The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on January 19, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker reported to the WCB on June 24, 2019, that they injured their right lower arm in an incident at work on June 17, 2019. The worker noted on the report that they “…started to feel painful on my right shoulder blade and numbness on the fingertips of my right hand. By the time I got home, I could not move my right lower arm. It felt tight and swollen….Throughout the week, I was feeling the same pain and numbness.” The worker attributed the injury to the repetitive nature of their job duties.

On June 24, 2019, the worker attended for an initial physiotherapy assessment. They reported to the physiotherapist that the injury to the right side of their neck and arm occurred while transferring a resident and they were experiencing pain, with numbness and tingling into their right finger tips. The physiotherapist diagnosed the worker with cervical radiculopathy and recommended restrictions of four hour shifts of sedentary duties; no lifting, pushing, pulling, carrying greater than 5 pounds; no repetitive use of right hand; and position changes every 30 minutes.

The worker sought treatment with a sports medicine physician on June 26, 2019. The worker reported to the physician that they had pain in their neck, right shoulder and arm, which began around June 17, 2019, and then their symptoms increased with pain going down their arm, escalating further on June 21, 2019 while holding a resident’s leg. The worker was diagnosed with a cervical scapular strain with referred pain; no clinical radiculopathy was noted on examination by the sports medicine physician. Restrictions of light work with lifting less than 10 pounds; avoid work above chest level and extended reaching; and avoid repetitive activity with right arm were recommended.

The WCB discussed the claim with the worker on July 2, 2019. The worker provided a description of their job duties and advised the WCB that they began experiencing symptoms in their arm at approximately the beginning of May 2019 but did not seek medical treatment. On June 17, 2019, the worker noticed pain in their arm and by June 21, 2019, noticed pain in their right shoulder blade and numbness in the fingertips of their right hand. The worker confirmed there was no increase in their job duties at that time.

On July 3, 2019, the worker was advised their claim was not acceptable. The WCB was unable to establish a causal relationship between the worker’s job duties and their current difficulties. Further, the WCB advised an accident as defined within its legislation could not be established.

The worker’s representative provided a written report from the worker’s treating physiotherapist dated September 4, 2019 and requested the WCB reconsider the decision to deny the worker’s claim on September 12, 2019. The representative noted the treating physiotherapist’s opinion of the repetitive nature of the worker’s job duties confirmed the worker was injured at work and their claim should be acceptable. On December 5, 2019, the worker was advised the additional medical information had been reviewed but there would be no change to the earlier decision.

The worker’s representative requested reconsideration of the WCB’s decisions to Review Office on December 20, 2019. In their submission, the representative provided a copy of the incident report from the employer, noting the worker reported the workplace accident on June 24, 2019 and stated the medical information from the worker’s treating healthcare providers supported the worker’s difficulties occurred as the result of an incident at work.

Review Office found on March 19, 2020, the worker’s claim was not acceptable. After reviewing the worker’s job duties and the information provided by the worker, Review Office determined that while the worker used their arms and hands throughout the day to perform similar tasks, the tasks were not continuous and did not occur several times per minute and therefore, did not consider the worker’s job to be repetitive. Further, Review Office found the differing in reporting by the worker of how the mechanism of injury occurred to be inconsistent and the worker appeared uncertain as to how they developed the reported difficulties. Review Office noted the evidence on file by the worker was that they developed difficulties for a period greater than a month and by June 21, 2019, those difficulties made performing their job duties difficult. As such, Review Office found those difficulties were not causally related to the worker’s job duties and their claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on July 13, 2020 and a teleconference hearing was arranged for January 19, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies established by the WCB’s Board of Directors.

Subsection 4(1) of the Act provides that where a worker is injured in an accident, the worker is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Subsection 1(1) of the Act defines “accident” as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intention 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 Board Policy 44.05, Arising Out of and in the Course of Employment provides assistance on determining whether an accident arose out of or in the course of employment. The Policy 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 the employment.

In other words, the injury must in some way be connected to the nature, conditions, or obligations of employment and while the worker was performing work duties or an activity incidental to employment.

Worker’s Position

The worker was represented by a labour relations officer at the hearing.

It was the worker’s position that the claim ought to be accepted. The worker stated that the incident occurred on Friday, June 21, 2019, when she was assisting wound care on a patient’s foot by lifting the patient’s leg with both hands. By the end of the day, she felt pain in her right shoulder blade and numbness to her fingertips, as well as swelling.

