Decision #08/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on November 22, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The employer filed an Employer's Accident Report with the WCB on September 10, 2021, reporting the worker injured his neck and back in an incident at work on June 14, 2021, which was reported to the employer on September 2, 2021. The employer reported the worker indicated that when he lifted his tool bag to put it on his shoulder, he heard a pop, and aggravated his neck and back.
The worker provided the WCB with his Worker Incident Report on September 13, 2021. The worker noted that on June 14, 2021, he was "…picking up my tool bag which weighs about 90lbs, flipped it over my shoulder and felt a pop in my back between my shoulder blades up into my neck. It was a sharp piercing pain. I finished out my day and went home…and it just hasn't got better."
On June 28, 2021, the worker attended an initial chiropractor assessment. The worker advised the treating chiropractor he flipped his tool bag onto his back and was now experiencing mid-back pain, mainly on the right side, and felt stiff and sore, with tightness between his shoulder blades. The chiropractor provided a diagnosis of thoracic spine versus cervical, thoracic spine sprain/strain and noted the worker was capable of working medium level work duties.
On July 7, 2021, the worker saw a second chiropractor, who noted the worker's description of "…flipped a tool bag backwards, behind me, sudden C/T [cervical/thoracic] pain," and diagnosed the worker with a cervical thoracic sprain/strain and disc irritation.
On July 30, 2021, the worker was seen by his treating family physician. In the report of that visit, the physician noted that the worker reported a sudden onset of back pain radiating down his left arm after picking up his tool bag. The worker complained of mid-back pain between his shoulder blades and sharp pain radiating down to his left hand. The physician diagnosed the worker with C5 nerve root impingement.
An MRI of the worker's cervical and thoracic spine, performed August 6, 2021, identified no significant thoracic spine abnormality. The MRI further showed that at the C4-C5 level "…there are mild or at most mild to moderate disc degenerative changes. There is left posterolateral endplate degenerative spurring with an associated left posterolateral disc protrusion. No significant central spinal stenosis. There is compression of the left lateral aspect of the thecal sac and may well be some compression of the left C5 nerve root…Degenerative spurring in the Luschka joint on the left results in fairly marked left-sided intervertebral foraminal stenosis."
The worker attended a virtual follow-up appointment with his family physician on September 2, 2021, complaining of pain between his shoulder blades and the base of his neck. The physician recommended conservative treatment and time off work for two to three weeks, to be reassessed after September 19, 2021. On September 7, 2021, the worker's family physician referred him to a physiatrist for further assessment.
The worker attended a virtual appointment with the physiatrist on September 14, 2021. In his report to the worker's family physician, the physiatrist noted the worker reported he felt a pop in his shoulder blade approximately three months previously when picking up a work bag, and treatment was initially managed through his chiropractor. The physiatrist noted the worker had pain in his right shoulder blade, and had experienced burning and tingling in his chest, as well as occasional pain down his left arm from the shoulder into the medial arm and into his fingers. The physiatrist reviewed the August 6, 2021 MRI and noted that "There is some stenosis at C3-C4 making for a possible left C4 root lesion. At C4-C5, he has a fairly large disk herniation with likely compression of the left C5 nerve root." The physiatrist noted that the worker presented with pain focus of the right scapula, which could not be explained by the disc herniation noted on the left side, and that he explained to the worker that the left-sided disc herniation could not be responsible for his right scapular pain. The physiatrist recommended an in-person review, and nerve conduction study.
On September 15, 2021, the WCB contacted the worker to discuss his claim. The worker advised the WCB that the date of accident noted on his report was an estimated date as he was unsure of the exact date, but confirmed it occurred sometime in that week in mid-June 2021. The worker further confirmed the mechanism of injury, noting he slung his tool bag, weighing approximately 90 pounds over his shoulder, went to stand up, and felt a "pop" in his mid-back and a burning sensation in his neck. The worker also confirmed he had not reported the incident to any supervisor or co-workers prior to September 9, 2021, when he advised his supervisor. On September 20, 2021, the WCB spoke with the worker's supervisor, who confirmed he was not aware of a workplace incident prior to September 2, 2021, noting the worker may have commented that his back was sore, but if so, he had not related it to a specific workplace incident.
On September 21, 2021, the worker underwent electrodiagnostic studies with the treating physiatrist. The physiatrist noted that the studies demonstrated no evidence of ulnar neuropathy at the wrist or elbow on either side; no evidence of median neuropathy of the wrist on either side; and no evidence of permanent nerve damage affecting the left C5, C6 or C7 myotome. The physiatrist opined that:
I am not sure how this disc herniation on the left side of his neck connects with his right scapular pain, if at all. Certainly he seemed to have a workplace injury that connects with this acute right scapular pain onset when picking up his tool bag and having that pain persist. I am just not sure how it connects to the disc herniation, which should cause left sided neck and scapular pain and arm pain.
The treating physiatrist further opined that the worker was not a candidate for surgery and recommended he avoid heavy lifting and sustained awkward neck posture with respect to the disc herniation.
