The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on January 17, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On her Worker Incident Report, submitted to the WCB on March 18, 2014, the worker reported injuring the right side of her body on March 17, 2014 in an incident she described as:

[Co-worker] asked me to go to a classroom and get down a box of binders from top of a shelf. The box was in the back furthest to the wall. I was up on a ladder about 2 feet off the ground. When pulling the box down, I stepped down and missed my step and fell backwards into the door. I fell and hit my right side of the body. I have a swollen right wrist, sharp pain down my hand, my neck and shoulder, side of hip and knee excruciating pain…basically all of my right side.

The worker attended for an appointment with her family physician on March 17, 2014. After examination, the physician did not provide a diagnosis but noted "Fall/trauma at work" and right side pain and tenderness. He referred the worker for an x-ray. The x-ray conducted on March 17, 2014 noted degenerative changes.

At her initial physiotherapy assessment April 4, 2014, the worker reported severe pain on the right side of her neck and upper shoulder, and shooting pain below her shoulder blade and down her arm. She also reported numbness of her hand and tingling in her fingertips. The physiotherapist diagnosed a cervical spine/shoulder strain and queried myofascial referred pain down the worker's arm.

A CT scan conducted on April 5, 2014 on the worker's cervical spine indicated, in part:

There are mild degenerative changes present involving the cervical spine. There are no findings to suggest an acute fracture.

On April 19, 2014, the worker was seen by a sports medicine specialist. The specialist noted "Ongoing neck, shoulder, arm pain. Hand paresthesia ulnar distribution. Mobility is getting worse." The specialist also noted degenerative changes on the worker's CT scan of her neck. The worker was diagnosed with a strain and radiculopathy vs lower trunk plexus.

A WCB medical advisor reviewed the worker's file on April 25, 2014. The WCB medical advisor opined the mechanism of injury was unlikely to cause significant disabling injuries. The medical advisor further opined the workers current symptoms are unaccounted for by the workplace incident.

On April 30, 2014, the worker was advised by the WCB that her claim was accepted for a workplace accident that occurred on March 17, 2014; however, the WCB was not accepting any time loss or medical treatment costs. The WCB advised that they were unable to determine that the worker sustained any injuries as a result of the workplace accident.

The worker submitted further medical information including reports from her treating physician and physiotherapist on February 15, 2015. The WCB reviewed the medical information and advised the worker on March 6, 2015 that there was no change to their earlier decision to accept her claim for a workplace accident on March 17, 2014 but they were unable to determine that she sustained any injuries.

On August 29, 2017, the worker once again submitted further medical evidence including reports from her treating healthcare providers, referral letters and copies of letters to the worker regarding federal disability programs. The worker was advised by the WCB on September 27, 2017 that the information provided did not change the previous decisions on her claim.

The worker was advised by the WCB on December 28, 2017 that the new medical information submitted by her on November 22, 2017 had been reviewed and there was no change to the decisions of April 30, 2014, March 6, 2015 and September 27, 2017.

The worker's representative requested reconsideration of the WCB's decisions to Review Office on March 8, 2018. The worker's representative provided that as the worker's treating healthcare providers had imposed the restriction on the worker due to the accident, the worker suffered a loss of earning capacity. The worker's representative noted the worker's sports medicine specialist had provided a letter on September 11, 2017 listing the worker's injuries suffered as a result of the workplace accident and opined: "All disorders are currently active and involve primarily the right side of her body. They have a significant negative affect on every aspect of her functional ability. She is unable to return to any work secondary to the ongoing conditions noted above. There is no indication when or if she will improve."

On April 18, 2018, Review Office advised the worker that in addition to the issue of the payment of wage loss and medical aid benefits beyond March 17, 2014, the issue of whether or not the claim is acceptable would also be reviewed. The employer provided a submission on April 19, 2018 and the worker's representative submitted information on the additional issue of claim acceptability on April 24, 2018 and a response to the employer's submission on May 2, 2018.

Review Office determined on May 4, 2018 that the worker's claim was not acceptable. Review Office accepted the evidence that the worker "stumbled", but there was no medical evidence to support that she sustained an injury. Review Office further accepted the WCB medical advisor's April 25, 2014 opinion that there was no conclusive medical evidence that the worker suffered an injury and without an injury, the worker's claim is not acceptable.

