Decision #112/00 - Type: Workers Compensation
An Appeal Panel hearing was held on October 25, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 25, 2000.
Whether or not the claim is acceptable.
That the claim is acceptable.
On July 7, 1999, the claimant submitted a claim for compensation benefits indicating that she had been working on a packaging line when she felt a burning and a rubbing feeling in her left shoulder. The date of accident was recorded as May 11, 1999.
Subsequent file documentation showed that the claimant provided a sworn statement to a Workers Compensation Board (WCB) field representative on August 27, 1999. The claimant described all the duties that she performed with the accident employer since February 1997. The claimant indicated that the top of her left shoulder was causing her problems. She indicated that sometime in late April 1999 she started to experience burning and a feeling like there was gravel in her shoulder joint. There had been no specific accident and that she had been performing her regular duties. The claimant indicated that because the pain came on so gradually, she could not say exactly when or what she was doing at the time.
Medical information showed that the claimant had attended two physicians for treatment. On May 5, 1999, the attending physician diagnosed the claimant's condition as a possible repetitive strain to the left shoulder. On May 12, 1999, a sports medicine specialist determined that the diagnosis was impingement, inflammation of the acromioclavicular joint and possibly bursitis.
The case was reviewed by a WCB medical advisor on August 31, 1999. The medical advisor commented that the diagnoses outlined by the sports medicine specialist could be as a result of repetitive motion and or repeated motion in a position of impingement, i.e. performing tasks at shoulder height. Assembly line work could also provide/lead to impingement bursitis, or acromioclavicular irritation if lots of "across body work" was performed. On September 13, 1999, the employer indicated that the jobs performed by the claimant were done directly in front of her and there was no reaching over across her body.
On September 30, 1999, the claimant was advised that her claim for compensation was not acceptable. It was the opinion of Rehabilitation & Compensation Services that it could not be established that the diagnosed condition was the result of an accident as defined in the Workers Compensation Act (the Act). On October 7, 1999, the claimant appealed this decision stating that the work she performed was done from left to right and that she reached above shoulder height all day long.
Prior to considering the appeal, Review Office requested that a WCB field representative videotape the claimant's job duties. This was performed in the spring of 1999.
In a decision dated November 26, 1999, Review Office indicated that the claimant's entire file, including the videotape evidence, had been examined by a WCB orthopaedic consultant. It was the consultant's opinion that the most likely diagnosis of the claimant's left shoulder complaints was either subacromial bursitis or supraspinatus tendonitis, and that these conditions would not be caused by repetitive activities, either at work or otherwise. Based on all the available information, Review Office believed that it had not been established that the claimant's left shoulder problem had been caused by her work activities. Review Office therefore confirmed that the claim for compensation was not acceptable. On June 29, 2000, a union representative appealed Review Office's decision and an oral hearing was arranged.
Section 4(1) of 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
- A wilful and intentional act that is not the act of the worker,
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises
out of, and in the course of, employment, and
- an occupational disease
and as a result of which a worker is injured."
Review Office concluded that the claimant's left shoulder difficulties were not caused by her work activities. However, with all due respect, we do not share the same view. In this regard, we attached considerable weight to the video tape evidence showing the job duties together with the WCB medical advisor's opinion of August 31st, 1999, in which he stated the following:
- " Dr. [the treating physician] does not provide a diagnosis until he fills out the insurance forms.
- ? +/- impingement
- A/C joint inflammation (? Arthritis)
- +/- bursitis
These diagnoses could be as a result of repetitive motion +/or repeated motion in a position of impingement. Position such as at shoulder height in particular.
- Assembly line could produce/lead to impingement bursitis or A/C irritation (if lots of across body work)."
Accordingly, we find the claim to be acceptable and the claimant's appeal is hereby allowed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of November, 2000