DECISION NUMBER: 20220013

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: SELF

HEARING: HEARING IN WRITING

HEARD by: H.MOHAMED, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES: NONE

DATED: JANUARY 31, 2022

ISSUES

The worker representative, on behalf of the worker, objects to the Eligibility Adjudicator’s (EA) decision dated January 6, 2016, and reconsideration decision dated March 8, 2021, which denied initial entitlement to upper back, neck, and right upper extremity injuries.

BACKGROUND

On December 2, 2015, the worker, who was employed as a driller for a mining company, was at home getting ready to go into work. While walking to the kitchen, the worker extended their arms above their head to perform a stretch when they felt an immediate onset of pain in their upper back going into their right shoulder, right arm, and fingers. The worker was taken to a local hospital the same day where they were diagnosed with right upper back rhomboid muscle spasms. The worker did not go into work that day of the following day. However, the worker did return to work for their next scheduled shift on December 9, 2015, and performed their regular job duties.

The worker began to request light duties around December 22, 2015, and formally reported a workplace injury to their employer on December 28, 2015. The worker claimed the incident of December 2, 2015 was the result of their regular job duties.

In a decision dated January 6, 2016, the EA denied the worker’s claim on the basis that the injuries did not arise out of and in the course of the worker’s employment. This decision was reconsidered and upheld on March 8, 2021.

As such, the only issue that needs to be determined in this appeal is whether the worker’s neck, upper back and right upper extremity injuries are work-related.

AUTHORITY

Operational Policy Manual

Published

11-01-01 - Adjudicative Process

November 3, 2018

15-02-02 - Accidents in the Course of Employment

October 12, 2004

ANALYSIS

For the reasons that follow, I find the worker does not have entitlement to neck, upper back or right upper extremity injuries under this claim. My reasons for this finding are outlined below.

The worker representative did not make any specific submissions concerning this appeal. Instead, the representative referred me to their previous correspondence dated February 26, 2021, for their position on this issue. From what I understand, the representative’s position is that the worker had no previous upper back, right shoulder or arm symptoms prior to December 2, 2015. The representative attached medical records from the worker’s family physician to support this.

While the employer is participating in this appeal, they also did not provide any submissions for my consideration.

The evidence supports that the worker sustained a sudden and acute onset of upper back and right upper extremity symptoms while at home on the morning of December 2, 2015. In a statement to the EA on January 16, 2016, the worker acknowledged they did not experience any pain or injury when they completed the shift at 5 PM the previous day (December 1, 2015). The worker confirmed they were performing their regular pre-accident job duties that day and there had been no changes in job duties or anything out of the ordinary. The following morning on December 2, 2015, the worker said they woke up at 4 AM and had a cup of coffee and watched TV. As they got up to go into the dining room, the worker said they raised their hands over the head to stretch when they felt a sudden onset of pain in the upper back that radiated into the neck, right shoulder and right arm all the way down to their fingers. The worker said they called in sick that day and went to the hospital. The worker confirmed they began asking for modified duties around December 22, 2015, and sought further medical attention on December 29, 2015. The worker told the EA they felt that it was the repetitive and physical nature of the job duties that cause to their injuries on December 2, 2015.

According to the clinical notes on file, it is clear the worker suffers from significant low back issues that pre-date the workplace accident. It is also worth pointing out that the worker has a permanent neck and right shoulder impairment under a previous WSIB claim from 1999. Under that claim, the worker was granted a 16% Non-Economic Loss (NEL) benefit for their permanent cervical spine impairment and a 7% impairment for the right shoulder. As such, contrary to the worker representative’s submission, the worker has a recognized permanent impairment of the neck and right shoulder that pre-dates the December 2, 2015, incident.

The emergency report dated December 2, 2015, noted the worker was stretching their arm and felt pain in their right shoulder and mid-back. The worker indicated that they had experienced a similar type of pain a few weeks previously and had gone to the chiropractor to “put it back in.” The worker indicated that the pain radiated down the right arm. The physician documented the worker said the pain was so extreme that it made them feel that they were passing out. The physician documented the pain was located in the mid back/scapular region in the area of the rhomboids. The physician documented that the

area was too painful for the worker to touch. Given the worker’s presentation, the worker was prescribed Tylenol #3, Flexeril and Naproxen. The diagnosis provided was muscle spasms right rhomboid.