The worker's representative filed an appeal with the Appeal Commission on June 12, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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, 

(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.

WCB Policy 44.05 addresses Arising Out of and in the Course of Employment states:

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 Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

Worker’s Position

The worker was assisted by a worker advisor, who provided a written submission and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker stated that she was on a two-step ladder behind a door, reaching to retrieve a box off a top shelf. She fell off the ladder with the box in her hands. As she fell, her shoulder hit the door and her elbow hit the door knob. She stated that she fell on the floor on her right knee, with the box still in hand.

Following the incident, the worker sought medical attention for right-sided injuries. The medical report from that visit confirms a report of right sided pain down the back, right shoulder, right arm and leg. Naproxen and Tylenol were prescribed. The worker indicated that she had no prior right shoulder or right-sided pain complaints.

The worker did not accept the descriptions of the incident given by the employer’s representative or the witnesses, wherein they claimed she did not fall, because from where they were standing they could not have seen the accident.

The worker submits that there is no doubt that a workplace accident occurred, for which medical attention was sought immediately for right sided injuries, and that she suffers on-going pain and limitations as a result.

Employer’s Position

The employer was represented by the Manager of the facility in which the worker was employed. The employer took the position that the incident did not happen as reported by the worker and the claim was false/exaggerated. The employer’s representative agreed that the worker was on a step-ladder, that the worker lifted a box from a top shelf and that she stumbled coming down off the ladder. However, the employer’s representative, who was holding onto the door handle, stated that the worker did not hit the door with much force because it barely moved, and denies that the worker fell and hit the floor. Once off the ladder, the worker placed the box onto a table and returned to her desk. Three other individuals were in the room at the time but nobody offered to help the worker or asked if she was “okay” because there was no incident which would have prompted them to do so.

The employer noted that the worker was on light duties at the time due to an existing medical condition and that she had continual back problems and was scheduled for further surgery.

The employer called two witnesses, one of whom had been in the room at the time of the incident and the other immediately outside the door of the room.

The first witness said that (due to where he was standing) he did not see the worker step off the ladder. However, he saw the door move although not enough to cause concern. He did not see the worker fall on the floor. He did not recall having extended his hand to assist the worker. He did not hear anybody in the room comment on the incident and was surprised to learn that there was a need to report it.

The second witness was outside the room but had a partial view of the worker at the time of the incident through the crack between the door and the door frame. She saw the worker awkwardly step off the ladder, after which the worker walked over to the desk. She did not see the worker hit the door hard, saying it might have moved a little bit, nor did she see the worker fall on the floor. Nobody helped the worker because it was not necessary to do so. The worker walked past her in order to return to her desk.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained 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 all of the evidence, on file and as presented by the parties and witnesses at the hearing, the panel is satisfied, on a balance of probabilities, that the worker suffered an injury in the course of her work duties, when she stumbled coming off the step-ladder, resulting in a mild strain or sprain to her right shoulder and neck areas, consistent with a low force contact with the door. On a balance of probabilities, the panel preferred the evidence of the employer's representative and witnesses that the worker did not hit the floor, with her knee or otherwise.

The worker reported many symptoms which did not appear to be related to the mechanism of injury. For example, it is the panel's position that the accident could not have resulted in crushed cartilage in her right knee as the worker suggested at the hearing. No injury to her wrist or elbow was identified when the worker initially sought medical attention, nor was there a reporting of ankle pain or injury. X-rays taken on the date of the injury showed moderately severe patella femoral joint space narrowing with associated marginal spurring in her right knee; mild facet joint arthropathy in her cervical spine; and her lumbosacral spine showed moderately severe intervertebral disc space narrowing at the L5-S1 level with associated marginal spurring. These findings suggest that the worker suffered from a pre-existing condition or conditions.

While the panel found that the worker did suffer an injury, the panel was unable to relate many of the worker’s medical conditions to the accident which resulted in a mild strain or sprain.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an 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.

Panel Members

K. Gilson, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Gilson - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2019