Decision #73/17 - Type: Workers Compensation
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 May 3, 2017 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a claim with the WCB on June 26, 2009 for a right shoulder and neck injury that occurred at work on May 4, 2009. The worker reported that he was stripping the forms under some gutters and a 4 x 6 fell six feet from above and struck him on his neck and right shoulder.
The Employer Injury Report dated June 29, 2009 stated:
After I questioned my crew I found out a piece of lumber landed on [worker's] shoulder many weeks ago. Apparently he didn't feel the need to fill in a green card. He has worked every day until he phoned in after a weekend … he said he had pinched a nerve while lifting something out of his vehicle.
When speaking with a WCB adjudicator on July 10, 2009, the worker advised that he was stripping an abutment. They were removing 8 x 6 boards and one fell approximately 4 to 5 feet and landed on his shoulder by the neck. He could not recall the exact date of injury but noted that it was within the week of May 4, 2009. He said a carpenter foreman witnessed the injury and told him to be more careful. He continued working for three to four weeks when his hand started to get numb. The worker advised that he first sought medical attention on June 12, 2009 and that he told the hospital that his shoulder and neck was sore from a board falling on his neck. The worker denied any prior difficulties with his neck or shoulder.
The file information contains a CT scan report of the cervical spine dated June 13, 2008. At the C7-T1 region, the following was reported: "There is artifact from the shoulder. There may be a large disc herniation, but this could be an artifact. Further assessment with MR is recommended. No other abnormality is seen."
A doctor's first report dated June 23, 2009 noted that the worker was seen on June 17, 2009. The "Area of Injury" was "neck, cervical disc disease." Regarding "Diagnosis", the report stated "re-injury neck."
The hospital report dated June 17, 2009 stated that the worker:
Intermittently has right arm weakness. Intermittently for the last year. Pain radiates from neck into shoulder blade into shoulder. Radiates into finger tips. This happened abruptly approximately worsening today. Able to move and has hand grasp but weak because of pain. Pain specifically to shoulder area, was awaiting mri but missed appointment.
On July 15, 2009, the treating physician reported that he initially saw the worker on May 1, 2008 for an unrelated problem and that he was seen again on May 22, 2008 with complaints of right shoulder pain. The worker was then seen again on June 17, 2009 with ongoing complaints of right shoulder pain. He gave no history of a previous injury. A CT scan was done and an MRI was ordered as suggested by the CT scan; however, the worker did not attend for the examination.
On July 29, 2009, the worker was advised by Rehabilitation and Compensation Services that the WCB was not able to establish that his right shoulder and neck difficulties had arisen out of and in the course of his employment based on the following findings:
- The differing accounts of reporting the injury;
- The delay in seeking medical treatment;
- The delay in going off work;
- The two week delay in experiencing symptoms to his neck and shoulder after the accident; and
- The history of chronic neck and related right shoulder pain.
On October 2, 2009, the worker filed an appeal with Review Office and submitted a report from a neurologist dated September 11, 2009 to support that he had no cervical or shoulder problems prior to his accident and that his current problems were work-related.
On October 30, 2009, Review Office determined that the worker's claim was not acceptable. Review Office referred to the information provided by the neurologist that the worker had a normal nerve conduction study and a normal neurological examination with respect to his neck and shoulder. Review Office noted that the report mentioned a piece of wood falling approximately 20 feet onto the worker and that the worker advised the WCB that the piece of wood fell four to six feet.
Review Office referred to specific file evidence to support that the worker did not provide accurate information to the WCB regarding his prior shoulder problems or to the accident description. Review Office found that the worker's diagnosis/condition pre-existed any alleged injury occurring at the beginning of May 2009. Review Office agreed with the adjudicator that there was no definitive diagnosis on file regarding the worker's right shoulder condition nor was it clear as to what had caused the worker's complaints in the summer of 2009.
In early January 2010, additional medical information was placed on file dated November 27 and December 30, 2009. On January 11, 2010, Review Office advised the worker that no change would be made to its previous decision.
On September 2, 2016, the worker's advocate provided Review Office with medical information dated 2009 onwards to support that the worker was entitled to wage loss benefits. On September 13, 2016, Review Office advised the advocate that the medical reports were on file at the time of the previous Review Office decision and that the newer reports had no bearing on the issue of claim acceptance. On January 4, 2017, the worker's advocate appealed the October 30, 2009 decision to the Appeal Commission and an oral hearing was arranged.
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:
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.
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;
(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 his claim is not acceptable.
The worker was represented by an advocate who provided an oral and written submission on behalf of the worker. The worker answered questions from the panel.
The worker's representative reviewed the details of the accident. She advised that:
- the worker was injured on the worksite the week of May 4, 2009.
- the accident was witnessed by the labour foreman.
- the worker did not report the accident as he was under the assumption the employer would report it.
- the worker is not able to read or write, and depends on others.
- the worker was working on a construction site, dismantling lumber, or timber, when lumber fell and hit him on the right shoulder and neck.
