The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable. A hearing was held on December 12, 2017 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

Prior to the worker reporting her injury to the WCB, the worker saw a doctor on March 29, 2016 complaining of left sided rib pain. The worker further reported, in part, that "2 years ago, injury to right rib at a party, flares up and then subsides, since then episodic discomfort to left chest worsened by coughing pressure and few movements, flares up and then subsides…Well localized over left lower anterior rib cage…" The doctor noted, on examination: "Localized tenderness over left lower costal chondral joint with reproducible pain and some intercostal tenderness…"

On April 12, 2016, the worker was seen by a second doctor, at which time she described her injury as "Left sided rib pain progressively worsening over past two months" and was diagnosed with costochondritis.

In her Worker Injury Report dated April 17, 2016, the worker stated that she injured herself in her job duties in a retail environment, which included lifting items up to 75 pounds by herself and up to 300 pounds with help, and repetitive bending, twisting and reaching while moving furniture around.

During an initial conversation with the worker on April 26, 2016, the WCB noted:

She is a…Coordinator. She receives the merchandise. She pulls the pallets off the truck & then lifts the boxes off the pallets. She puts the boxes onto big tanks & if it is furniture she puts it onto a big pallet to take it onto the floor. They had stronger people to do the heavy lifting in the past, but in the last 2 months her employer wanted equality in the work-place, but as she works with older ladies it was mainly the worker who ended up doing the lifting. They get shipments every day so everything has to be out of the warehouse & onto the floor by 5:00 p.m. so they can receive the next truck the next day. Her job is physically demanding & she takes approx. 25,000 steps per day. All day she is doing repetitive bending, reaching, twisting, & lifting. Once she unloads the truck she fills the shelves. She weighs 100 pounds & she is 5 feet 1 and a half inches tall. They are [store name] so they only deal with products for the home re: mirrors, textures, furniture, side tables, bedding, smaller items as well. She is constantly lifting big comforter sets over her head to put them way (sic). The weights she lifts vary in weight from 5 - 50 pounds. She is lifting all day. She also has to do lifting of larger items for carry outs for customers. The warehouse is so crammed full of stuff it is hard to get products onto the huge warehouse shelving. She climbs up a ladder or stairs to get the products on the shelving, but a lot of the time there is no ladder so she has to stretch her body & throw the items up there. She attributes her chest/rib difficulties to the aforementioned job-duties. No other job-duties.

The employer confirmed the worker's job duties during a conversation with the WCB on May 5, 2016, but did not agree there was an increase in lifting in March. The employer noted that the worker did not initially report the injury as work-related but as an injury which had occurred a year and a half earlier.

The WCB again spoke with the worker, who said that she had a prior non-occupational injury to her chest/ribs three years ago. She thought her current injury was related to that incident but the doctor she saw on March 29, 2016 told her this was a new injury and not from her previous incident.

By letter dated May 31, 2016, Compensation Services advised the worker that her claim was denied as they were unable to relate her current left chest difficulties to her job duties.

On October 5, 2016, a worker advisor, acting on the worker's behalf, appealed the decision to Review Office. The worker advisor noted that while the WCB and the employer related the worker's injury to an incident at a party which was not work-related, "…the doctor's note shows a report of a past injury to the right rib area two years ago, not a left sided chest/rib injury as [the worker] is currently claiming."

The worker advisor also noted that:

With the acceptance of any claim, there must be evidence to support an injury is either related to the employment duties or to a work-related incident. In [the worker's] case, her claim is acceptable as the evidence supports that injury of Costochondritis and the diagnosis of a Grade I - II sprain, we submit, is on a balance of probabilities, related to her very physical employment duties, and her small stature.

On January 11, 2017, Review Office determined that the worker's claim was acceptable. Review Office found, on a balance of probabilities, that the worker's job duties resulted in her developing the current rib/chest wall difficulties. Review Office also placed weight on the worker being petite, and found that her slight build made her physically demanding job even more difficult.

On February 2, 2017, an advocate for the employer provided a submission to Review Office, requesting that the decision to accept the claim be revisited. A response from the worker advisor to that submission and a rebuttal from the employer's advocate to that response are on file.

On March 29, 2017, Review Office advised that there was no change to its decision of January 11, 2017, as it was unable to identify any new information which would impact or change its earlier decision.

On April 19, 2017, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 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.

"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.

Employer's Position

The employer was represented by an advocate, who provided a written submission in advance of the hearing and participated in the hearing by teleconference.

The employer's position was that the worker's claim should not have been accepted, as the evidence shows, on a balance of probabilities, that the worker's left rib injury was caused by something outside of work and was not work-related.

The advocate submitted that the medical information which is contemporaneous to the alleged date of injury, and more particularly clinical notes from two different doctors, from March 29, 2016 and April 7, 2016, cannot be ignored. Neither set of clinical notes contains any reference to a work-related cause for the worker's rib pain. The March 29 clinical notes, which are closest in time to the date of injury, refer to a prior non-occupational event, and state that since that event, the worker reported she had been symptomatic and had episodic discomfort to the left chest which was worsened by coughing and other movements. In his April 7 clinical notes, the second doctor also referred to a rib injury from two years earlier, and identified a specific non-occupational episode, a cough, which had now caused severe left rib pain. The worker's own contemporaneous reporting to her doctors therefore indicates that she was symptomatic for some time prior to the alleged date of injury, and points to specific non-occupational events which led to severe rib pain.

