Public Decisions | The Appeal Commission

Decision #76/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 13, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 13, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In September 1999, the claimant filed a claim for compensation benefits indicating that he developed tendonitis in both elbows due to the repetitive nature of his job as a welder. The date of accident was recorded as June 1, 1999. The claimant indicated that he did not immediately notify his employer of his injury as the problem progressively became worse over time. The claimant stated that he did not seek immediate medical attention until his condition worsened to the point where he felt he could no longer go without treatment.

The employer's report of injury with respect to the claim indicated that there was no record of an injury. On June 1, 1999, the claimant was on workers compensation for a groin injury and did not return to work until June 21, 1999.

A doctor's first report dated September 9, 1999, indicated that the claimant had chronic recurrent left elbow pain, now increasing with new right elbow pain since June of 1999. The diagnosis reported by the physician was a repetitive strain injury.

On October 7, 1999, a sworn declaration was obtained from the claimant. The claimant indicated that he first started to experience left elbow difficulties while working for another company. His duties amongst other repetitive things included bending copper tubing. The claimant indicated he did not seek any medical attention as he thought that it was due to his age or that his joints were wearing out. When he started working with the accident employer in October 1998, the claimant stated that he was still feeling left elbow soreness. The claimant described the duties he performed with the accident employer which included welding, scrubbing welding marks, and grinding/buffing stainless steel restaurant equipment which made his elbow condition worse. In March 1999, the claimant said he began to notice the same type of symptoms in his right forearm.

The claimant advised that he continued to perform his regular duties up until his groin injury in June 1999. He did not report or mention anything to his employer about his arms bothering him prior to the groin injury. This was because he just thought it was a problem with him and he had just started the job and didn't want to start complaining. The claimant said he did not really think it would be considered an "accident". The claimant indicated that he was off work for the groin injury about six weeks. During this time his arms had only improved slightly. When he attended a physician with respect to his groin injury, he told the doctor about the difficulties with his arms. The doctor then said that he had tendonitis and that it was related to his duties and that he should file a claim with the Workers Compensation Board (WCB).

When he returned to regular work duties after his groin injury, the claimant stated that both arms became worse again within the next month. He told a co-worker about his arm difficulties but did not formerly report it to his employer because he thought by taking pills the pain would eventually go away and he did not want to take more time off work after just coming back from the groin injury. The claimant indicated that his last day at work was September 28, 1999 and that he told his foreman he was leaving because he had tendonitis in his elbows and that it was too painful for him to work. When seen by his doctor the next day, the doctor advised the claimant to remain off work and to commence physiotherapy twice per day.

The claimant concluded his statement by stating that his left arm difficulties were related to his duties at his former employer and that his duties with the accident employer had made it worse. He felt that his right arm difficulties were solely related to his duties with the accident employer. He felt that his problems with his right arm were due to the rubbing of the welding marks, scratches and holding the grinder while working with the accident employer.

On October 20, 1999, a WCB adjudicator wrote to the claimant. The claimant was advised that when considering a claim for compensation benefits, a workplace injury must be reported promptly to the employer. The left elbow problems that were experienced by the claimant were long standing and dated back to 1998. The right elbow problems began in March 1999. The adjudicator indicated that the claimant did not report any difficulties with respect to his elbows or make any mention of the problem possibly being work related until the end of September 1999. He/she concluded that an accident could not be established as defined by the Workers Compensation Act (the Act). The adjudicator did not accept the claimant was unaware that suspected workplace injuries were to be reported promptly to the employer given that he had filed numerous compensation claims in the past.

On February 28, 2000, a worker advisor appealed the above decision to Review Office. It was the worker advisor's position that "the claim for benefits should have been accepted because section 1(1) and 4(1) of the Act had been fulfilled and that section 17(5) of the Act had been improperly applied in the adjudication of the claim."

In a decision by the Director of Service Quality and Review Office dated March 24, 1999 (sic), it was determined that the claim for compensation was not acceptable. The Director referred to the statement made by the claimant in which he described certain work duties that had contributed to the strain his arms, i.e. scrubbing welding marks and grinding/buffing duties. The Director was not convinced that these duties were sufficiently repetitive enough in nature to cause the claimant's current diagnosed condition as the duties were performed intermittently and were insignificant in terms of total work time.

On April 18, 2000, the worker advisor appealed the above 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

(b) any

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

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

At the hearing, the claimant gave a very detailed description of the extremely repetitive job duties that he was required to perform for the accident employer. The accident employer confirmed that these duties were accurately described and that they were repetitive. The claimant also testified that his left-elbow difficulties first arose while he was in the employ of his previous employer and that these difficulties continued while he worked with the accident employer.

We find based on the weight of evidence that the claimant has, on a balance of probabilities, aggravated a pre-existing condition, which initially began at the time he was employed with another employer. We further find that the right elbow difficulties, however, began with the accident employer. The claimant's injuries arose out of and in the course of his employment with the accident employer. Accordingly, the claim is acceptable and the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of July, 2000

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