Decision #148/21 - Type: Workers Compensation


The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A teleconference hearing was held on May 26, 2021 to consider the worker's appeal.


Whether or not the claim is acceptable.


The claim is not acceptable.


On August 26, 2020, the worker submitted a Worker Incident Report to the WCB advising of injury to their neck and right shoulder and arm in an incident at work on August 21, 2020, reported to the employer on August 24, 2020. The worker reported “I think I got whiplash operating the bob cat (sic) from Wednesday Aug 19 to Friday Aug 21”, and explained the delay in reporting as occurring because the incident happened at the end of the day and the “…pain came a little later.” The worker further outlined that: “There are times I drive the bob cat (sic). I was driving it from Wednesday to Friday last week. There is uneven ground and a lot of bouncing. There is no seat belt in the bob cat (sic). There is a bar I pull down so it can operate. I was driving the bobcat about 8 hours each day.”

When the worker sought medical treatment from a sports medicine physician on August 24, 2020, they reported right shoulder/arm pain and neck stiffness that woke them from sleep two days previously and was progressively worsening. The worker described the pain as “…sharp constant pain” located at the deltoid muscle, that began at their neck. The sports medicine physician noted the worker’s description of decreased grip strength in their right arm, pain radiating from their neck to their shoulder and arm, and intermittent sharp non-shocking pain. The physician noted a normal examination of the worker’s neck with a negative Hawkins’ and empty can tests for the worker’s right shoulder, decreased sensation over the right deltoid and decreased right wrist extension. The sports medicine physician diagnosed right C6 radiculopathy and a cervical disc protrusion, recommended restrictions and referred the worker to physiotherapy and an MRI study. An x-ray taken August 24, 2020 indicated mild degenerative changes at the acromioclavicular (“AC”) joint of the worker’s right shoulder, straightening and slight reversal of the cervical lordosis, and mild narrowing of the C4-C5 and C5-C6 disc spaces noted as degenerative changes. The WCB provided the restrictions to the employer on August 26, 2020.

On August 31, 2020, the employer advised the WCB the worker had contacted their supervisor to advise they would not be in on August 24, 2020 as they had been injured at work; however, the employer advised the worker did not report being injured at work the previous week. The employer further advised they could accommodate the worker. When the WCB contacted the worker on September 9, 2020, the worker confirmed that on August 21, 2020, they were driving the bobcat all day, 10 to 12 hours for a normal shift. The worker also confirmed they contacted the employer early on August 24, 2020 to advise they were seeking medical attention and would not be in that day. On August 25, 2020, the worker brought the restriction note to their employer and at a meeting on August 26, 2020, they were terminated from the employment.

On September 1, 2020, the assessing physiotherapist noted the worker had decreased strength on their left side due to pain, positive compression/distraction testing and lots of muscle guarding around their right shoulder/neck. The physiotherapist diagnosed cervical spine radicular pain from nerve root irritation and recommended the worker remain off work with restrictions.

A WCB medical advisor reviewed the worker’s file on September 24, 2020 and agreed that the worker’s diagnosis was a right sided cervical radiculopathy, which, the WCB medical advisor opined was “…associated with heavy lifting, particularly above shoulder height, smoking, increasing age, and heavy axial loading of the cervical spine.” The medical advisor also noted that “Many cervical radiculopathies are of spontaneous onset in relation to degenerative changes in the cervical spine, frequently with the patient awakening with a sore neck and/or shoulder/upper limb in the absence of trauma.” The WCB medical advisor concluded the medical information on file did not support the worker experienced a trauma or injury to their cervical spine at work on August 21, 2020 and as such, “…a workplace causation of [the worker’s] cervical radiculopathy has not been demonstrated.”

On September 30, 2020, the WCB advised the worker their claim was not acceptable as it could not determine that the worker suffered an accident arising out of or in the course of their employment. The worker requested reconsideration of the WCB’s decision to Review Office on October 15, 2020. The worker noted that their job duties required lots of upper body strength and further noted their treating healthcare provider supported their injury was a result of their job duties.

On November 5, 2020, Review Office found the worker’s claim was not acceptable, relying upon the opinion of the WCB medical advisor. Review Office also noted the worker’s later description of the heavy nature of their job duties was different from what was initially reported making it difficult to establish a connection between the worker’s job duties and the injury.

The worker filed an appeal with the Appeal Commission on November 23, 2020. A teleconference hearing was arranged for May 26, 2021. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On December 2, 2021, the appeal panel met again 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 Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) 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...

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.

Worker’s Position

The worker appeared in the hearing and provided a submission on their own behalf. The worker also offered testimony in response to questions from members of the appeal panel.

The worker’s position is that the injury to their right shoulder, arm and neck occurred as a result of the work duties they engaged in between August 19-21, 2020, which included operating a bobcat on rough surfaces most of the day on August 21 as well as preparing, pouring and leveling concrete on August 19 and 20. The worker’s position is that these work duties caused the injury and therefore the claim should be acceptable.

The worker described to the panel that their symptoms appeared overnight and that they woke with pain early on August 22, 2020. The worker treated the symptoms over the next two days with pain medication they had on hand and on Monday morning, August 24, 2020, attended a sports medicine clinic for treatment. The worker recalled being advised they had “blown a disc” in their neck with symptoms of shooting pain down their right arm to their hand. On advice of the treating physician, the worker did not return to work that day, but went in the next day to provide the sick note and restrictions. The worker further indicated that they worked on August 25, 2020 and then were called in by the employer the next day and fired.

The worker advised the panel that they did not complete an incident report initially as they were uncertain how to fill it in as the symptoms did not arise at work. The worker stated their belief that they were fired because of the injury sustained.

