The Appeal CommissionThe Workers Compensation Act of Manitoba

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 June 20, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 3, 2016, the worker filed a claim with the WCB for an injury to his head/neck that he related to a work incident that occurred on March 20, 2016. The worker stated:

I was going up a set of stairs quickly. I looked at a coworker that was driving down the aisle…I struck my head on a metal frame.

The worker said he reported the March 20, 2016 incident to his employer on April 25, 2016 as he did not think his injury was serious.

The Employer's Accident Report stated there were no witnesses to the claimed incident of March 20, 2016 and no report was filed by the worker. When the worker missed time from work, he said he was not feeling well. Then on April 22, he reported that he struck his head while wearing a hard hat and that this was the cause of his injury.

On May 9, 2016, the worker advised the WCB that he struck his head against a bar on March 20, 2016 while walking up a flight of stairs. He said he continued to work as he could not leave the job site. After the accident, he started to feel numbness, cramping and twitching in his right arm. He attended the emergency response team (ERT) at work and was told that he was dehydrated.

On March 23, 2016, he attended a hospital facility and his family doctor who referred him to a neurologist. On April 22, 2016, he started to lose feeling in his hand at work and he felt dizzy and weak. His parents came to visit and noticed that he was not moving his neck. This was when he recalled the incident at work on March 20, 2016.

On May 24, 2016, the WCB spoke with a witness who indicated that he saw the worker working in the area where he claimed he struck his head. He did not see the worker hit his head nor did the worker say he struck his head.

The WCB spoke with the ERT person who indicated that the worker reported that he had shaking and numbness in his hands. The worker did not report a physical injury of any kind. He thought the worker's symptoms were from heat exhaustion/dehydration. The worker sat in the lunch room for a few minutes and soon returned to work.

Initial medical reports confirm that the worker was seen at a hospital emergency facility on March 23, 2016. The report stated "…over the last couple of days has had cramping sensations to hands initially, states a full body ache and fatigue, mucous membranes are mopist (sic) at triage pt appears anxious, skin warm and dry, no diaphoresis, denies fevers and chills, denies med hx."

A physiotherapy report dated May 19, 2016 indicated that the worker was seen for neck pain that radiated to both hands and arms. The worker reported that he was going up a ladder wearing a hard hat and hit his head on the ceiling. The diagnosis was cervical radiculopathy.

A report from a neurologist stated that he saw the worker on April 28, 2016 for a neurological consultation. The specialist reported that the worker had a recent history of head injury, vertigo and numbness in his hands and complained of instability and a sensation of falling over for the previous two weeks. The neurologist's impression was that the worker's signs and symptoms were suggestive of an alcoholic encephalopathic/neuropathic condition.

On May 26, 2016, the worker was advised by the WCB that his claim for compensation was denied based on the findings that his workplace had not been able to confirm that anyone witnessed the event on March 20, 2016 or that it was reported in any manner until April 25, 2016. The triage report from his initial attempt to seek medical care made no reference to a head injury or that his symptoms were work-related. Based on the delay and lack of reporting to his employer and medical provider, the WCB was of the opinion that an injury related to his employment had not been confirmed.

On May 30, 2016, the family physician's receptionist confirmed that the worker had been seen on April 7, 28, and May 2 and 12. After scanning the chart notes, the receptionist advised that there was no report of a workplace accident.

On July 18, 2016, the worker appealed the May 26, 2016 decision and his case was referred to Review Office for consideration.

On September 21, 2016, Review Office confirmed that the claim was not acceptable. On February 14, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held.

Reasons

Applicable Legislation

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;

(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 decision that his claim is not acceptable.

Worker's Position

The worker was assisted by his father.

The worker advised that he hit the top of his head at work. He was wearing a hard hat at the time. The worker said that he continued working through the day, skipping most breaks, trying to get the job completed before the end of a regular shift. The worker said:

I took a break. Only after taking the break and relaxing for a while, I believe my neck started to swell. Going back to work, my hand cramped up. I sought medical attention at work for it. I received treatment by [co-worker] in the lunch room, not in the ERT room. He felt it was just cramp and possible dehydration. I completed my work, actually, had to get an employee to help me complete my work, stayed overtime to do it.

The worker said that he went home after work and at about 10:30 PM his whole body started to spasm and twitch. He was scared to go to sleep but went to bed. The following day he didn’t feel very well at work but the day after felt great. Then the next day he had to go to a hospital emergency department. He described his symptoms as dizzy, lightheaded, spinny, arms twitching, legs twitching, and crampy. After waiting three and one half hours, he left the hospital without treatment.

