Decision #14/23 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. A teleconference hearing was held on January 10, 2023 to consider the employer's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The WCB received an Employer's Accident Report from the employer on February 11, 2022 reporting the worker injured their neck as the result of an incident at work on February 3, 2022. The employer noted the worker's reporting of a stiff sore neck "…from a pre-existing injury and it became aggravated while operating the rock breaker".
The worker attended for medical treatment on February 7, 2022, reporting "…diffuse neck pain for one week, no history of trauma, no neurological symptoms." The worker advised the treating physician they believed that the job duties involved with their new position caused or aggravated their pre-existing neck condition. On assessing the worker, the physician recorded an unremarkable neurological examination but noted the worker was in pain. The physician provided a diagnosis of cervical spondylosis and completed a Modified Work Form for the employer in which the physician recommended restrictions of no lifting from waist to shoulder greater than 50 pounds, no stair or ladder climbing or bending/twisting repetitive movement and limiting driving to less than 30 minutes, with a reduced 4-hour workday. The physician noted "cervical spine arthritis" on the Form, and that it was an aggravation of a pre-existing injury. The employer acknowledged the worker’s Request for Accommodation on the same date, which the worker had signed on February 4, 2022.
When the WCB spoke with the worker regarding their claim on February 18, 2022, the worker advised of a prior WCB claim for a neck injury approximately 5 years earlier and noted ongoing difficulties since that time. The worker advised that they attend a pain management clinic monthly since the previous injury for pain relief injections. The worker described working the entire 10-hour shift without leaving their machine on both February 2, 2022 and February 3, 2022. The worker stated that on those dates, they were seated forward facing but had to look to the right during the whole shift. The worker described symptoms that include not being able to lift or reach with their arm without burning pain in their neck that radiates into their shoulder, and noted their neck is very stiff making it difficult to turn to look in the other direction. The worker confirmed they had not missed time from work and had been performing modified duties.
The employer contacted the WCB on February 25, 2022 to express concern about the claim, providing a chronology of the worker’s prior claims and injuries and noting the worker had been on modified duties with reduced hours since August 2020. The employer noted the worker was the successful candidate for their new position on December 10, 2021 and worked full, regular duties in that role until this claim was established.
On February 25, 2022, the WCB added medical information from the worker's prior WCB claim to the file including an August 25, 2016 cervical spine x-ray, an October 20, 2016 right shoulder MRI and a March 1, 2017 Neck Pain Disability Index.
The treating physician completed a further Modified Work Form on March 2, 2022 updating the worker’s restrictions to no lifting from floor to waist greater than 25 pounds; no lifting from waist to shoulder greater than 25 pounds; avoid driving; occasional work at or above shoulder level; no operating motorized equipment and limited exposure to heat and cold due to potential side effects from medication. The physician noted the worker was experiencing symptoms due to taking muscle relaxants and recommended continued reduced hours of four hours per shift.
On March 14, 2022, a WCB medical advisor reviewed the worker's file and the worker's previous WCB claim files. The medical advisor noted the worker attributed their ongoing and chronic neck pain to their 2016 WCB claim; however, the review of that file revealed no evidence of a continuing diagnosis. Further, when the worker attended for a call-in examination with a WCB physiatrist on November 29, 2016, the worker reported pain in the right upper inter-scapular area with no documented neck complaints, but the physiatrist found "…no specific pathoanatomic diagnosis was identified. Notably this call in examination was within normal limits, including the neurologic and musculoskeletal components." The medical advisor also noted the 2016 claim was closed on May 23, 2017 when the WCB determined the worker was recovered from the compensable injury. The WCB medical advisor concluded the worker's current neck difficulties were non-specific in nature and were not medically accounted for in relation to the February 3, 2022 incident.
On March 18, 2022, the WCB provided a decision letter to the worker advising that their claim was not acceptable. The worker requested reconsideration of decision to Review Office on April 1, 2022. In their submission, the worker provided specific details of their job duties on February 2, 2022 and February 3, 2022 and noted they performed those duties for 10 hours without breaks, which led to their neck and shoulder difficulties. On May 6, 2022, the employer provided a submission in support of the WCB’s decision.
Review Office determined on May 26, 2022 that the worker’s claim was acceptable. Review Office found the worker was in the course of their employment when they reported increased neck pain on February 3, 2022 and found the employer’s offer of accommodation and modified duties on February 4, 2022 established that an event occurred related to the worker’s job duties, for which they sought medical treatment on February 7, 2022. As such, Review Office concluded an accident took place arising out of and in the course of the worker’s employment.
The employer filed an appeal with the Appeal Commission on August 18, 2022 and a teleconference hearing was arranged for January 10, 2023.
Applicable Legislation and Policy
The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors.
