Decision #29/18 - 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 October 11, 2017 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On January 25, 2017, the worker filed a claim with the WCB for a neck injury that occurred at work on January 13, 2017.
The worker reported that his job duties as a punch press operator involved repetitive lifting of 40 packages that weighed over 50 pounds each in a day. He lifted the packages from the ground to a machine that was at his waist level. He had been at the same job for 10 years and did the same activity 8 hours per day. He did not report the injury to his employer until January 20, 2017 as the pain was not that bad at first. When he woke up on January 20, 2017, he felt a shooting pain in his neck which prompted him to attend a hospital, then a sports clinic.
On January 23, 2017, the employer advised the WCB that there was no "accident." Around January 13, 2017, the worker said his neck felt a bit sore and the soreness/pain intensified as the week progressed. The employer stated:
We learned to-day that he had actually been telling a co-worker his neck was a bit sore and as he turned his head to the right or left there would be this "cracking" sound. This was not anything new - he had demonstrated this to [owner] in the past but there was no mention of any pain.
We manufacture [product] where he would operate a punch press. He would also help package when needed. Maximum weight is 50 lbs. in 9" cubed cartons. Cartons are on a conveyor so there is no bending down to pick up. Cartons are carried to a table which is on the same level.
In January and February 2017, the WCB obtained additional information regarding the nature of the worker's job duties and the development of his neck difficulties. Medical information was also obtained which revealed that the worker was diagnosed with torticollis when he attended at the hospital on January 20, 2017, and cervical spine hypomobility with paracervical muscle strain at the sports clinic.
On February 15, 2017, Compensation Services determined that the worker's neck difficulties were not related to his job duties and his claim was not acceptable. The adjudicator noted that there were inconsistencies in the file evidence as to when the worker's neck difficulties began. The adjudicator stated:
You mentioned that you felt neck pain in July 2016 but did not state that any work accident or incident occurred. You indicated that the date of accident is January 13, 2017 but noted that you woke up with neck pain, which occurred prior to starting your job duties that day. Therefore, you were not in the course of your employment when you suffered your neck pain and I cannot relate the development of your neck difficulties to your job duties.
In March 2017, the worker appealed the decision to Review Office. On March 28, 2017, Review Office found that the criteria for an accident as outlined in subsection 1(1) of The Workers Compensation Act (the "Act") had not been met, and it was unable to find that the worker's neck discomfort arose out of and in the course of his employment.
Referring to file information, Review Office noted it was unable to establish that a work-related injury occurred in July 2016 or that the onset of pain prior to working on January 13, 2017 was related to the worker's employment. Review Office noted that the worker may have had a change in work duties on January 17, 2017, but found that he did not report an acute work-related injury to the employer that day or seek medical attention at that time. On April 5, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On January 10, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by 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,
(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.
WCB Policy 44.05, Arising Out of and in the Course of Employment, addresses the interpretation of the phrase "arising out of, and in the course of, employment," and states, in part:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker was self-represented. The worker was accompanied by his son at the hearing, and was provided with the assistance of an interpreter. The worker made a presentation, and he and his son responded to questions from the panel, with the assistance of the interpreter.
The worker's position was that his neck injury was caused by his having spent 10 years bending his head downward in order to perform his work duties.
The worker stated that he started working for the employer as a punch press operator in 2007. While working at the machine, he had to bend his head forward. In July 2016, he also started to help with packaging, which involved lifting heavy packages. On Wednesday, January 18, 2017, he was asked to lift approximately 40 packages that weighed over 50 pounds. He felt a lot of discomfort after finishing that task. His neck hurt the next day, and on January 20, 2017, he couldn't move it. He went to the hospital, and was referred to a sports medicine doctor. The doctor recommended physiotherapy, but his neck was still not good after 5 treatments. The doctor also recommended acupuncture, but he could not afford it.
The worker said his doctor told him that the prolonged period of bending and lifting could be the reason that the muscle around his neck was starting to tighten and deteriorate and was causing friction in the area of the vertebrae in his neck. She told him that he could not continue working 8 hours a day, and had to shorten his shifts to 4 hours.
In response to questions from the panel, the worker provided further details with respect to his job duties, his posture while he was performing his duties, the location and onset of his neck difficulties, and his current condition. He stated that his main job was operating the punch machine. The machine was at waist height, and he had to bend over while operating it, in order to see what he was doing. He operated 9 different machines over the course of his employment, some of which were smaller or at different stations, but he always had to lean over the machines when operating them.
The worker confirmed that he only started lifting packages around July 2016. He said the employer would move him over to the packaging line to lift boxes when he was not really busy with the punch machine. He lifted packages from different spots, including the floor or shelves. The number of packages varied, but he estimated that he would lift an average of approximately 40 packages in a week.
The worker said that he started to experience some discomfort and a clicking in his neck around July 2016, and an x-ray was taken at that time. On January 18, 2017, he had to lift about 40 packages, which was much more than usual. After that, he was very sore. The packages came from everywhere, not just the floor. He worked the following day (January 19). The worker noted that he did not feel very well that day, but did not have to do any packaging. When he woke up on Friday, January 20, he could not move his neck at all and his son drove him to the hospital.
