Decision #173/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on June 21, 2018 to consider the worker's appeal.
IssueWhether or not the claim is acceptable.
That the claim is acceptable.
On March 2, 2017, the worker reported to the WCB that she injured her right shoulder, neck and right upper chest in an incident which she described as follows:
For about a year my right arm and right shoulder has been having a tingling feeling and about two months ago I started feeling numbness in my fingers of the right hand. I went to see the doctor about on (sic) February 8th regarding having a nerve conduction test. The results were that I had a pinched nerve in my right shoulder due to my job. I saw the doctor on February 13th and he sent me for x-rays because my neck is very sore as well. I went for the x-rays on February 14th and then I had a follow up appointment on February 27th and that is when he told me to take time off from work. He said the back of my neck is swollen from holding my neck down.
In an initial conversation with the WCB, the worker stated that the pain was in her right shoulder and extended into her right hand and fingers. She noted that it was a constant numbness and tingling feeling, and would get worse when she was actively using her right hand. She was having issues grasping things with her right hand. The worker related her symptoms to different job duties, and noted that she would be hunched over the customer when doing those duties. She noted they were always busy, but there was no increase or change in her job duties before she felt symptoms one year earlier. There is an increase in job duties of about 20% at Christmas time, and her symptoms got worse during and after Christmas.
The WCB was provided with chart notes from the worker's family physician who diagnosed the worker with a right pectoralis muscle strain at a January 2, 2017 appointment. At a follow-up appointment on January 16, 2017, the physician noted no improvement in the worker's right pectoral muscle pain, and that the worker also reported pain, numbness and tingling in her right hand.
The worker was referred for a nerve conduction study ("NCS"), which was performed on February 3, 2017. The reported diagnoses/conclusions from the NCS were that the worker's right arm pain and sensory symptoms "are likely related to a right C5/C6 radiculopathy," and that carpal tunnel syndrome had been ruled out. It was recommended that the physician consider a "referral to physiotherapy regarding treatment of cervical radiculopathy (suspected at C5/C6)" and consider correlation with imaging such as an MRI of the cervical spine.
On February 27, 2017, after reviewing the x-rays and the NCS, the worker's family physician diagnosed the worker with "Acute on Chronic Right neck, shoulder and upper chest sprain" and recommended that she attend physiotherapy and be off work for two weeks, then reassessed.
On March 9, 2017, Compensation Services advised the worker that her claim was not accepted. Compensation Services noted that the worker's current diagnosis was a suspected C5/C6 radiculopathy/pinched nerve, and stated that such a diagnosis is thought to be associated with poor posture and degenerative changes. Given this diagnosis and that there was no specific incident at work and no significant change in the worker's job duties, Compensation Services was unable to relate the worker's current right shoulder/hand issues to her overall work duties.
On August 15, 2017, a worker advisor acting on behalf of the worker requested that Review Office reconsider Compensation Services' decision. The worker advisor noted that the worker and the employer had both advised that there was a 20% increase in the worker's job duties during the 2016 Christmas season, the period when the worker experienced the onset of new symptoms. The worker advisor further noted that while Compensation Services stated that a C5/C6 radiculopathy was thought to be associated with poor posture and degenerative changes, the worker had advised that she was "hunched over" customers while performing her various job duties. The worker advisor also submitted that the worker uses her dominant right hand repetitively, and at times forcefully, to perform her job duties, with her neck, upper back and right arm in an awkward and vulnerable position.
On September 28, 2017, Review Office advised the worker that her claim was not acceptable. Review Office stated that the worker was able to perform her job duties for many years without any known difficulties, and found that if her symptoms were caused by her job duties, they would have occurred earlier. Review Office further noted that the worker reported the onset of her symptoms approximately one year prior to reporting her claim to the WCB, and that there was no change or increase in her duties at that time to account for an onset of her symptoms, and medical treatment was not sought.
Review Office acknowledged that there was an increase in the worker's job duties over the 2016 Christmas season, but found that her job duties varied and the worker was not in the same position for her whole shift. Review Office determined that performance of the worker's job duties would not be sufficient to cause a structural change in the cervical spine, noted as a C5/C6 radiculopathy. Review Office was also unable to find that the described mechanism of injury (varied duties with rest breaks in between) would cause a strain/sprain.
On November 3, 2017, the worker advisor appealed the Review Office 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 interested parties for comment. On October 17, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
"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.
The worker was represented by a worker advisor who provided a written submission in advance of the hearing and made a presentation to the panel.
