Decision #38/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A reconvened hearing was held on March 7, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on April 12, 2017 indicating she injured both her shoulders, her neck and her left chest that she related to her duties as a housekeeper on June 13, 2016. She reported feeling pain in her left chest area initially on June 13, 2016 then pain in her shoulders and neck on June 17, 2016. She reported the incident to her employer on June 17, 2016.
On June 14, 2016, the worker was seen by a physician at a walk-in clinic. The physician's report stated that the worker reported she had neck and upper back pain for two weeks and that there was "no injury/trauma". The physician diagnosed her with a strain and recommended physiotherapy.
The worker was seen by a sports medicine specialist on September 6, 2016, in follow-up to her appointment at the walk-in clinic. The treating sports medicine specialist noted:
46 year old previously healthy female with posterior neck pain.
Pain started insidiously, approximately 2 months ago.
No preceding trauma or other inciting event.
The worker's sports medicine specialist diagnosed the worker with "non-ominous, non-neurogenic pain which is related to muscle strain" and recommended she continue with her home stretching exercises.
At her initial physiotherapy treatment on February 21, 2017, the worker reported shoulder, neck and chest pain that developed due to her job duties and described her discomfort as "heavy" and "tight" at her neck, head and shoulders. The physiotherapist diagnosed the worker with "Poor posture and myofascial pain in shoulders/neck causing limited mobility to same" and recommended modified duties with no heavy lifting and no repetitive movements, especially overhead.
On May 2, 2017, the WCB advised the worker by letter that her claim was not acceptable. The letter noted that although the worker had advised the WCB that her shoulder, neck and chest pain were the result of an injury she sustained at work on June 13, 2016, she did not indicate a specific event that occurred. It was further noted in the letter that in a discussion with the WCB on April 13, 2017, the worker indicated that she did not inform anyone at her work that an incident had occurred, only that she required time off work. The WCB also advised that there was no medical evidence to support that the worker had sustained an injury on June 13, 2016.
The worker's treating sports medicine specialist provided a letter in support of the worker on June 15, 2017. The sports medicine specialist noted that the worker had been seen for a neck strain/sprain, which resulted from the job duties performed daily by the worker. The worker's treating sports medicine specialist further noted that the worker reported her injury to her supervisor but "was advised not to apply for WCB benefits." The worker's treating sports medicine specialist stated that the worker was capable of modified duties but the employer could not accommodate those duties and suggested she apply for disability.
On August 17, 2017, the worker was advised by the WCB that the submission by her treating sports medicine specialist was reviewed along with her file. However, the decision to not accept her claim remained unchanged.
The worker's sports medicine specialist wrote a further letter to the WCB on September 1, 2017 reiterating that the worker had reported her injury to her employer but was "encouraged by her workplace to apply through disability rather than WCB." The WCB contacted the employer on September 22, 2017 and was advised that they were not aware that the worker had injured herself as she advised her employer that she was not well and needed time off to rest, not that an accident had occurred. The worker's supervisor stated that the worker had "just disappeared stating she was sick."
The WCB further advised the worker on September 22, 2017 that the information from her treating sports medicine specialist was reviewed and investigated however, no evidence of claim suppression was found. The worker was again advised that the original decision of May 2, 2017 to not accept her claim was unchanged as no causal connection between the worker's employment and her current symptoms was found.
On December 22, 2017, the worker's representative requested reconsideration of the WCB's decision to Review Office. The worker's representative argued that as the worker's treating sports medicine specialist had said the worker's symptoms were related to her job duties, her claim should be accepted.
Review Office upheld the WCB's decision that the worker's claim was not acceptable on January 26, 2018. Review Office found that the information provided closest to when the workplace accident was reported to have occurred to be the most reliable. The worker reported to the physician at the walk-in clinic on June 14, 2016 that her difficulties had started two weeks prior and there was no injury or trauma that caused it and no work-related injury was reported. The worker's treating sports medicine specialist recorded, on September 6, 2016 that her difficulties had started approximately two months prior, with no trauma or other inciting event and again, made no reference to an injury related to the worker's job duties. Review Office further found that there was no evidence that the worker's neck and upper back difficulties were related to her employment and, as such, her claim was not acceptable.