- the worker continued to work for three to four weeks after the accident, at which time his right arm started to go numb, so he attended the local hospital emergency room.
- the worker was told in the hospital that he had a pinched nerve in his neck and to see his family doctor.
- the worker saw the family doctor on June 17, 2009 and was referred to an orthopedic surgeon and to a neurologist.
- the worker saw a different family physician who noted "Very sensitive over supraspinatus insertion shoulder with very limited internal rotation and abduction" and "rotator cuff injury right shoulder."
In answer to a question, the worker provided additional information on the duties that he was performing when the accident occurred. He said he was underneath the structure and with another worker, dismantling wooden forms. One section of the form was not properly constructed and when his co-worker pulled on the first form it came down and the other forms all followed "like dominoes." The worker said the form was comprised of about five 2 by 4s, two 4 by 4s, and about four or five sheets of plywood, three-quarter inch. He said the full form hit him. He said that he fell to the ground and that two 2 by 4s and plywood were on his leg.
The worker said that after the incident he was given light duties cleaning up garbage around the site. He said that he was assigned to just opening the gates and doing cleanup, no heavy lifting, no ripping boards apart, light duty.
The worker disagreed with the information on the file which indicated that a single board hit him. He also denied that he worked for 3 to 4 weeks after the incident.
Regarding the information provided by the employer, the worker denied advising the employer that he had pinched a nerve while lifting something out of his vehicle.
The worker could not recall seeking medical attention for his arm in 2008. He could not recall attending at the hospital in 2009 and complaining of pain and numbness to right arm intermittently over past year.
Regarding his memory, the worker explained that he suffered a significant brain injury when he was young and it has impaired his memory.
The worker advised that he has not worked since he was injured in 2009.
The employer was represented by its safety coordinator. The employer representative advised that employer agrees with the Review Office decision.
The employer representative advised that the employer subsequently learned that the worker was struck by a board. He said that the worker did not notify the employer that he was injured and that the worker continued to work until June 19, 2009. The employer was not told that the worker sought medical attention. The employer representative disputed the worker's description of the worksite.
The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was not able to make this finding.
The panel accepts that in May 2009 the worker was involved in an incident at the worksite. However, the panel is not able to establish that the worker was injured in the incident. The panel cannot identify a diagnosis for an injury that occurred in the incident. Accordingly, the panel finds that the incident does not meet the definition of accident, in that the evidence does not establish on a balance of probabilities, that the worker was injured as a result of the incident.
There are numerous medical reports and diagnostic tests noted on the worker's claim file. The panel notes there is evidence that the worker sought medical attention for the right shoulder and neck approximately a year before the workplace incident. The panel notes the following:
- medical report from physician dated July 15, 2009 indicating that he saw the worker on May 22, 2008 for a complaint of right shoulder pain. He indicated that a CT scan was ordered and that the worker attended again on June 17, 2008 with ongoing complaints of right shoulder pain.
- CT report of Cervical Spine dated June 13, 2008 noted no abnormality C3-C4 to C6-C7 and a possible disc herniation at C7-T1. An MRI was recommended.
- Triage Report from local emergency department indicating that worker attended on June 17, 2009 and reported, in part: "Intermittently has right arm weakness. Intermittently for the last year. Pain radiates from neck into shoulder blade into shoulder. Radiates into finder tips."
While the worker denies any knowledge of these events, the panel finds, on a balance of probabilities, that the worker did seek medical attention for a shoulder injury approximately one year prior to the reported workplace injury.
The panel also notes that testing was done in 2009 and that the tests did not identify an injury. In this regard, the panel notes the following information:
- September 11, 2009 report from a neurologist who examined and tested the worker and found a normal neurovascular examination and normal nerve conduction study. The neurologist concluded, in part, that:
1. Presently his main complaint is a right shoulder pain with limitation of the right shoulder movements…his present symptoms do not appear to be neurological in origin so that they are more suggestive of a shoulder disorder which is beyond the fields of my expertise…He does not appear to have a neurological disorder.
2. He also does not describe any cervical radicular symptoms nor can I demonstrate any cervical radicular signs on examination. It is also good to note that his MRI scan of the cervical spine done recently is reported as normal.
3. He complains of having some vague numbness in his right arm. Although I cannot demonstrate any objective signs, but to exclude the possibility of a more peripheral entrapment neuropathy, I performed nerve conduction studies. There are no abnormalities.
- MRI report dated July 16, 2009 indicated that "No abnormalities are seen. The apparent disc herniation at C7-T1 on CT was likely an artifact as this disc space appears normal on MRI."
In conclusion, although the panel finds that the worker was hit by a board while working in May 2009, it is not able to establish that the worker was injured. The medical information strongly suggests that the worker had a longstanding shoulder problem, and in fact, sought medical attention in 2008 for the same symptoms that he complained of after the incident in 2009. As well, the medical evidence did not identify an acute injury in May 2009.
The panel therefore finds, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of and in the course of his employment in May 2009.
The worker's appeal is dismissed.
Panel MembersA. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of June, 2017