The worker said she sought medical attention two days later, on Monday, June 24, 2019, with a physiotherapist. She was diagnosed with a cervical strain and tendinopathy. The physiotherapist indicated that she could return to work, but with restrictions. On June 26, 2019, she was seen by a sports medicine physician who diagnosed scapular strain. The sports medicine physician also indicated that the worker could return to work with modified duties. The worker stated, however, that the employer was not able to provide modified duties. She therefore remained off work for 2 months until the employer was able to accommodate her. On August 12, 2019, she was able to successfully begin a gradual return to work plan.

The worker denies that there was any delay in reporting the injury to her employer or seeking medical attention. She says she reported the injury to her employer the same day as she attended for physiotherapy. She says that although she waited two days to see if the symptoms would resolve on their own, in her view, this was not a delay and the injury was reported promptly after it occurred. Although the injury occurred on a Friday and was reported the following Monday, she submitted that this was nonetheless still well within the required timeframe for reporting injuries.

The worker also denied any inconsistencies in her symptoms. The worker explained that although she may have noticed some pain and other symptoms prior to the workplace injury, the symptoms were minor and she self-managed the pain. It was only on June 21, 2019, after lifting a patient for a dressing change, that she really felt acute pain and distress that she could not manage on her own. She also indicated that although there was a reference to her attendance at a walk-in clinic following the injury, that was for a completely unrelated matter and had no bearing on her work-related injury.

The worker therefore submitted that her claim ought to be accepted.

Employer’s Position

The employer was represented by an advocate and a WCB Coordinator.

It was the employer’s position that the appeal should be dismissed. The employer submitted that there were conflicts in the description of the injury itself, in the mechanism of injury, and the diagnosis.

The employer noted that despite the worker’s allegation that the injury occurred at work, she was able to continue working without complaint for the balance of her shift and did not report the injury to the employer until 2 days later. Further, the injuries about which the worker complained pre-dated June 21, 2019 and were injuries about which she had been complaining since at least May. It did not follow, therefore, that the injury was an acute injury sustained at work. The employer further noted that although the worker complained of the repetitive nature of her work as a factor in the injury, the actual injury was not a repetitive stress injury. Causation, therefore, was not established in the mechanism of injury. Finally, the employer observed that a one-time activity involving lifting a patient’s leg was unlikely to result in the type of injury sustained by the worker.

Consequently, and while the employer had empathy for the worker, the employer submitted that the necessary evidence of a link between the workplace incident and the injury were lacking. As such, the appeal should be dismissed.

Analysis:

The issue before the panel is whether the worker’s claim is acceptable. For the worker to succeed, 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 employment. For the reasons that follow, the panel is able to make that finding.

Based on a review of the evidence before us, including both the evidence on file and the evidence presented at the hearing, the panel is satisfied that, on balance of probabilities, the worker suffered a workplace injury which arose out of, and occurred during, the course of her employment on Friday, June 21, 2019 when she was assisting with a patient’s wound care.

The worker described the type and nature of the work she was performing. She also described the symptoms that she observed later that evening. She was very clear about the event. Although she had experienced pain and discomfort prior to the workplace accident of June 21, 2019, the earlier symptoms that she had experienced were minor in comparison and she was able to manage the symptoms with self-care. On June 21, 2019, by contrast, the symptoms were acute.

After waiting the weekend to see if the symptoms would resolve on their own, the worker sought medical treatment with a physiotherapist. She also reported the injury to her employer. The physiotherapist diagnosed cervical strain and rotator cuff tendinopathy. He observed her to be complaining of neck pain as well as numbness and tingling in her shoulder, arm and hand. He further commented that the worker had presented to the clinic in “a very acute and irritable stage of her injury…” and that “…typically, symptoms this acute would be related to a specific mechanism of injury, rather than repetitive strain.” He anticipated that recovery from this type of injury was typically 4 to 6 weeks. The worker subsequently attended a sports medicine physician who diagnosed scapular strain with referred pain and recommended treatment with physiotherapy. Both the physiotherapist and the physician felt the worker could return to work on restricted duties. The employer, however, was unable to accommodate the restrictions.

Based on all of the foregoing and a review of all of the evidence, the panel finds, on a balance of probabilities, that although the worker may have had prior pain and shoulder complaints, the worker suffered an acute strain injury as a result of workplace activities that occurred on June 21, 2019. The panel finds that the reporting of the injury was consistent, the injury was reported promptly and there was no delay in reporting. The worker’s recovery timeframe was consistent with the type and nature of the injury sustained. Although the worker would have been able to return to some form of restricted duties following the injury, the employer was unable to accommodate the worker.

In the circumstances, the panel finds that the claim is acceptable.

The appeal is therefore allowed.

Panel Members

K. Wittman, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of March, 2021