The worker's representative filed an appeal with the Appeal Commission on July 9, 2018. An oral hearing was held on January 30, 2019 and reconvened on March 7, 2019.
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,
(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 states, in part, as follows:
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.
Hearing January 30, 2019
The worker attended the hearing with her daughter who made a submission on her behalf. The worker and her representative answered questions from the panel. The worker's representative provided the following documentation which the employer agreed could be admitted as exhibits:
1. Note from Physiotherapy clinic dated June 24, 2016.
2. Letter from physician dated November 24, 2016.
3. Letter from Employer dated January 18, 2017.
4. Note from Physiotherapy clinic dated July 5, 2016.
The worker's representative submitted that:
• their main concern is that the worker's muscle pain, neck pain and chest pain arose from her employment.
• the worker could not get sick by staying at home, so it was her work that caused her condition.
• the worker performed heavy duties at work.
• the worker's physician found that her injury arose from her work.
• the worker told the employer that she was cleared to work light duties but the employer advised that he did not have light duties.
• when she was able to perform regular duties, the employer did not offer her a job.
The worker's representative stated:
So according to her, like her injury was caused of like doing heavy, because it was really busy during that time because they had a hockey team and the rooms were really, like the hotel was really busy and the rooms were messy. And at that time the vacuums they had were really heavy, I think they changed after that. Yes, that's the reason why she got all the pain. Yes, like when she was cleaning the tubs and everything, because it was busy so they had to do it really fast.
Regarding a return to work, the worker's representative stated that when the worker felt well enough to return to work, she asked the employer give her a job but the employer refused.
In answer to questions the worker advised that:
• she is good now
• she is no longer attending physio
• she started work in June 2014
She advised that she worked all week and that on Friday:
…put on the laundry after. So go to back, I'm home, so all the muscle is tight. So first my shoulder and neck pain, so Friday is evening starting that all the body is tight and pain.
The worker confirmed that she was working with 2 other staff. She could not remember how many rooms she cleaned that day.
When asked about a note from her doctor dated June 14, which indicated that she had been having neck and upper back pain for two weeks, the worker denied that she had pain before.
As the panel questioned the worker, it became evident that the worker was not able to fully explain her position to the panel. The panel subsequently adjourned the hearing.
Reconvened Hearing March 7, 2019
The hearing reconvened on March 7, 2019 with an interpreter to assist the worker in explaining her position and answering the panel's questions.
The worker's response to the questions, for the most part were provided through the interpreter, but are noted to be the worker's answers.
The worker agreed that the hearing should continue from the point it ended on January 30, 2019.
In reply to questions, the worker confirmed that she always worked with a co-worker when cleaning the hotel rooms, but that they would perform different cleaning duties in the room. She did not work with the same co-worker every day.
In reply to a question the worker explained, that the employer told her to apply for E.I. benefits. The interpreter stated:
She requested the owner "to give me some light job," but the owner was not able to give her light job, and then the owner instructed her to apply EI.
The worker completed the application form for EI on-line with the assistance of her daughter. The worker confirmed that she had an x-ray of her chest and shoulder, but she could not recall the date. The worker's daughter confirmed that the worker's family doctor provided a report for EI. She also advised that their dealings with EI were online, they never received a call from EI.
In reply to a question about the family doctor's report which indicated that "complains of neck and upper back for two weeks, no injury trauma", the worker, explained that she had pain, but she still wanted to work, so she went to work and on the 18th she was having difficulties.
The interpreter explained further that:
She just went to the doctor for her regular check-up and said that, "I'm having pain", on 13th of June.
The interpreter stated:
She did said that she is working there as a housekeeping. She didn't complain that she got injured at the work. She just went for a regular check-up.