The worker also confirmed to the panel that they still have some ongoing symptoms in their neck but that the numbness from their right shoulder to hand is reduced.

On questioning by members of the appeal panel, the worker provided further description of their work activities in the days leading up to the onset of symptoms. They advised that they were operating the bobcat all day on August 21, 2020 on very unlevel ground, but on most days would operate it between 5-8 hours of the day, depending on the stage of work. The worker stated they could not pinpoint when the injury occurred but confirmed they did not engage in any other activities after work on August 21. The worker also described doing heavy concrete work on August 20, and both preparation work and bobcat work on August 19.

The worker confirmed to the panel that they had been doing this sort of work for a long time, but never experienced such symptoms previously. The worker described their work as stressful and indicated they work hard in their job.

The worker further advised that they believed they told the employer that the injury was work-related and noted that despite having a doctor’s note, they went to work on August 25, 2020.

In sum, the worker’s position is that their injury and symptoms arose out of and were caused by the work duties they engaged in during the three days leading up to the onset of symptoms. For this reason, the claim should be acceptable.

Employer’s Position

The employer did not participate in the appeal.


The question for determination on this appeal is whether the worker’s claim is acceptable. For the panel to grant the worker’s appeal, we would have to find that the worker was injured as a result of an accident arising out of and in the course of the worker’s employment. As outlined in the reasons that follow, that panel was not able to make such a finding and the worker’s appeal is therefore denied.

The panel considered and reviewed the medical reporting in respect of the worker’s injury. On initial assessment by the sports medicine physician on August 24, 2020, the diagnosis offered was of C6 radiculopathy and cervical disk protrusion. The x-ray of that date revealed mild degenerative change at the worker’s right AC joint as well as mild narrowing at C4-C5 and C5-C6 in keeping with degenerative changes. On initial physiotherapy assessment on September 1, 2020, the treating physiotherapist diagnosed cervical spine radicular pain from nerve root irritation and noted new left-sided symptoms, as well as continuing right-sided pain in the worker’s shoulder and neck.

The MRI imaging from September 27, 2020 revealed “[m]ultilevel degenerative changes…most pronounced at C5-C6 where there is moderate spinal canal narrowing as well as severe right foraminal narrowing for the exiting C6 nerve root.” The findings also included a very shallow disc bulge at C3-C4, a shallow posterior/right paracentral disc protrusion that minimally indents the thecal sac at C4-C5, a posterior/right paracentral and foraminal disc protrusion at C5-C6 and a shallow posterior disc bulge at C6-C7.

The panel considered whether there is any evidence to link the medical findings of multilevel degeneration and multilevel disc bulging or protrusions to the worker’s job duties. The panel noted the September 24, 2020 opinion of the WCB medical advisor outlining that right sided cervical radiculopathy is associated with a variety of causes, including heavy lifting about shoulder height, smoking, increasing age and heavy axial loading of the cervical spine, but may also arise spontaneously “…in relation to degenerative changes in the cervical spine, frequently with the patient awakening with a sore neck and/or shoulder/upper limb in the absence of trauma.” The medical advisor went on to note that the information on file at that time “…would not support that [the worker] experienced any trauma/injury to [their] cervical spine at work on

August 21, 2020” and further noted that the exacerbation of symptoms, including new left-sided symptoms as noted in the September 1, 2020 physiotherapy report, “…in the absence of provocation in the workplace is not medically accounted for.”

There is no evidence before the panel of any traumatic injury or other acute event occurring in the course of the worker’s job. This was confirmed by the worker, who rather described a gradual onset of symptoms and concluded it must have been related to their workplace activities in the previous days, as there was no other explanation. The panel finds that there is no evidence of anything unusual in the worker’s description of their work activities that would account for the condition of the worker’s back as revealed by the September 27, 2020 MRI study and the August 24, 2020 x-ray.

The panel also considered whether there was any evidence to support that the worker’s degenerative cervical spine condition was aggravated by the worker’s job duties. The WCB medical advisor indicated in an opinion dated October 22, 2021 that it is medically indeterminable whether the worker’s back condition as noted in the September 27, 2020 MRI could have been aggravated by the worker’s job duties but confirmed that the C5-C6 changes noted in the MRI are degenerative and pre-existing, noting these were already evident in the x-ray of August 24, 2020. The panel also noted that the worker did not, on first seeking medical attention, relate their condition to their work activities; rather, the first medical reporting indicated the worker “denies any trauma or injury” and there was no report to the WCB resulting from that assessment as would have been expected had the worker reported that the injury was related to their work. Further, there is no evidence of any significant change in the worker’s duties such as might account for development of, or exacerbation of pre-existing cervical spine symptomology. As the worker testified, this was the kind of work they had been doing for years. We therefore find that there is a lack of evidence to support a finding that the worker’s pre-existing degenerative back condition was aggravated by the work duties undertaken in the days prior to the development of cervical spine and shoulder symptoms.

The panel accepts that such symptoms can develop spontaneously in relation to degenerative changes, as outlined in the September 24, 2020 WCB medical advisor opinion. Given the lack of evidence of any significant change in job duties and or traumatic event, and in the context of the worker’s multilevel degenerative back condition as revealed by the September 27, 2020 MRI study, the panel finds that this is the most likely explanation for the onset of the worker’s symptoms.

The panel is therefore satisfied that the evidence does not support, on the standard of a balance of probabilities, a finding of any causal relationship between the worker’s job duties undertaken August 19-21, 2020 and the injury sustained. Further, there is no evidence to support that the job duties caused or resulted in any aggravation of the worker’s pre-existing, degenerative cervical

spine condition. Therefore, we determine that the claim is not acceptable. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of December, 2021