He then went to see his physician who thought he had the flu or perhaps virus-based symptoms. He said that he did not tell his physician about hitting his head because he did not recall the incident.

The worker said his condition deteriorated over the next month. His father took him to emergency. He also saw his physician again and was referred to a neurologist who ordered a CT and gave him a prescription for nausea. His physician then ordered an x-ray of his neck. He has had physiotherapy, massage and chiropractic treatment.

The worker said he is on restricted duties as a result of the accident.

In answer to a question, the worker advised that he had an MRI of his head and was told by his physician that it came back clear.

Regarding his ongoing condition, the worker commented that:

I’ve had days where I felt great, I felt fine. I’m like, you know, hopefully I’m through this and past this, and then, you know, couple of days later I wake up and I’m not feeling well again.

The worker said his chiropractor believes he has nerve damage in his neck. He also said that his physician commented that his symptoms seem like concussion-like symptoms.

In answer to a question about workplace restrictions, the worker confirmed that his treating physician provided restrictions. He said the restrictions were no overtime, eight-hour days only, no lifting, no climbing, no stairs, and no ladders.

Regarding whether he has symptoms in his legs, the worker said:

Thigh, yes. But sometimes it feels like, honestly, somebody either charley-horsed here or punched you as hard as they could. Like, I’ll get a shooting pain here, I’ll get -- like, it’s just a whole bunch of things, cramping, my legs twitch, my calves twitch.

The worker advised that he does not know what causes the symptoms. He said:

It is random. Sometimes I’m walking, and I start to get a pain. Sometimes I’m not, like, it’s fine. I’ll get to work sometimes and I’ll go up the stairs, I’ll walk around, and I feel normal. And then I’ll go to do it again half an hour later, and it’s just like, you know, it hurts.

Employer's Position

The employer was represented by its Safety Manager. The employer representative questioned why it took the worker until late April to realize that his injury was as a result of something that occurred on March 20. He advised that the co-workers listed as witnesses stated that they did not see the accident. He submitted that:

…basically the company’s position is that we didn’t have an incident report, and we can’t prove definitively that the injury occurred at work.

The employer noted that there were several discrepancies in the worker's claim.

Analysis

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 or that the worker's employment aggravated a pre-existing condition. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker's claim is not acceptable.

The panel accepts the worker's description of the accident and is satisfied that he hit his head at work on March 20, 2016. However, the panel finds that the incident was minor and that the worker was not injured as a result. In making this decision, the panel relies upon the evidence in the file and the evidence provided at the hearing by the worker that:

• the bump on the head did not initially hurt. He said that he continued to work after bumping his head and confirmed that he was able to perform his regular duties through to the end of his shift. He also said that his main concern was being embarrassed that a co-worker saw the incident.

• post incident he had good days and bad days. The panel finds that this is not consistent with a head or neck injury.

The worker advised that before the accident on May 10, 2014 he had an x-ray of his cervical spine. The worker provided a copy of the x-ray report. The panel notes that the x-ray indicated:

There is slight narrowing of the C5-6 intervertebral disc space. The facet joints are well maintained.

The worker also provided a copy of a report for an x-ray taken on May 22, 2016, approximately two months after the accident. The panel notes this x-ray identified degenerative changes to the worker's neck. It indicated:

C-spine Alignment is normal. There is narrowing of the C3-4, C4-5 and C5-6 disc spaces along with marginal osteophyte formation and subchondral sclerotic change indicating degenerative disc space disease. Facet OA changes are developing in the mid levels.

The panel finds that the worker had a pre-existing neck condition. The panel is also not able to find evidence that the worker's pre-existing condition was aggravated or enhanced by the accident. The panel notes that the worker has said that he has good days and bad days, the panel notes that the waxing and waning of symptoms is consistent with a degenerative condition.

The panel also considered the worker's initial complaints and the resulting treatment. The hospital triage report from March 23, 2016 does not record complaints of a head or neck injury. The treatments are not focused on a head or neck injury. Likewise, the panel notes that an acute work injury was not reported by the worker to his treating physician on his subsequent visits of April 2 and 28, and May 2, 2016

In conclusion, the panel 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.

The worker's appeal is dismissed.

Panel Members

A. 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 21st day of July, 2017