At a further follow-up appointment with his family physician on September 27, 2021, the worker reported intrascapular back pain and numbness down his left arm to his hand. The physician noted exquisite tenderness to the back intrascapularly, that a herniated disc was found on the MRI, and that the electrodiagnostic studies were normal. The physician recommended the worker avoid heavy lifting and sustained neck posture, and that he remain off work for 13 weeks.
On September 27, 2021, the WCB advised the worker that they were unable to accept his claim. The WCB advised that due to the delay in reporting the incident to the employer, no ongoing complaints made to co-workers, and a delay in seeking medical treatment, a relationship between the worker's back difficulties and a workplace accident could not be established.
On November 15, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker provided a detailed explanation of the June 14, 2021 incident and noted he continued to work and did not report the incident as he is strong-willed and dedicated to his work, and he hoped the injury would get better, but it did not. The worker noted that as he continued to experience discomfort, he sought treatment from his chiropractor, who recommended he seek further treatment from his family physician. On June 3, 2022, the employer provided a submission to Review Office in support of the WCB's decision, and on June 16, 2022, the worker provided a response to that submission.
On June 20, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found the worker's almost 13-week delay in reporting the incident to the WCB, and almost 11-week delay in reporting it to the employer made it difficult to establish the worker sustained an injury on or around June 14, 2021. Review Office also noted that the worker continued to work his full regular duties during those periods of time and delayed seeking medical treatment for approximately two weeks. Review Office further found that the findings from the diagnostic testing conducted by the worker's treating physiatrist did not correlate with the worker's right shoulder and neck complaints. Review Office therefore concluded that they could not establish the worker sustained an injury arising out of or in the course of his employment.
On July 14, 2022, the worker appealed the Review Office decision to the Appeal Commission, and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as June 14, 2021, the applicable legislation is the Act which was in effect at that time.
Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.
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,
(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 184.108.40.206, Pre-existing Conditions, addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of that Policy is stated, in part, as follows:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The worker was self-represented, and provided a written submission in advance of the appeal which included two additional doctor's notes. The worker made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that he suffered a work-related injury on June 14, 2021, and his claim is acceptable.
The worker submitted that the Review Office failed to take into account all of the information in arriving at its decision to deny his claim. The worker submitted that information was missed or overlooked when the claim was first submitted, including that he had advised that he "…had picked up my work bag, which is about 90 pounds, put it on my left shoulder or flipped it on my left shoulder. It flipped around. I slid it back towards my back which caused my upper body to twist, which then I felt a pop in my mid back that shot pain straight up towards my neck." He had also advised that he went to see a chiropractor a week after the incident, and that he did not report the injury right away as this had happened in the past and was a recurrent injury.
The worker noted that the injury occurred at the height of the COVID pandemic, when everything was locked down, and this hindered his ability to get in for medical treatment and testing, including an MRI. He noted that he did not report his injury to co-workers, in part because he works alone, but also because he was working from home due to the pandemic, with home dispatch; he was only in the office to pick up stock; and there was a company policy at the time of no congregating in the work centre. The worker further noted that he is a very private person, and has never been the type of person to complain or tell everyone what is going on in his life.
The worker submitted that he was working through his pain and difficulties, and noted that if he could have struggled and got through this as he had in the past by seeing his chiropractor, he would have done so. The worker submitted that although he continued working, he was not working at full capacity or doing full duties after he was injured. Light duties were not available to him, but he modified how he did his work as much as possible, to avoid having to go off work. He said he only submitted his claim when his back and neck were not healing and he was taken off work by his doctors.
The worker submitted that the WCB overlooked his original claim, and did not consider the pains he had in his mid back and between his shoulder blades. The worker noted that he did not know about his neck until he had the MRI, which it took 3 months to get.
The worker admitted that he made a bad decision in not reporting the injury to his employer right away, but noted that he did see his chiropractors and advised them he had a work-related injury.
The employer was represented by legal counsel and by its Senior Consultant, Disability Management. Legal counsel provided a written submission, with attached medical discussion paper, in advance of the hearing, and made an oral submission to the panel.
The employer's position was that it was clear from the medical evidence, the history of the worker's claim, and the worker's evidence at the hearing, that there was no causal connection between the worker's ongoing symptoms, the symptoms he reported in the summer of 2021, the diagnosis of cervical disc herniation, and his employment, and his claim is not acceptable.
The employer's legal representative submitted that there were significant delays in this case, including delays by the worker in reporting the incident to the employer and the WCB, and in seeking medical care. The evidence shows the worker first sought medical attention two weeks after the alleged incident. The worker did not communicate a workplace injury to the employer for approximately three months. Multiple medical practitioners to whom the worker said he reported his workplace injury also failed to report to the WCB, although obliged to do so under the Act. It was submitted that these delays led to significant gaps which would impact the WCB's ability to establish an injury occurred or that a specific diagnosis and symptoms flowed from the injury, and were fatal to the claim.
The evidence showed the worker continued to perform his regular duties through to August 27, 2021. The representative submitted that while the worker stated he self-modified his duties, it was unclear how he was able to do so, especially as he indicated he worked alone. The representative noted the worker had said he injured himself by lifting a 90 pound bag which contained his tools. Part of his duties therefore entailed lifting heavy weights which he would have had to do to perform his duties after the injury.
