or vacuuming. The worker's representative submitted that the worker's evidence supported that she had a long-term chronic pain issue which was likely aggravated by the work she was doing on September 17, 2015.

The worker's representative urged the panel to focus on the chiropractor's assessment on September 15, 2015, where there was no indication of any low back, mid back, upper back or shoulder complaints. The representative noted that it was unusual to have that kind of baseline just a couple of days before an accident. He submitted that the accident was a progression of the worker's underlying pain condition. The walk-in clinic doctor who saw the worker on the day of the accident reported low back pain, but there was no indication that the worker had low back pain at all a couple of days earlier. The next day, the treating chiropractor reported shoulder, neck and upper back pain, which again was not apparent just days before. This pain developed while the worker was doing her vacuuming duties on September 17, 2015, and she consistently attributed the pain and the development of the pain to the work that she was doing.

The worker's representative submitted that the evidence is what is important in this instance, and the panel can accept that evidence and find that the claim is acceptable on that basis.

Employer's Position

The employer was represented by an advocate. The employer's position was that the worker's September 17, 2015 claim is not acceptable.

The employer's advocate asked that the panel attach considerable weight to the WCB chiropractic consultant's call-in examination on September 2, 2015, just two weeks prior to the date of the claimed injury. The consultant examined the worker at that time and found that she had recovered from the effects of the thoracic costovertebral sprain/strain injury from November 2014. The consultant's diagnosis was "non-specific, non-radicular thoracic spine pain," unaccountable in relation to the November 2014 workplace injury. In the employer's submission, this opinion was very reasonable, given the claimed mechanism of injury and the lack of objective medical findings.

It was noted that on September 17, 2015 the worker was not doing anything unusual, just her regular vacuuming duties, when she felt pain. The worker saw a doctor that day and a diagnosis of low back pain, soft tissue injury was made. There were minimal objective findings. In a September 28, 2015 report, the worker's family physician indicated that this was the same area of injury as the prior claim, and that the worker had chronic complaints since the fall of 2014.

The advocate submitted that the January 25, 2016 letter from the treating chiropractor, which indicated that there was pain from the right flank, from the shoulder to the lower thoracic area, seemed to be at odds with the other doctors' opinions. She noted that there seemed to be a discrepancy as to where exactly the areas of pain were.

However, there were very clear indications from the worker herself in a September 24, 2015 conversation with the adjudicator, that the pain was the same as for the November 2014 injury, and that this was a recurrence of that injury. It was not until September 29, when it was indicated the claim would probably not be accepted as a recurrence, that the worker put in a new claim, indicating the pain was different this time, that it had moved up to her upper back as well.

The advocate urged the panel to also accept the WCB chiropractic consultant's February 1, 2016 opinion, where the consultant confirmed that the area and mechanism of injury were the same as the first claim, and wrote that the worker's condition as of September 17, 2015 "would not be considered a distinct injury, but rather, a continuation of her longstanding pattern of activity intolerance."

The advocate did not agree that the underlying condition was aggravated by a workplace injury in September 2015, and noted that there was no evidence of this. There were no neurological findings on examination in September 2015, and no indication of anything other than soft tissue strain complaints.

The worker recounted that her back pain never went away after the first incident in 2014. Even with treatment, therefore, her pain persisted and seemed to be primarily to the low back. This was not the area that was reported in the September 2015 workplace injury. The advocate noted that the worker has complaints to many different parts of the anatomy, but the employer does not see these as being related to vacuuming on September 17, 2015.

The advocate submitted that based on the information at the hearing, the lack of a traumatic workplace injury and the absence of objective medical findings of disability, the claim is not acceptable.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to succeed, the panel must find that the worker sustained a new and different injury arising out of and in the course of her employment on September 17, 2015. The panel is able to make that finding. More particularly, the panel finds that the worker suffered an injury to her right shoulder and nearby structures or muscles as a result of her employment on September 17, 2015.

The worker attended a call-in examination with the WCB chiropractic consultant on September 2, 2015. The notes of that examination are essentially silent with respect to problems with respect to the worker's right shoulder or right upper body.