The advocate stated that a recently received x-ray from September 2016 showed an old fracture to the worker's left rib in the area of her pain complaint. The advocate noted there was no acute accident to account for the rib fracture as shown on the x-ray, and no basis to argue that the fracture was work-related. He submitted that the x-ray evidence brought the reason for the worker's longstanding discomfort clearly into focus. It showed that this was a non-occupational fracture, and confirmed that the fracture was the cause of the worker's condition and symptoms.

Finally, the advocate noted that the September 2016 x-ray was not available to Review Office when it made its decision, and the only diagnosis which had been accepted was costochondritis. He submitted that the existence of the fracture as shown on the x-ray raises significant questions regarding the accuracy of that diagnosis and therefore the foundation on which the claim has been accepted.

In conclusion, it was submitted that the contemporaneous medical information together with what was now known with respect to the worker's old non-occupational fracture established, on a balance of probabilities, that the cause of the worker's left rib injury was something outside of work. The claim was therefore not acceptable, and the Review Office decision to grant entitlement to benefits should be overturned.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker was accompanied by her mother at the hearing.

The worker's position was that the evidence supports she suffered a left-sided chest or rib injury which arose out of and in the course of her employment, and her claim was properly accepted.

It was submitted that there was consistency in the worker's reporting of the incident and medical attention was sought for that injury in a timely manner, all of which connected her injury to her employment. The Employer's Incident Report confirms that she reported a left chest injury on March 29, 2016 related to her work duties. The worker described the cause of her injury in her Injury Report as being related to her job duties including repetitive bending, reaching, twisting and lifting up to 75 pounds alone and up to 300 pounds with support.

The worker advisor noted that the medical information on file confirmed that she sought medical attention for her left chest/rib injury on March 29, 2016. She reported to the WCB on April 26, 2016 that she first felt symptoms in the rib area about one week before March 29, which gradually worsened while working. A doctor's report dated May 9, 2016 confirmed that he examined the worker on April 12, 2016 when she presented with left-sided chest pain and reported the injury as being the result of lifting heavy items at work. The doctor provided a diagnosis of costochondritis.

It was submitted that the worker's job duties, to which she attributed her condition and pain, were physically demanding, and involved repetitive bending, reaching, twisting and lifting. The evidence showed that the worker had been working with two older women in the two months prior to the date of injury, and she had therefore done most of the lifting. The worker advisor noted that the store manager had confirmed to the WCB that the worker is a hard worker.

The worker advisor referred to medical literature on file, which identified physical strain, including heavy lifting, as one of the causes of costochondritis, and indicated that the symptoms of costochondritis usually occur on the left side of the breastbone and affect more than one rib, with subjective complaints of pain worsening with taking a deep breath or coughing.

In conclusion, it was submitted that the Review Office decision should be upheld as all of the reporting and medical evidence points to a work-related injury.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find that the worker was not injured by accident arising out of and in the course of her employment as provided by subsection 1(1) of the Act. The panel is unable to make that finding.

The accepted compensable diagnosis on this claim is costochondritis. The panel notes that our review of the medical information on file indicates that all of the worker's treating physicians arrived at this same diagnosis.

The panel carefully questioned the worker at the hearing with respect to her work duties, and is satisfied that those duties were physically demanding. Based on our review of the information on file and at the hearing, the panel accepts the diagnosis of costochondritis as being consistent with the worker's job duties and our general understanding of that condition.

The employer has relied on the September 27, 2016 x-ray as evidence that the worker's symptoms and condition were the result of a fracture of her left 6th rib. The panel is unable to accept that argument. The panel notes that the x-ray results refer to an old fracture, which would indicate, in our view, that the fracture had healed and predated the injury. The evidence indicates that the worker had been working regular duties for a long period of time prior to March 2016, and the panel is satisfied that any rib injury prior to that date was no longer an issue.

The panel further notes that the medical reports on file pertaining to the worker's injury point to pain and tenderness which the worker was experiencing being in the area of the 9th and 10th ribs, as opposed to the 6th rib that was identified as being previously fractured in the x-ray. In the panel's view, these areas are separate and distinct from one another, with the compensable injury being localized to the 9th and 10th rib area.

In the course of the hearing, the worker made reference to a photograph of her injury, which she had on her phone. Arrangements were made to print the photograph, which was then also forwarded to the employer's advocate. The photograph, which the worker said was taken on April 11, 2016, showed a significant bump and swelling in the worker's left side, which was consistent with the diagnosis of costochondritis in the 9th and 10th left rib area.

The employer has also relied on the worker's reporting of and references to a past injury to her right rib area which she suffered at a party during an incident two years earlier. The panel notes that this earlier injury was to the worker's right side, not her left side. The panel accepts the worker's evidence at the hearing that the pain which she felt at the time of the earlier right rib injury was not on the same side as the pain with respect to the March 29, 2016 injury, or in the same spot at all. The panel further accepts the worker's evidence at the hearing that the earlier right rib injury resolved itself shortly after that incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker was injured by accident arising out of and in the course of her employment as provided by subsections 1(1) and 4(1) of the Act. The panel therefore finds that the claim is acceptable.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of February, 2018