20054048, 2005/10/04

In the matter of an appeal under Section 21 of the

Workplace Health, Safety and Compensation Commission

Act, S.N.B. 1994 c. W-14

APPEALS TRIBUNAL
DECISION

Date of Hearing:

Date of Decision:

Decision

Decision of the Appeals Tribunal:

The appellant is appealing the January 21, 2005 decision, upholding the previous decision
of December 8, 2004 to disallow his claim as it had been determined that it was not a
reasonable medical probability that his condition(s) arose out of his employment and that his
claim therefore did not meet the requirements of the Workers’ Compensation Act as having
arisen out of and in the course of employment. He was further advised that his claim had
also been denied based on section 16 and subsections 44(6) and 44(10) of the Workers’
Compensation Act.

INFORMATION CONSIDERED

The following material was presented to, reviewed and considered by the Appeals Panel:

•
Appeal Record dated May 16, 2005, with memorandum of May 31, 2005 (7 pages). Explanations provided during the hearing by: − The appellant’s spouse, a witness; − The appellant's representative, a workers’ advocate; − The employer, represented by its bookkeeper; − The employer’s representative, an employers’ advocate.
RATIONALE/CONCLUSION

The appellant signed a Report of Accident or Industrial Disease on November 19, 2004,
stating that he had suffered a “repetitive injury” affecting his “arms, back, legs, neck” as a result of
his work activities on a dairy farm, where he had been employed for a reported 18 ½ years.
The appellant referred to himself as a farm labourer, while his work activities that caused his
injury or injuries were noted to include “forking hay, manure, straw. Hooftrimming cows feet Pushing
cows. Handling bales of hay and straw (square and round) Kneeling down on cold surfaces (fixing gutter cleaners, silo unloaders)” [sic] [pages 4–5 of the Appeal Record]. There was a further reference on an evidently attached paper to “Lifting and handling feed bags Working alone a lot with break downs, because nobody around to help, even if it required help” [sic] [page 6 of the Appeal Record]. The appellant was examined by Dr. Rudy Stocek, who signed his First Physician’s Report of Accident or Occupational Disease on November 17, 2004, but indicated a consultation date of January 3, 2002. Dr. Stocek referred to the appellant’s complaint of being struck in the head by a heavy weight in December 1987 and “since then has had progressive neck & back pain w/ arm paresthesia + pain”[sic]. Dr. Stocek reported objective findings of “Tender over neck & lower back w/ [illegible word] spasm, ↓ sensation + power arm” [sic]. Dr. Stocek diagnosed “DDD C spine // chronic mechanical LBP // cervical radiculopathy” [sic]. Dr. Stocek prescribed rest and physiotherapy, and recommended modified work or hours because of “Some upper extremity limitation” [page 7 of the Appeal Record]. Dr. Stocek had previously faxed on November 4, 2004 a series of 12 Physician’s Progress Reports to the Workplace Health, Safety and Compensation Commission of New Brunswick (the Commission), with consultation dates between January 3, 2002 and August 17, 2004 inclusive. Those Physician’s Progress Reports were signed on September 17, 2004 or October 8, 2004, and dealt with one or more of the appellant’s areas of complaint noted on the First Physician’s Report described above [pages 8–19 of the Appeal Record]. The appellant was examined on August 25, 2004 by rheumatologist Dr. James Henderson, who stated he could “find no evidence here for any underlying inflammatory arthritis”, but who believed that “a lot of his discomfort is simply related to putting an excessively heavy load on his body with resulting strain”. Dr. Henderson recommended that the appellant find another occupation with less strain on his body, and prescribed hospital physiotherapy [pages 20–21 of the Appeal Record]. The appellant was examined on October 8, 2004 by physiatrist Dr. Bruce Poole, who reviewed the appellant’s history, stating: I understand some years ago he had an injury to his neck and he has ongoing neck pain. For a couple of years he has also been complaining of pain in the shoulders, elbows, wrists with daily numbness and tingling diffusely in both hands. These aches and pains seem to be activity related and there is muscle pain between the joints as well. He also has a long history of pain in the low back radiating into both buttocks and down both thighs to the knees but seldom below. He seems to have a fair degree of knee pain as well with deep bending. He denies paresthesia in the legs. [page 22 of the Appeal Record] Writing to Dr. Stocek, Dr. Poole summarized his findings in these terms: I think the primary problem is he is developing some degenerative changes in the neck, low back and knees particularly and this is aggravated by doing a lot of heavy work. He is considering looking for lighter work and getting out of dairy farming which I think is appropriate. You may wish to try him with Losec or Nexium along with Celebrex to see if he can tolerate this. I would continue the Elavil. [page 23 of the Appeal Record] Dr. Poole continued with his report, stating that nerve conduction studies indicated “a moderate degree of bilateral carpal tunnel syndrome” [page 24 of the Appeal Record]. Dr. Stocek also completed Physician’s Progress Reports for examinations on October 26, 2004 [page 25 of the Appeal Record] and November 4, 2004 [page 26 of the Appeal Record], both times indicating increased symptoms and marking that the appellant could not then return to his full duties nor modified work/hours. In November 2004 the Commission wrote to the appellant and to the employer to get more information concerning the claim [pages 27–30 of the Appeal Record]. The employer replied on November 29, 2004 with the appellant’s wage information up to and including the week ending October 22, 