The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 6, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 6, 2000.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The claimant filed an application for compensation benefits claiming injury to his right elbow and upper limb which he related to his occupation as a labourer/machine operator in December 1997.

In a letter attached with the application form, the claimant's spouse wrote that the claimant slipped on a piece of meat and hurt his right arm in December 1997. He then asked two foremen for a green card to be filled out but both times his requests were ignored. In January 1998, the claimant noticed pain in his right arm and the plant nurse noticed a lump on his elbow. When seen by the family physician, the claimant was diagnosed as having bursitis and he was placed on medication. The claimant still continued to work. On January 16, 1998, his right hand swelled up at work and the plant nurse sent him home. He immediately went to the doctor who took him off work. In February 1998, the claimant was referred to a specialist and his first appointment was March 11, 1998. Forms were filled out for private insurance.

The claimant's spouse stated that the claimant did not file for compensation before this as no doctors would say whether his condition was caused by work or not. The claimant was on short term disability from January 1998 until January 1999. He then filed and was accepted for long term disability until the end of May 1999.

The employer's report of injury stated that they had no record of any work related incidents being reported. The claimant did receive weekly indemnity insurance benefits for one year, then long term disability benefits for 5 months. The claimant was cut off from insurance and has since claimed it was work related.

In a facsimile forwarded on October 20, 1999, to the WCB, the employer provided records from the employer's health unit's daily log. This showed that the claimant contacted the health unit nine times between January 6, 1998, and January 30, 1998, for right elbow complaints. The employer noted, "We have no record of any work-related incident(s) being reported involving the right arm in December 97 or January 98."

In a letter dated October 25, 1999, the claimant was advised by Rehabilitation and Compensation Services that there was insufficient evidence provided to establish a relationship between his right hand, elbow, arm and shoulder difficulties and an accident arising out of and in the course of employment. In making this decision, Rehabilitation and Compensation Services considered the following factors:

• medical information indicated that the claimant's condition had worsened and in fact now involved his shoulder, as well as his right elbow, hand and arm, even though he had not worked at all since January 1998.
• the employer had no record of the claimant reporting a work related injury;
• the claimant claimed through Insurance Services since January 1998 and at no time did he state that this was a work related injury, nor did he ever indicate that he had a specific fall at work;
• the claimant was in receipt of insurance benefits from January 1998 though to May 1999. At no time did he indicate that this problem was work related;
• one would expect that the claimant's condition would improve after being off work for a period of time. Instead, his condition seemed to get worse, considering the initial problem was only with the right elbow.

On December 2, 1999, a union representative appealed the above decision, on behalf of the claimant, to Review Office. The union representative stated that it was unfortunate that the two supervisors, who were notified of the claimant's fall on his right elbow, ignored him and did not file an accident report. Also, nothing was entered into the health unit's log book until December 1997 when the incident happened. He continued working after the incident and did not pursue the issue when the local pain subsided. With respect to medical information, the union representative referred to the following reports:

• the claimant's first visit to the health unit was January 6, 1998. At this time he had swelling over the elbow joint and was referred to a physician who diagnosed right olecranon bursitis.
• the report to the company's private insurance carrier dated January 22, 1998, indicated it was unknown whether the claimant's condition was due to injury or sickness arising out of the patient's employment.
• the report to the company's private insurance carrier dated December 17, 1998, indicated that the patient never had the same or similar condition. "It is unfortunate, that Mr. [the claimant] was not more insistent with his attending physicians, in pointing toward the incident that happened in December of 1997 at his place of work."
  
• a September 8, 1999, report from an occupational health physician reflected the accurate sequence of events since the claimant's incident in December of 1997. According to the union representative, this physician makes a connection between the claimant's elbow injury and his present condition. The occupational health physician stated, "In reviewing the history of this earlier 1997 elbow injury, I suspect that he recruited greater use of his upper limb and shoulder muscles performing his repetitive right arm work activities to compensate for weakness and work related forearm discomfort following his elbow injury which lead to secondary myofascial dysfunction in the proximal muscles of the upper limb."

The union representative concluded by saying that the claimant had been unable to work since January 16, 1999. He made a serious error by not pursuing a WCB claim after the incident in December of 1997 or immediately after his first visit with the health unit on January 6, 1998. The claimant had no problems with his right hand and arm prior to the incident of December 1997. On a balance of probabilities, one had to conclude that the claimant was suffering as a result of his work related incident.

On December 17, 1999, Review Office confirmed that the claim was not acceptable. Review Office indicated that the worker provided no history of accident when he attended the employer's health unit in January 1998. He explicitly told the physicians when he attended in the early part of 1998 that there was no known cause for the development of his elbow problems. Given this information, it was evident to Review Office that the claimant had been specifically questioned regarding whether or not he had sustained any injury by accident and his consistent response was that he had not. Review Office was satisfied that the alleged at-work accident has not been substantiated and the worker's claim had been correctly denied based upon Sections 17(5) and 19(2) of the Workers Compensation Act (the Act).

On January 19, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

As the background notes indicate, the claimant filed a claim for compensation in September 1999. He maintained that he had injured his right elbow following a slip and fall at work in December 1997. However, the claimant did not present his claim to the WCB at this time. Instead, he proceeded to apply for wage loss benefits through his company's private insurance carrier. It was not until his long-term disability benefits ended that the claimant approached the WCB for coverage. The treating physician diagnosed the claimant's condition as olecranon bursitis.

According to the nursing log book maintained by the employer's occupational health nurse, the claimant contacted the health unit 10 times in January 1998 either personally or by telephone with respect to his elbow problems and/or his application for weekly indemnity insurance benefits. The employer's representative pointed out that there was no record in this log or the worker's personal file "about any work-related accident that he would have reported in November or December of 1997 or in January of 1998."

After having considered all of the evidence including the testimony at the hearing, we find that there was not an accident arising out of and in the course of the claimant's employment, which resulted in a compensable injury. Therefore, the claim is not acceptable and the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of April, 2000