The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 28, 2000, at the request of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claim was not acceptable. The Panel discussed the appeal on September 28, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

During his occupation as a production worker on February 3, 2000, the claimant stated that he dislocated his left shoulder when he went to stretch his arm over his head.

In a memorandum to file dated February 24, 2000, a Workers Compensation Board (WCB) adjudicator documented that the claimant had dislocated his shoulder in the past, namely in 1997 (a WCB claim) and twice prior to the 1997 claim.

Prior to his shift on February 3, 2000, the claimant indicated that his left shoulder was fine. His job duties were changed from electrical work to installing panels in buses which required him to have his shoulder up and above his head and to work with a drill and a screw driver. After one hour of installing panel decks, his shoulders became sore. While having lunch at the work site at 10:00 a.m., the claimant indicated that he tried to stretch his shoulders by lifting his arms up above his head and that's when his shoulder dislocated. The claimant was taken to a local hospital and the doctor put his shoulder back in the socket but his arm was completely immobilized.

On February 28, 2000, a WCB medical advisor reviewed the case and was of the opinion that the claimant's dislocation occurred as a result of a prior tendency/history of dislocations and was not directly related to an accident at work. On March 1, 2000, initial adjudication advised the claimant that his claim for compensation was not acceptable as it was determined that his injury occurred while on lunch and was not the result of a hazard of his employer's premises but rather was the result of personal action.

The case was considered by Review Office, at the request of the claimant's union representative, on March 31, 2000. In its decision of the same date, Review Office determined that the claim was not acceptable based on Sections 4(1) and 1(1) of the Workers Compensation Act (the Act) and board policy dealing with accidents occurring in the lunch room. Review Office indicated that the claimant's shoulder dislocation was not caused by any event which arose out of and in the course of his employment and that the event occurred on the claimant's lunch hour. The claimant was not performing a function or activity on behalf of the employer but rather attending to his own personal needs (his lunch).

On June 1, 2000, a union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Appeal Panel is unanimously of the opinion that the claimant's request for WCB coverage for his shoulder dislocation is an acceptable claim. In accordance with WCB policy 44.10.20.40 on shoulder dislocations, this Panel reviewed the history of dislocations with the claimant and determined that the weight of the evidence was clearly in favor of an acceptable claim.

A review of the work related circumstances of this dislocation revealed that the claimant had been employed with the employer for five years as a production worker building buses. At the time of the accident, the claimant had been performing the duties of an electrician for approximately one year. However, on the morning of February 3, 2000, the claimant was asked by his foreman not only to perform his regular duties but to fill in for a fellow employee who was absent that day. This later job involved long periods of extending the shoulders up with the arms above the head and working with a drill and a screwdriver. In this somewhat awkward position, the claimant described his shoulder as being very painful. He took several periods of rest because of the pain and described the pain to his co-workers. Periodically, the claimant tried to stretch his arms and shoulders to relieve the pain and allow him to continue with his job. At times the pain was unbearable.

On a break from his job duties the claimant went to the lunchroom to rest his shoulder. There he tried to relieve the stress to his shoulder by stretching his arm. Within seconds, the claimant's shoulder dislocated. Subsequent medical attention revealed the need for surgery to pin the claimant's shoulder back together which surgery was scheduled for October 31, 2000. Until that point and no doubt for a period of recuperation thereafter the claimant was and is unable to perform any job duties.

This Panel also discussed with the claimant his past history of dislocations. According to the claimant he had dislocated the same shoulder on three previous occasions. This information is contrary to the Review Officer's comments in his decision dated March 31, 2000, wherein he indicates that the medical documentation on the claimant revealed that he "had a dislocation in 1996 and since then his shoulder has dislocated at least 10 times." However, nowhere on the claimant's WCB file can we find substantiation for this point. The claimant was a most credible witness and we can find no reason to disbelieve him on this point.

The claimant described first dislocating his shoulder on December 11, 1996 in a non-work related accident. A second dislocation occurred on May 20, 1997 while working. The claim was deemed acceptable by the WCB. A third dislocation occurred on May 10, 1999 while playing baseball outside of work hours.

The claimant described his job as being "heavy and labor intensive." This description was echoed by the employer representative at the hearing. Each time the claimant injured his shoulder, he was off for a period of time and then approved by his doctor to return to this same "heavy, labor intensive job". This signaled to the claimant that his shoulder had healed and he was okay to perform his regular job duties. The employer representative indicated at the hearing of this matter that "there were job conditions that could have contributed to his condition".

For approximately eight months prior to this accident the claimant testified that he was healthy. He had no problems on and off the job with his shoulder. He played many games of golf and baseball during this time with no injury to his shoulder. This would lead one to believe that the shoulder was not unstable prior to this dislocation but rather it was the change of duties requiring intense pressure to be put on the shoulder that led to the accident on that day. It is therefore the opinion of this Panel that the accident "was significant enough to aggravate the pre-existing shoulder condition (indeed even if there was one) to the point where it was the 'final straw' which caused the need for surgery" (as per WCB policy 44.10.20.40).

This Panel has also considered the issue of whether or not the accident occurred over lunch hour or during a period of time that was non-work related. According to policy 44.10.60.40 of the WCB "where the employer provides a lunchroom, accidents occurring in it are considered to be compensable, provided the worker has not created his own hazard."

The shoulder ultimately dislocated in the lunchroom. However, prior to this there were continuous reports of ongoing aggravation to the shoulder while the claimant was performing his job duties. The simple act of stretching while in the lunchroom to relieve symptoms of pain was a natural and appropriate act on the part of the claimant. In fact, the WCB had provided the claimant with a paper on stretching exercises for his shoulder after the first compensable accident according to the testimony of the claimant. We are, therefore, of the view that not only was the claimant on the employer's property in an area where accidents occurring are compensable (the lunchroom) but that he also did not create a "personal hazard" that would have made the accident his own responsibility.

For all of the above reasons, this claim is in accordance with WCB policy and is acceptable.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of November, 2000