2004 [page 32 of the Appeal Record], and enclosed a letter objecting to the claim and to the appellant’s assertion that he had to do work alone when he required assistance. The enclosed letter by the representative of the employer went on to state: In March, 2004 [the appellant] was informed that we would be selling the Milk quota and dairy cows. At that time we were milking an average of 50 - 53 dairy cows. In July, 2004 we sold 30 milking cows leaving 20 cows to be milked. On October 25, 2004 [the appellant] was told that he would be laid off in two weeks as the remainder of quota and cows would be gone by the end of November. On October 26, 2004 [the appellant] came to see us and told us he was put off work by doctor’s orders and would be on sick leave beginning immediately. I issued [the appellant] his record of employment for Employment Insurance on Oct. 29, 2004 with his last week’s pay and a bonus. The work required of a dairy herdsman is a physical job. [The appellant] did not tell us that he was physically unable to do his job nor did he ask for time off due to a physical inability [The appellant] was informed 7 months in advance that the dairy herd would be sold and that his job would be coming to an end. His weekly wage did not change even though his work was reduced from milking 50 cows down to 20 cows the first of July. [The appellant’s] last day of work was October 26, when he came for his ROE on Oct. 29 he told me he had chronic pain in various parts of his body. [The appellant] brought me a Report of Accident from WHSCC on Nov. 12 and at that time he told us he had pain in his groin, arm, shoulder, back and knees. While he was employed with us we were not aware of these problems, nor do we feel that his job is solely responsible for his condition which seemed to worsen after he was through working for us. If he had been in such severe pain while working for us he should have taken it upon himself to realize that physically he was unable to do the job and found other employment. [sic] [pages 34–35 of the Appeal Record] On December 8, 2004 the Commission wrote to the appellant to state that his claim had been disallowed “in accordance with Sections 7(1), Section 16, as well as Sections 44(6), and 44(10) of the Workers’ Compensation Act” [sic]. The Commission letter stated that the claim had been reviewed by both a medical advisor and an adjudicator, and that the appellant had failed to file the claim within one year as required under the Workers’ Compensation Act (the Act); that he had not reported the accident to the employer until October 29, 2004, contrary to subsection 44(6) of the Act; that the employer was ‘prejudiced’ by the delay in the reporting of the appellant’s condition, as referred to in subsection 44(10) of the Act; and that the medical advisor “felt that the widespread non-specific aches and pains are not reasonably attributable to your employment based on present information” [pages 37–38 of the Appeal Record]. After further discussions and correspondence, the Commission wrote to the appellant on January 21, 2005, upholding its December 8, 2004 decision to disallow his claim, and noting that his 1987 claim had been reviewed. The writer stated in part that “It is still felt that it is not a reasonable medical probability that your condition(s) arose out of employment” [page 44 of the Appeal Record]. On February 21, 2005 the workers’ advocate wrote to the Commission adjudicator to request that the appellant’s claim be accepted. The workers’ advocate pointed out that subsection 7(5) of the Act, having to do with aggravation of pre-existing conditions, was evidently not considered. The advocate also argued that although the appellant had been diagnosed with pain (on January 3, 2003), “the relevant date for purposes of s.16 is the date of the medical reports (August and October, 2004) which identify his condition as work-related”. The advocate argued further that in fact the appellant had advised the employer of his condition and “that he specifically discussed the specialists’ reports with the employer”. The advocate dismissed the notion of employer prejudice in a situation such as this, with a gradual worsening of symptoms at work that the appellant, his attending specialists, and the employer all acknowledge to be physically demanding. The advocate also disagreed with the conclusion that the appellant’s symptoms could not be identified as work-related, as “It certainly seems on the surface that given the length and the nature of the employment that “widespread non-specific aches and pains” would not be unexpected”. The advocate suggested that subsection 7(2.1) “establishes that the standard to apply is a preponderance of evidence” [pages 46–47 of the Appeal Record]. On February 21, 2005 the workers’ advocate wrote to the Appeals Tribunal to file the appeal in this matter [page 48 of the Appeal Record]. The Commission subsequently assigned an investigator to report on the facts of the claim. In the view of this Appeals Panel, the matters brought out in the investigator’s report dated April 20, 2005 [pages 54–60 of the Appeal Record] did not resolve anything of substance to the appellant’s claim, as there were differing viewpoints on several details that were not central to the issue of whether or not the appellant’s condition was work-related. These differing viewpoints were mostly in connection with matters already raised in earlier discussions and correspondence, regarding notification to the workers by the employer of its intention to sell its milk quota and cows, and also with respect to what medical information the appellant may or may not have shared with the employer in the period leading up to his eventual layoff in October 2004. The appellant was examined once more on April 15, 2005 by Dr. Henderson, who observed that “Unfortunately, he appears to be evolving into a fibromyalgia chronic pain