The worker said that currently, his neck is not painful, just uncomfortable. He had an MRI in September 2017. He did not recall what the doctor said about it, but she wrote a note saying that he was to work only 4 hours a day, 5 days a week. The worker said that he continues to work 4 hours per day operating the punch press. He can no longer lift packages.
In closing, the worker submitted that the accumulation of constantly working in the same position, with his head bent over, was what caused his neck injury. He said that the heavy lifting at work on January 18, 2017 did not cause his condition, but it triggered or aggravated it, and resulted in his having to go to the hospital.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment, or in other words, that the worker's neck difficulties were causally related to his job duties. The panel is unable to make that finding, for the reasons that follow.
The worker has referred to a mechanism of injury of bending, as well as the activity of lifting. The panel is unable to account for the worker's neck difficulties based on the proposed mechanism or mechanisms of injury. The worker argued that he suffered a cumulative injury to his neck as a result of bending his head over a punch press for 10 years. The evidence indicates that the worker did not report having experienced a work injury to his neck prior to January 2017.
The worker submitted that the condition in his neck was triggered or aggravated by duties he performed in the course of a particular day in January 2017, where he was performing a different work activity which involved lifting a large number of heavy packages. The panel notes that the worker did not report an injury at the time, and has not referred to any specific incident that day which might have triggered any symptoms in his neck. The worker was able to complete his shift, and to perform his regular duties the following day. Based on the evidence which is before us, the panel is unable to find that the activity of lifting packages on that one day caused or triggered the worker's neck difficulties.
The panel notes that the worker indicated at the hearing that he had started to experience discomfort and a clicking in his neck around July 2016. Information on file indicates that the employer recalled the worker showing him over the summer that his neck would click when he turned it, but that the worker said he did not have any pain. There is no record of any claim with respect to neck difficulties having been advanced at that time, and an x-ray of the worker's cervical spine taken July 20, 2016 was normal.
The date of incident was identified in the Worker Injury Report as January 13, 2017. The worker expressly stated in the Report that "On Jan 13, before going to work felt a little pain in my neck," and that he first noticed his symptoms at home. There was no mention in the Report of anything having occurred on January 17 or 18, 2017. While there was some suggestion by the worker at the hearing that he may have made a mistake in the Report and the date should have been January 18, not 13, the panel notes that the January 13 date is consistent with the date of incident as identified in the contemporaneous medical reports. The worker further stated at the hearing that his neck began to feel kind of sore on January 13, but he worked through the rest of that week without any problem.
There was some confusion at the hearing as to whether it was January 17 or 18 when the worker was tasked with lifting more heavy packages than usual. In any event, the worker's evidence was that he went to work the next day and worked his full shift on the punch press. It was only on January 20, 2017, when he woke up in the morning, that he found that he could not move his neck. The worker acknowledged that he was at home when he found that he could not move his neck, and that it was this inability to move his neck that led him to seek medical attention.
The worker submitted that his neck difficulties must be related to his work duties as he had no previous injuries or outside activities which could have caused his condition. He also stated at the hearing that his doctor had told him that the prolonged period of bending and lifting could be the reason that the muscle around his neck was starting to tighten and deteriorate and was causing friction in the area of the vertebrae in his neck. The panel finds that these statements are speculative in nature and are not supported by clinical evidence.
The panel is also unable to relate any diagnoses which are provided in the medical information on file to a workplace injury. The initial diagnosis which was provided when the worker attended at the hospital emergency room on January 20, 2017 was torticollis. The panel notes that this diagnosis is not supported by clinical evidence at the time or after, and the worker was referred to and attended a sports medicine clinic for follow-up that same day.
The diagnosis which was provided by the sports medicine physician was "cervical spine hypomobility with paracervical muscle strain." The panel notes that the worker indicated at the hearing that his condition has not yet resolved. He continues to have problems with his neck, and was sent for an MRI on September 12, 2017. His neck is still uncomfortable and he is now only able to work 4 hours a day at the punch press position, and not at all in packaging. Given the worker's prolonged symptomatology and his ongoing inability to work more than 4 hours per day, approximately 9 months after the reported date of incident, the panel is unable to accept the diagnosis of a strain injury.
At the hearing, the worker further referred to and demonstrated the cracking or clicking sound which he experiences in his neck. The panel notes that the medical reports on file do not contain any particular reference to or diagnosis concerning such a sound in the worker's neck, or any indication that this could be work-related.
Following the hearing, the panel obtained a copy of the report of the worker's September 12, 2017 MRI, as well as chart notes from the treating sports medicine physician. The reported impression from the MRI was: "Early degenerative changes with mild neural foraminal narrowing at C5-6." In her chart notes dated September 18, 2017, the treating sports medicine physician stated:
MRI reviewed…MRI findings DO NOT explain the patient's continued pain and tightness in neck muscles.
…patient also has to consider type of work he is doing if repeatedly bent over with neck or lifting perpetuates condition to certain extent, should consider more time off of work and trying a job that is less demanding on his neck, note given at patient request to restrict work duration to 4 hour shifts, FU PRN. (emphasis in original)
In summary, based on our review of all of the information on the claim file, as well as the evidence and argument provided at the hearing and medical information subsequently obtained, the panel is not able to find, on a balance of probabilities, that the worker's neck difficulties were causally related to the performance of his job duties. The claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of March, 2018