The worker confirmed that she did not see the family doctor for neck or back problems prior to June 14.
In reply to a reference by the sports medicine specialist on June 15, 2017, that the worker said the injury was the result of pulling sheets repetitively as part of her regular duties. The worker explained that while there were two workers in the room, the co-worker was cleaning the washroom, and she was removing sheets and making the beds. She demonstrated the actions involved.
The worker's daughter noted that she also had to lift mattresses while making beds.
It was explained that:
She and the co-worker will enter the room, and then they divide the work. Like most of the times she does the bedding only, and the other co-worker just do the vacuum cleaning and the wash, washing, that's it. She is just doing the bed cleaning, changing the bedsheets, whole day.
The worker advised that she did some vacuuming and that the vacuum was very heavy. The worker also did laundry which involved putting dirty sheets in a washer and then in a dryer.
In reply to a question about a reference to cleaning rooms occupied by a hockey team the worker said that this was hectic.
The worker advised that the laundry carts were heavy and the vacuums difficult to use.
The employer was represented by its president. He said that the business employs many staff of all ages from 18 to 74. He said the business looks after every employee before anything happens, it is "… a very friendly family oriented atmosphere in our hotels."
The employer representative advised that unlike some hotels, their hotel assigns 2 to 3 staff to work together cleaning a room.
The employer said that he heard from other staff, the next day that the worker is not coming to work because she's tired, she needs some rest. He said he heard after some days the worker wanted to try some light work. He agreed and she was assigned to do sheets in the laundry. He advised that:
And she went in the laundry, she stayed there a few hours and she said, no this is too heavy. And then she left and then she didn't come back and then she said, no, I need some rest because I feel tired and all that.
The employer representative advised that the worker took medication, but that he was not told what the medication was.
Reconvened Hearing March 7, 2019
In response to the worker's assertion that the hotel was busy during the period that the worker claimed to be injured, the employer representative stated 22 rooms were assigned to the worker and her co-worker for June 12. He stated that another team of two staff were working and available to help if the worker called them. He acknowledged that the hotel was busier on June 13.
The employer representative disputed the worker's claim that the laundry carts were heavy and the vacuum cleaners were difficult to use. In particular the carts with the supplies and clean linens was heavy.
The employer disagreed with the information provided by the specialist regarding the worker's job and the cause of her injury.
The employer representative advised that the worker never reported a workplace injury. He asked that the worker's appeal be declined.
The worker is appealing the WCB decision that her claim is not acceptable. For the worker's appeal to the successful, 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 her employment, or in other words, that injuries were causally related to performance of her job duties. The panel is not able to make that finding.
The panel sought information from the worker and the employer at the hearing, regarding the worker's job duties. The panel was unable to identify any evidence that the worker's job duties included overhead work or duties that were repetitive and would result in the worker's medical condition. It is the panel's understanding that duties that are overhead and/or repetitive are common causes of neck/upper back type of injuries.
The panel notes the June 14, 2016 note from the family doctor which indicated, in part:
c/o neck and upper back pain for 2 wks, no injury/trauma (emphaisis added)
o/Posture within normal limits
Mild muscle spasm over upper back and post neck ms.
EENT - normal
The lack of a reference to a workplace injury is significant. The decision to apply for EI benefits and not to apply for WCB benefits is not consistent with the worker's position that she was injured at work.
The panel has considered the opinions of the sports medicine specialist who examined and treated the worker. The panel notes the clinical note dated September 6, 2016 is similar to the June 14 note referenced above. The note indicated, in part:
46 year old previously healthy female with posterior neck pain.
Pain started insidiously, approximately 2 months ago
No preceding trauma or other inciting event
The panel finds that these early medical reports do not support the worker's position that she sustained a workplace accident. The panel attaches greater weight to the reports provided at the time the worker first reported the injury. The panel finds such reports to be more reliable than reports provided months later.
Based on the foregoing, 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 her employment. The worker's claim is therefore not acceptable.
The worker’s appeal is dismissed.
A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of April, 2019