Section 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. The Act defines “accident” in s 1(1) as follows:
In this Act,
"accident", subject to subsection (1.1), includes
(a) a chance event occasioned by a physical or natural cause,
(b) a wilful and intentional act that is not the act of the worker, or
(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,
that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;
The WCB has also established WCB Policy 220.127.116.11, Pre-existing Conditions (the “Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy explains the principles governing payment of compensation for workplace injuries when a worker's pre-existing condition impacts the severity of the workplace injury experienced by the worker or increases their recovery time, or alternatively, when the workplace injury worsens the worker's pre-existing condition. The Policy defines a pre-existing condition as:
“..any medical condition the worker had prior to their workplace injury. Pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can also have an effect on pre-existing conditions. When a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.”
The employer was represented in the hearing of their appeal by their disability management coordinator and by their labour relations superintendent. The disability management coordinator made an oral submission on behalf of the employer and relied upon the written submission dated August 18, 2022 which was provided with the Notice of Appeal. Both representatives of the employer provided testimony in response to questions posed by members of the appeal panel.
The employer’s position, as outlined in their submissions, is that the worker’s claim should not be accepted by the WCB as the evidence does not support that the worker was injured arising out of and in the course of their employment, but rather that the worker experienced symptoms of their pre-existing degenerative neck condition. The employer’s representative noted there was no evidence of any workplace incident and no mechanism of injury to cause the worker’s symptoms, noting that the subsequent reduction in the worker’s duties and hours did not lead to recovery because the worker’s symptoms were not based on any workplace injury or job duties.
The employer’s representative submitted that greater weight should be given to the opinion of the WCB medical advisor than to the worker’s self-report to their physician. Further, the employer’s representative submitted that the WCB should have investigated the additional information provided to Review Office before a decision was made by Review Office so that the Review Office would not rely upon inaccurate and non-factual information in making its determination. Further, the employer’s representative submitted that Review Office incorrectly found that the employer’s accommodation of the worker establishes that the worker was injured as a result of an event or conditions related to the worker’s job duties or workplace.
The employer’s representative noted that the WCB medical advisor reviewed all the evidence and determined that the worker’s difficulties likely arose from their degenerative neck condition, and further, that this is supported by the worker’s lack of recovery or improvement in symptoms with modified duties and hours. The employer submitted that the panel should rely on this opinion.
In answering questions posed by members of the appeal panel, the employer’s representatives noted that the worker’s job duties did not require the worker to operate their machine while leaning forward and to the side as the worker indicated, noting that would be “an ergonomic nightmare and would be untenable for an employee to sit like that. So, they’re absolutely not designed to operate that way.” The representatives further noted that even if the worker needed to be positioned looking to their right out the window, it would have been over a “small portion” of their shift and not throughout, as the worker suggested. Furthermore, the worker would not have been working without breaks as described, noting that refuge stations are available for stretching and breaks, although it is possible the worker chose to eat their lunch in the machine. The employer’s representatives also noted that the worker’s job is considered a sedentary position and that the operators of that machine are not all experienced operators.
The employer’s representative confirmed that on February 2, 2022, the worker was on the first day of their seven-day rotation, having just returned from a seven-day break.
In sum, the employer’s position is that the worker’s claim is not acceptable as the evidence does not support a finding that the worker was injured as a result of undertaking their job duties, but rather that the worker’s symptoms were the result of their pre-existing degenerative neck condition which is not compensable or related to their job duties. Therefore, the appeal should be granted.
The worker appeared in the hearing on their own behalf and provided a brief oral submission to the panel. The worker offered testimony in response to questions posed to them by members of the appeal panel.
The worker’s position is that their pre-existing neck condition was aggravated as a result of their repetitive job duties on February 2 and 3, 2022, which involved the worker spending most of their 10-hour shift leaning forward and looking to the right, and because this happened at work and in the course of doing their work, the claim should be acceptable.
On questioning by members of the appeal panel, the worker described the specific job duties on those dates which they confirmed were not out of the ordinary except that the worker did not take any breaks during those days. The worker noted that they had to lean forward while looking to the right so as to see the area where they needed to direct the mechanism of the machine they were operating and stated that because they were still new in the job, they did not work quickly so that they had to maintain this uncomfortable position for longer periods. The worker explained that they didn’t take breaks except when another operator came to spell them off and they soon learned that this resulted in more work for them on return, so they stopped taking breaks at all. The worker again noted that they are slow in completing their work and therefore they don’t take breaks. The worker noted that they feel pressure from other employees to keep working so that the job doesn’t get too backed up and as a result, they normally eat their lunch while continuing to work.
The worker described to the panel that beginning one month after they receive trigger point pain management injections, their neck tends to tighten up, and they manage these symptoms by taking time to stop and stretch but that by two months after an injection, their symptoms become worse, and they feel their back and neck “locking up.” The worker confirmed their understanding that they would need these pain relief injections every two months for the rest of their life. The worker noted that at some point in January 2022, they spoke with their superintendent to advise that “…my back was starting to get sore and that it was starting to bother me.” The worker stated the employer did not do anything about their complaint.