The representative also submitted that the evidence suggests the worker did not know he had a neck issue until after the August 6, 2021 MRI, and the symptoms did not appear until September 2021, or three months after the alleged accident. The representative submitted that the MRI and the September 21, 2021 report of the treating physiatrist support the lack of connection between the symptomatology and the workplace in this claim. The representative asked that the panel attach significant weight to the report of the physiatrist, who opined that he could not link the disc herniation to anything that happened at work. The representative further noted that the medical discussion paper they had provided indicates that neck pain presents acutely very shortly after a traumatic injury, which was not what happened in this case.
The representative asked that the panel disregard the more recent medical documentation submitted to file, which it was submitted demonstrates a change in the nature of the worker's symptomatology, and is based on a history which is contradicted by more contemporaneous medical documentation.
In conclusion, the employer's legal representative submitted that it is possible that something happened to the worker on a specific date at work, but the major issue in the employer's view is that this did not cause the worker to go off work; that it is not related to the MRI results; and that it is not related to the neck and left arm symptomatology. The representative further submitted that the worker wilfully opted out of the system in this case. As a result, it was submitted that the claim is not acceptable, or alternatively, that any claim acceptance should be limited to a minor strain that resolved within the regular healing time periods.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding, for the reasons that follow.
The panel notes that it was confirmed at the beginning of the hearing that the issue on appeal was solely with respect to claim acceptability, and that the panel would not be adjudicating what benefits the worker might be entitled to if the claim were accepted.
The worker described the mechanism of injury in further detail in his submission at the hearing and in response to questions from the panel. The worker noted that:
I had picked up by work bag, which is about 90 pounds, put it on my left shoulder or flipped it on my left shoulder. It flipped around. I slid it back towards my back which caused my upper body to twist, which then I felt a pop in my mid back that shot pain straight up towards my neck….
I picked it up from ground level. So, I bent my knees, arched my back, put it on a kind of grub strap, put it on, stood up and kind of had it sitting on my side. It slid around to the front, so I grabbed it with my left hand because it was on my left shoulder, which I always carried on, and spun it around So, I actually gave a good force to flip it around so I could start bending over to pick up blocks off the ground.
Based on our review of all of the evidence, on file and as presented at the hearing, and the submissions of the parties, the panel is satisfied that the mechanism of injury as described is consistent with the symptoms and diagnoses as reported in the medical reports closest in time to the incident.
In this regard, the panel notes that the worker was treated by two chiropractors, on June 28 and July 7, 2021, respectively, both of whom diagnosed him with a sprain/strain type of injury. At the June 28, 2021 assessment, the chiropractor provided a diagnosis of thoracic spine versus cervical, thoracic spine sprain/strain and noted the worker was capable of working medium level work duties. At the worker's appointment with a second chiropractor on July 7, 2021, the chiropractor diagnosed the worker with a cervical thoracic sprain/strain and disc irritation.
While concern was expressed with delays in reporting the injury to the employer and the WCB, the panel is satisfied that the worker sought medical attention within a reasonable period of time following the incident, at which time he provided a consistent description of the mechanism of injury. The worker indicated at the hearing that he also saw a chiropractor within a week of the injury, and had advised the WCB of this, but it was not noted on the file. In any event, as indicated above, medical evidence on file shows that the worker attended chiropractic assessment and treatment for his injury at least twice within a period of approximately three weeks of the accident.
The panel accepts the worker's evidence that while he continued working following the workplace injury through to August 27, 2021, he was not performing at his full capacity and modified the way he performed his work. When asked what he did in terms of modifications, the worker stated:
I lightened the load of the bag. I was carrying the bag – two bags which…was approximately 90 pounds. I lightened the load…and made more trips. I try to be efficient when I go to do jobs. I was – I had a bucket truck so I could not carry a ladder, so I would use my pocket when I – when I could. Or I would call a coworker to come and help me if (sic) was available. If not, I would try to…struggle through it.
There is no dispute that the worker had back problems prior to the date of the workplace incident. The worker provided several green cards referencing back problems he had experienced on previous occasions. A report from the worker's treating chiropractor received August 3, 2022, further indicates that the worker had originally entered his clinic on April 4, 2021 with complaints of right-sided midback pain, and had referred to ongoing pain that had been occurring on and off since a fall in 1990 from a height of 20 feet. The chiropractor went on to note that the pain which the worker described when he returned to the clinic on June 28, 2021 arising out of the June 14, 2021 accident was more midback pain on his right side, but was higher up in his back and was not his usual region of pain. Based on the evidence, the panel is satisfied that the worker suffered a back injury within the environment of pre-existing conditions or problems as a result of the June 14, 2021 workplace incident.
The panel acknowledges the employer's comments and concerns with respect to the worker's ongoing symptoms and developing symptomatology, but again notes that the only issue which is before us on this appeal is claim acceptability and such further comments and concerns have therefore not been addressed at this time.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment, and that his claim is acceptable.
The worker's appeal is therefore allowed, and the file is returned to the WCB for further adjudication.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
- Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of January, 2023