The worker advisor stated that their position had not changed since their August 2017 Review Office appeal. Their position, as set out in the appeal form, was that the worker's performance of her job duties caused her upper extremity injuries and the WCB should accept her claim.
The worker advisor pointed out, in particular, that the worker's January 2017 medical appointments were preceded by an approximate 20% increase in her workload. He noted that the worker is right-hand dominant. She uses her right hand and arm to perform all of her job duties, and her symptoms and clinical findings were all right-sided.
The worker advisor submitted that if the panel was to find that a cervical radiculopathy was associated with degenerative changes and poor posture and the worker was symptomatic from that condition, then the worker's job duties aggravated that condition through repetitive right upper extremity movements which she performed while "slouched over." He further submitted that aside from a cervical radiculopathy, right upper extremity sprain injuries were diagnosed and were also compensable.
Photographs of the worker at her work stations had been provided in advance of the hearing. With reference to those photographs, and in response to questions from her representative and the panel, the worker described her job duties in detail, including the nature of those duties, the equipment or tools she used, and her movements and positioning as she performed her duties.
The employer was represented by its Human Resources Manager. The employer's representative advised that they were not taking a position with respect to the worker's appeal. He noted that there was some repetition to the worker's job, but there was also diversity. He stated that he was familiar with the worker's job, and confirmed that the worker's description of her job duties was accurate.
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 her employment. The panel is able to make that finding, for the reasons that follow.
Based on our review of all of the evidence before us, on file and as provided at and subsequent to the hearing, the panel is satisfied, on a balance of probabilities, that the worker suffered a workplace injury to her cervical spine and her claim is acceptable.
The panel had the opportunity at the hearing to slowly and carefully explore the worker's job duties with her. The evidence shows, and the panel accepts, that the worker's duties involved bending over her work, and turning and holding her head in awkward positions for extended periods of time. The employer agreed that the job duties were as described by the worker. The panel is satisfied that the general nature of the worker's job duties, and a mechanism of injury of bending over and holding her head in such awkward positions for long periods of time would cause pain and be consistent with cervical spine issues.
The panel further accepts that seasonal changes occurred which would result in an increase in the worker's job duties. The evidence shows, and the panel accepts, that there was an increase or change in the worker's duties with an approximate 20% increase in her workload around Christmas time in 2016. Again, the worker's evidence with respect to such seasonal changes was not disputed by the employer. While the worker worked the same number of hours in a week, there was an increase in the number of clients she would see and in the frequency and types of services she would perform during those hours. The worker did not do her own bookings, and due to the increase in demands and back to back bookings, breaks were reduced and she would have few or no breaks between clients.
The worker was ultimately diagnosed with a right C5/C6 radiculopathy. The panel is satisfied, on a balance of probabilities, that this diagnosis is causally related to the worker's job duties and that the compensable injury is a radiculopathy as the result of a C5-C6 disc herniation. The panel notes that the diagnosis was supported by the findings of the February 3, 2017 NCS, that the worker's right arm pain and sensory symptoms "are likely related to a right C5/C6 radiculopathy." Correlation of that diagnosis with imaging was recommended at that time. An MRI was subsequently performed on April 22, 2018, and a copy of the MRI report which was provided in advance of the hearing confirms the presence of a small central disc herniation or tiny disc protrusion at the C5-C6 level. The panel accepts that the nature of the worker's job duties, including the increased load on her cervical spine due to the increase in her workload in late 2016, are consistent with the development of a radiculopathy and a C5-C6 disc herniation or condition at that time.
The panel notes the information before us indicates that the worker's condition improved with time away from the workplace and treatment. Information on file, which was confirmed at the hearing, indicates that the worker was off work for approximately one month starting in March 2017, during which time she rested and attended for treatments. The worker indicated that following her time off work, she felt 90% better and had no more tingling or numbness. She said that she went back to work, starting on a graduated return to work basis, and the tingling and numbness have not returned.
The panel further notes that information at the hearing and medical information provided subsequent to the hearing, at the panel's request, suggest that the worker's symptoms appear to have resolved. The panel would indicate that in finding the worker's claim to be acceptable, we make no specific findings as to whether the worker's job duties or mechanism of injury caused her injury or whether they aggravated or enhanced her condition.
Finally, the worker advisor asked that pectoral issues which the worker has experienced also be accepted as being related to her job duties. Based on the medical information on file and on our assessment of the worker's job duties, however, the panel is unable to find that the worker's pectoral issues are so related.
In conclusion, and as indicated herein, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. The worker's claim is therefore acceptable.
The worker's appeal is allowed.
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 11th day of December, 2018