The panel places significant weight on the chart notes and January 25, 2016 narrative report of the treating chiropractor of his treatment of the worker before and after September 17, 2015. With respect to his visit on September 15, 2015, the treating chiropractor talked about problems on the worker's left side and adjustment on the right dorsal region, as follows:

Visit notes for 15 September 2015 detailing diagnostics to the left with examinations of abnormal motion, taut musculo-skeletal elements, etc. as well as static and motion palpation analyses. To the right is recorded chiropractic adjustive procedure to the 11th dorsal region. Subjectively [worker] reported satisfactory progress and outcome.

Again, there is no reference to any problems at that time with respect to the worker's right shoulder or the upper right side of her body.

However, with respect to his visit with the worker three days later, on September 18, 2015, the treating chiropractor indicated that the worker reported having injured herself the previous day while vacuuming for a client, and referred entirely to problems in the right shoulder and upper right side, as follows:

She complained of pain to the right flank from the shoulder to the lower thoracic area. She reported pain to the right shoulder with muscle spasming in the shoulder and right flank area. She presented with an antalgic posture, and on palpation revealed edema over the medial margin of the scapula and lateral to the spinous processes of T3 to T11. Spasming was palpated along the insertions of the serratus and rhomboid musculature. Shoulder range of motion was deficient in both abduction and adduction.

The diagnoses provided by the treating chiropractor on September 18 were subluxation to the right costovertebral joints 3-11 and subluxation to the right shoulder.

In his narrative report, the treating chiropractor went on to state that visit notes for September 18, 2015 to January 20, 2016 recorded observation and analysis as well as chiropractic adjustive care directed to the right shoulder and right costovertebral joints 3 through 11.

At the hearing, the worker also described the treatments she was receiving after September 17, 2015 as being different, in that they were higher up and more in the right shoulder area.

In light of the foregoing, and after reviewing all of the evidence, the panel finds, on a balance of probabilities, that the worker suffered an injury to her right shoulder and upper back area as a result of the September 17, 2015 accident.

The panel also places weight on the October 21, 2015 opinion of the WCB chiropractic consultant, who wrote:

The worker has provided different descriptions of the location of her current problems. Specifically, she has described pain that is the same as before (accepted as lower thoracic spine in location), and recently as upper back pain. The rationale for opinions is dependent on the current location of pain, and so I have broken my opinion into two possibilities:

If the location of pain is at the lower thoracic spine/flank: The claimant was examined by me on September 5 2015 and there were few objective findings. As noted in that report, the diagnosis related to the compensable injury of November 6 2014 carries an anticipated recovery period of 4-6 weeks. The mechanism of injury (turning while vacuuming) involved mild forces and would be associated with a mild soft tissue injury and a more favourable diagnosis.

Any diagnosis associated with this compensable injury would have long since recovered considering the time that has elapsed (11 months). On balance, in my opinion, there is no relationship between any current lower thoracic or right flank pain and the effects of the compensable injury of November 6, 2014.

If the location of pain is at the upper back: The claimant has recently indicated that the location of her current problem is the upper back. This is a different region that (sic) the region involved in the compensable injury, and so would not probably be related to the compensable injury.

Given the panel's finding that the worker suffered an injury to her right shoulder and upper back area, the second possibility as outlined in the final paragraph in the October 21, 2015 opinion would apply.

The panel recognizes that the WCB chiropractic consultant subsequently opined, on February 1, 2016, that "the claimant's condition as of September 17, 2015 would not be considered a distinct injury, but rather a continuation of her longstanding pattern of activity intolerance." The panel notes that the opinion references the September 2, 2015 call-in examination, which was prior to the events of September 17 and, as indicated above, did not involve right shoulder or upper body problems. Given our finding on the issue before us, the panel accords no weight to the chiropractic consultant's February 1, 2016 opinion.

The panel notes that while the worker was complaining of ongoing issues with her lower back, such issues were not apparent when the worker attended for treatment on September 18, 2015, and are not part of the claim that is before us.

In her written submission dated January 14, 2017 and supporting documentation and at the hearing, the work proposed a number of other different injuries or problems as being related to her September 17, 2015 workplace accident, including problems with her glutes, groin, hip, piriformis syndrome, sciatic pain, quadratus lumborum muscle tightness and abdominal pain. Based on the evidence before us, the panel is unable to find medical evidence at or around September 17, 2015 which would support a causal relationship between the accident on that date and any of these conditions. The panel therefore finds that these conditions did not arise out of or in the course of the worker's employment on September 17, 2015.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury to her right shoulder and nearby structures or muscles as a result of her employment on September 17, 2015. The claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of April, 2017