Decision #73/22 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on June 16, 2022 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
The claim is not acceptable.
Background
The worker filed a Worker Incident Report with the WCB on June 9, 2021 reporting an injury to their neck and upper back, which the worker indicated occurred at work on May 27, 2021. The worker described:
I was looking down at a patient, and this intense sensation started at my neck. I had a real bad headache at the time. Occurred approximately 2:15pm.
The worker advised they had missed work on May 31, 2021 due to their symptoms and had returned to work on June 8, 2021. The worker further advised they had sought treatment with their chiropractor on May 31, 2021 and would be attending for an initial physiotherapy assessment on June 11, 2021. The worker noted their current difficulties were a constant dull ache on both sides of their neck, and their upper back above their shoulders, which they self-treated with analgesics and ice.
On June 10, 2021, the WCB contacted the worker to discuss their claim. The worker confirmed that on May 27, 2021, they were standing, with their head angled towards a resident and just felt pain and tension in their neck, there was no movement. They continued working their shift that day and advised they did not report the incident at the time as they thought it was just a tension headache. The worker described their symptoms as a wave of a bad headache, with significant muscle tension on either side of their cervical spine and experienced upper back pain the day after the incident. The worker advised the WCB they were currently experiencing stiffness and tenderness in their neck and upper back, with tension and a dull ache and they continued to self-treat with analgesics and icing. The worker further advised they returned to their regular duties on June 8, 2021.
A Chiropractor First Report for the worker's assessment on May 31, 2021 was received by the WCB. It noted the worker's reporting of an intense headache that was improving with treatment and neck pain that was aggravated with bending and a diagnosis of a cervicogenic headache and neck pain. A restriction of limiting bending of the head and neck was recommended. The worker attended for an initial physiotherapy treatment on June 11, 2021. The worker described a "Sudden neck spasm while looking down" for the incident and reported a constant bilateral headache that increased when looking down and got better with ice and rest. The physiotherapist provided a diagnosis of "possible hypermobile mid-cervical spine with increased tone sternocleidomastoid scalene" and noted the worker was performing their regular duties at reduced hours.
The employer provided the Employer's Accident Report to the WCB on June 15, 2021 and confirmed the worker's reporting of the mechanism of injury on May 27, 2021. On June 16, 2021, the employer noted their concern with the worker's claim to the WCB indicating there was no reported incident related to the worker's sudden headache.
On July 14, 2021, the WCB advised the worker their claim was not acceptable as a relationship between their current difficulties and their job duties could not be established. The WCB noted the worker's job duty of talking to a resident was a normal activity and that activity "…did not pose an increased quantity of risk to cause injury." On July 19, 2021, the worker provided additional information to the WCB noting their belief the length of time spent with their head angled downward with prolonged neck flexion led to the development of their headache and tension and as such, they should be entitled to wage loss and medical aid benefits. On the same date, the worker was advised the information was reviewed but there would be no change to the earlier decision.
The worker requested reconsideration of the WCB's decision to deny their claim to Review Office on August 30, 2021. In their submission, the worker presented the argument of a relationship between the development of their symptoms and their job duties. The worker described needing to have their head in a position of prolonged neck flexion for multiple job duties on a regular basis. The worker confirmed their injury was sustained at work, while performing some of their job duties and as such, believed their claim should be acceptable and they should be entitled to wage loss and medical aid benefits.
Review Office determined the worker's claim was not acceptable on October 12, 2021. Review Office found the worker's argument that their job duties were repetitive and involved prolonged neck flexion would have resulted in worsening difficulties over time not sudden neck pain without a known cause. Review Office further found there was not an identified hazard of the worker's employment that led to an injury and an accident arising out of or in the course the worker's employment could not be identified.
The worker's representative filed an appeal with the Appeal Commission on December 21, 2021. A videoconference hearing was arranged.
Reasons
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 provisions of the Act in effect as of the date of the worker’s accident are applicable.
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.
What constitutes an 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, Arising Out of and in the Course of Employment states, in part:
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.
Worker’s Position
The worker was assisted by a worker advisor, who made a presentation to the panel. The worker and the worker advisor responded to questions from the panel. The worker’s position was that their job duties required them to hold their head at an angle approximately eighty-percent of their normal working day and, although there was no triggering event, maintaining long-term neck flexion is a hazard which resulted in an injury. In particular, on May 27, 2021, the worker’s duties involved more than the usual amount of time looking down and, as a result, the worker suffered an injury.
Employer’s Position
The employer’s representative participated in the hearing on behalf of the employer. The employer’s position was that there was no accident or injurious activity as required by the Act. There was no hazard or chance event, just the performance of activities in the normal course of the worker’s job duties. The worker’s pain was sudden onset and not progressive worsening which might have been expected if the general repetitive nature of the worker’s duties was the cause of the worker’s neck pain.
Analysis
The panel questioned the worker about their job duties and the positioning required to undertake those duties, particularly those duties performed on May 27, 2021. The worker described how job duties were performed, the length of time and extent of neck flexion involved. The worker confirmed that, on May 27, 2021, other than a discussion with a resident which was somewhat longer than usual, their job duties were in the normal course.
According to the Act and WCB policy, for a claim to be accepted, there must be an “accident” both “arising out of” and “in the course of” the performance of the worker’s job duties. In order to meet the test of “arising out of” the worker’s job duties, the injury must be associated with a “hazard” of employment. The panel does not accept the worker’s assertion that the head movements and neck flexion involved in the worker’s duties would constitute a hazard as required by WCB policy. Having reviewed all of the evidence submitted by the worker, the panel was unable to find that there was a specific incident or chance event that directly caused injury to the worker, thus no accident as defined by the Act.
Accordingly, the panel finds that, based on the evidence, the worker has not suffered an accident as required by the Act and the worker’s claim is not acceptable. The worker’s claim is dismissed.
Panel Members
K. Gilson, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2022