The worker was seen again at the hospital on December 29, 2015. This time, the worker reported that their previous visit on December 2, 2015, was due to a “work-related” injury. The worker reported the pain had been ongoing since the initial visit. On examination, it was noted the worker reported pain in the right scapular area, right trapezius, and right forearm/hand/fingers. The worker was diagnosed with right shoulder/arm pain and an MRI was requisitioned.

The subsequent MRI of the right shoulder identified moderate to severe supraspinatus tendinosis as well as acromioclavicular (AC) joint degenerative changes resulting in impingement. An MRI of the cervical spine revealed severe left-sided Canal stenosis at C3-C4 along with moderate bilateral C3-C4 foraminal narrowing. There was also evidence of severe right sided C6-C7 foramina narrowing with moderate right paracentral inferior disc extrusion with extensive disc material.

The clinical entry dated February 9, 2016, noted the worker continued to have some pain in the upper back that radiated down the right arm. The worker felt there had been some improvement. Dr. Griffiths reviewed the MRI report and noted the worker was suffering from severe right C6-C7 foraminal narrowing along with right sided cord compression. Dr. Griffiths provided a diagnosis of nerve/disk compression of the cervical spine. According to the chart notes, the worker was referred to orthopedic surgeon Dr. Steyn for a consultation. It is not clear whether the worker ever attended this assessment, as there is no report on file from Dr. Steyn.

In order to determine whether a worker has entitlement to a work-related injury, I am guided by Policy 11-01-01 titled “Adjudicative Process,” which states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed.

There must be an employer, a worker, a personal work-related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history.

The primary issue in this appeal is whether there is evidence to support a personal work-related injury. Policy 15-02-02 titled “Accidents in the Course of Employment” states that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place,

time, and activity indicate that the accident was work-related. This means that if a worker with fixed working hours and a fixed workplace suffers a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, the worker was engaged in a personal activity that was not incidental to the worker's employment.

In this case, the worker was at home when they experienced a sudden and acute onset of pain in their upper back and right upper extremity that necessitated a visit to the hospital and two days off work.

None of the place, time or activity requirements outlined in Policy 15-02-02 has been met. Furthermore, the diagnosis provided at the hospital was muscle spasms of the right rhomboid. This diagnosis is compatible with the accident history of stretching the arms overhead on December 2, 2015. The emergency report also indicated the worker had suffered something similar a few weeks prior to this incident and that they had seen a chiropractor for an adjustment. I note that none of the chiropractor reports were submitted to the claim file. Nevertheless, since the worker did not engage in any activities or duties at work that were different from what they were accustomed to performing, I am unable to correlate the muscle spasms in the upper back on December 2, 2015, to those job duties. It is implausible to believe that the worker’s job duties caused these symptoms when the worker agreed they had no symptoms or pain when they left work on December 1, 2015.

There is also no evidence to suggest the worker suffered a specific injury to the right shoulder or right upper extremity. Rather, the medical evidence indicates that the right upper extremity symptoms appear to be caused by radiating or referred pain either from the neck or the upper back. The MRI of the right shoulder showed degenerative findings that appeared to be long-standing and appeared to be in keeping with the worker’s previous claim under where they were granted a permanent right shoulder impairment.

Concerning a neck injury, I note that the MRI showed severe foraminal narrowing in the cervical spine along with cord compression. However, there is no evidence to suggest that the worker’s sudden rhomboid spasms that occurred on December 2, 2015, were in any way connected to these findings. I note the worker never complained of any neck pain at either of two hospital visits or to Dr. Griffiths following the accident. In my opinion, the findings on the cervical spine MRI are long-standing and degenerative, and would not have resulted in the sudden and acute symptoms the worker experienced on December 2, 2015. Besides, as I have already indicated, the worker has a 16% NEL benefit for their permanent cervical spine impairment under a different claim. If the worker believes that their permanent cervical spine condition has worsened, the worker would have to pursue further entitlement under their previous claim.

Finally, I note there are no medical reports on file that have explicitly related the worker’s sudden symptoms on December 2, 2015, to their job duties. I note that Dr. Griffiths never submitted a Health Professional’s Report to report a work-related injury. Furthermore, I note the worker was referred to an orthopedic specialist for a consultation of the ongoing symptoms but a report from the specialist was never submitted to the claim file.

Based on the totality of the evidence before me, I find the worker’s injuries of December 2, 2015, neither arose out of nor occurred in the course of the worker’s employment. Consequently, I must deny the workers appeal.

CONCLUSION

The worker’s neck, upper back and right upper extremity injuries did not arise out of and in the course of the worker’s employment.

The worker’s objection is denied.

DATED: January 31, 2022

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division