state”. Dr. Henderson began his report by stating: I reviewed this 41-year-old gentleman whom I have seen on several occasions now for a variety of discomforts. We have documented that he has cervical degenerative disc disease at C5-6. A recent CT scan indicates that there is some neuroforaminal encroachment at C5-6 on the right. He also has documented lumbar degenerative disc disease at L4. [page 6 of addendum] At the hearing, the employer was represented and opposed the appeal, arguing that it was not reasonable to attribute the appellant’s various symptoms and conditions to his employment, and that Dr. Henderson’s recent report mentioning the development of fibromyalgia may have been accurate in describing the appellant’s overall symptomatology. As such, this would constitute ‘evidence to the contrary’ that ought to be weighed in making a determination on the claim under subsection 7(2.1) of the Act. The employer cited a passage in Dr. Poole’s October 8, 2004 report, “He is currently awaiting physiotherapy but I am doubtful that this will be helpful given his generally good physical condition from the hard work he does”, and believed that contradicted the notion of a cumulative strain injury. The employer also believed that the appellant was trying to blame the work for his condition, but did not really come forward with his medical information until after he was advised in October 2004 that his job would soon be terminated. The appellant’s position at the hearing was that his health was gradually deteriorating at least since early 2003, with the numerous reports by Dr. Stocek in the following 21 months or so explaining the progression of his condition, and the reports of Drs. Henderson and Poole suggesting degenerative conditions aggravated by his work. The appellant stated that he had wanted to remain at his work as long as possible, as this was his life’s employment and what he had been trained for in his native country before emigrating to Canada. He knew that from the employer’s perspective his only option was to find another job, so there was no point in pressing the matter of his declining health until after his job was gone anyway. The appellant had very good attendance at his job, missing very little time over the years. He had received illness-injury benefits from Employment Insurance after his layoff from the employer, and had since then cashed in some or all of his RRSP’s. He was now applying for Canada Pension Plan Disability benefits, with Dr. Stocek having filled out the required medical reports for that purpose. He told the Panel that he felt very incapacitated at the time of the hearing, and had doubts that his health would permit him to retrain for less physically demanding work. He stated that his lower back and legs were his most serious problem currently, and that “Fibromyalgia will ten-fold that pain”. In determining this appeal, the Panel concluded that the claim should be allowed as an aggravation under paragraph 7(5)(a) of the Act for those conditions in relation to C5-6 and L4 identified by Dr. Henderson in the first paragraph of his April 18, 2005 letter, as cited earlier in this decision. The hard physical work was the most likely cause of the aggravation of those conditions, in the view of this Panel, there really being no evidence to the contrary. There was no evidence that the appellant suffered “any disability affecting the worker in the worker’s employment before the accident”, thereby classifying this aggravation as one covered under paragraph 7(5)(a) rather than paragraph 7(5)(b) of the Act [page 114 of the Appeal Record]. In the view of this Panel, the fibromyalgia described by Dr. Henderson was “evolving” and appeared to develop after the other more specific conditions identified in the Appeal Record. The Panel also determined that the appellant’s claim was a just one, and ought to have been allowed, as permitted under section 16 of the Act, notwithstanding the Commission’s reference in policy 21-105 ‘Application for Benefits and Statute of Limitations’ to a limited number of factors or criteria that might justify such a determination [page 97 of the Appeal Record]. In any event, the appellant received in 2004 ‘New medical or scientific evidence’ from Drs. Henderson and Poole, as suggested by the workers’ advocate, and this would be sufficient to satisfy that criterion. The Commission’s reliance on the provisions of subsections 44(6) and 44(10) of the Act in order to disqualify the appellant’s claim must also fail, as there was no substantial evidence of any material prejudice to the employer on account of the appellant’s ‘failure’ to notify it of the nature of his condition(s) and of its/their relationship to his work. This Panel believes that the Act intended a narrow interpretation of what might constitute employer prejudice, as
there was in this case no suggestion of missing or lost evidence on account of any alleged
delay in reporting. It is unnecessary here to try to weigh the differing accounts of the parties
concerning what notification(s) may have actually taken place in the months prior to the
appellant’s lay-off in October 2004. In the absence of such prejudice, the claim could still be
allowed, in the terms of subsection 44(10) of the Act [page 123 of the Appeal Record].
Therefore, this appeal is accepted. The claim shall be allowed for ‘at least’ the C5-6 and L4
related conditions for all appropriate benefits, including loss of earnings benefits effective
October 26, 2004, when Dr. Stocek directed the appellant off work [page 25 of the Appeal
Record]. The Commission is to make further determinations with respect to the possible
inclusion in the claim of the fibromyalgia, bilateral carpal tunnel and other conditions
identified in the file.
Original signed by:
CHAIRPERSON, APPEALS PANEL
Original signed by:
Original signed by:

Source: http://www.worksafenb.ca/docs/app/20054048.pdf