The worker confirmed that in the first month after the pain relief injections are received, they begin to develop symptoms of stiffness in their upper shoulders and around the shoulder blades, which the worker treats with use of heating pads and stretching. As more time passes from the injections, the worker’s shoulder blade region, especially on the right, becomes more stiff, making it hard to move and the stiffness moves into the worker’s upper neck region. The worker described that eventually, the stiffness turns into a “burn” that “doesn’t stop” until the next series of injections.
The employer’s appeal is with respect to the acceptance of the worker’s claim by the WCB. For the appeal to succeed, the panel would have to determine that the worker did not sustain personal injury as a result of an accident, as defined in the Act to include an event or condition, or a combination of events or conditions, related to the worker's work or workplace. As outlined in the reasons that follow, the panel was not able to make such a determination but rather found that the worker did sustain personal injury as a result of conditions related to the worker’s work and therefore the employer’s appeal is denied.
The evidence before the panel confirms that the worker has a significant pre-existing upper back/neck/shoulder condition that causes ongoing pain and stiffness to the worker in that region, and that is treated with a periodic series of pain relief injections, typically bi-monthly which control the symptoms and permit the worker to maintain their function and continue to work. This is confirmed by the treating physician’s reporting as well as the reporting and notes from the treating pain clinic physician.
The evidence before the panel indicates that the worker started a new position with the employer on December 10, 2021 and that the worker chose to move into this position and participated in training for the first month on the job. Further, the worker’s schedule in this position required them to work 7 days on and 7 days off. The employer’s evidence confirms that the worker started a 7-day rotation on February 2, 2022, following 7 days off. The worker’s evidence is that after working two long days on February 2 and 3, 2022, in which they did not take their allotted breaks because they were struggling to keep up with the workload, they awoke on the morning of February 4, 2022 experiencing significant neck pain and stiffness such that they could not turn their head and therefore spoke with their supervisor to request other duties. The worker arranged to see a doctor on February 7 and worked through to that time in the accommodated duties provided by the employer.
As noted by the employer’s representatives and set out in the medical reporting from February 7, 2022, there was no event or incident that caused an acute injury to the worker’s back and neck. The definition of an accident is not, however, limited to events or incidents resulting in acute injury. The evidence confirms that after the worker engaged in their job duties on February 2 and 3, 2022, they experienced an increase in symptoms of neck pain and stiffness which they described as being different from the symptoms they typically experience as the effectiveness of their pain relief medication injections wanes. There is no evidence of any other event or cause to explain this increase in symptoms, which the worker immediately related to their work on those dates. Although the WCB medical advisor, in their March 14, 2022 opinion comments on the absence of any trauma and no alteration in the worker’s job duties, such evidence is not required for the panel to make a finding that the worker sustained an injury as a result of conditions related to the worker’s work. In this regard, the panel notes that although the worker described having some back-related soreness in January, this did not prevent them from continuing with their work over the subsequent weeks, but after completing their shifts on February 2 and 3, 2022, something changed such that the worker was not able to continue with their regular job duties.
The employer submitted that if the worker aggravated their pre-existing condition through doing their work, it would be reasonably expected that their symptoms would have resolved with rest and a break from those duties. This was also noted by the WCB medical advisor in their March 14, 2022 opinion. In considering this argument, the panel noted that the timing of this injury unfortunately coincided with the waning effectiveness of the worker’s bi-monthly pain relief medication. The worker’s previous pain relief injections were provided on December 17, 2021 and the evidence confirms that the worker was unable to receive their next series of injections until more than three months later, on March 24, 2022. As such, at the time of this aggravation, more than 6 weeks had passed since the worker’s previous injection. The panel does not agree that the subsequent increase in the worker’s symptoms indicates that the worker did not experience an aggravation of their non-compensable pre-existing condition; rather, we are satisfied that the worker’s symptoms did not resolve but continued to worsen after February 4, 2022 at least in part due to the continuing lapse of time since the worker’s last series of pain relief injections and not due to the worker’s work duties and conditions.
The treating physician, on February 7, 2022, described the worker as having sustained an aggravation of a pre-existing injury and the file evidence supports that the worker has history of chronic neck pain for which they receive ongoing and regular medical treatment. The panel accepts that the physician’s description of an aggravation of the worker’s pre-existing condition accurately reflects what occurred and that the evidence supports a finding that the worker experienced a worsening of symptoms related to their pre-existing non-compensable upper back/neck/shoulder condition as a result of their participation in their ordinary job duties on February 2 and 3, 2022.
On the basis of the totality of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker sustained a minor aggravation of their pre-existing non-compensable upper neck and shoulder condition in the course of undertaking their job duties on February 2 and 3, 2022. As such, the panel determines that the worker’s claim is acceptable, and the employer’s appeal is denied.
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 2nd day of February, 2023