The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 11, 2001, at the request of the employer. The Panel discussed this appeal on January 11, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On March 14, 2000, the claimant filed an application for compensation benefits claiming that her bilateral shoulder difficulties were related to her employment activities as a courier, which required the lifting of boxes. The accident date was recorded as February 28, 2000 and the claimant indicated that she reported her difficulties to her employer on February 28, 2000.

In a letter received by facsimile at the Workers Compensation Board (WCB) on April 7, 2000, the employer's WCB specialist indicated that it had no record indicating the claimant sustained a work related injury on March 20, 2000. The employer advised that the claimant initiated a short term disability claim with respect to both shoulders. On March 24, 2000, the insurer informed the company that the claim had been denied and that the claimant was notified of this decision as well. It was after this denial of coverage that the claimant stated to the employer that her current problems were WCB related. It was the employer's position that the claimant's alleged shoulder injury did not arise out of and in the course of her employment.

Statements were obtained from the claimant, the lead hand and several co-workers in April 2000 regarding the alleged work injury.

In a letter dated May 4, 2000, the employer was informed by the WCB's Rehabilitation and Compensation Services that the worker's claim for compensation was acceptable. In accepting the claim, the adjudicator made reference to the following information contained in the statements taken from various co-workers:

• The claimant indicated that she first noticed right shoulder pain in early December 1999 while performing the regular duties of a courier. The claimant indicated that her left shoulder difficulties began in approximately the middle of January 2000. She had been using her left arm more at work because her right arm was sore.
• The claimant maintained that the lead hand as well as her co-workers were well aware of her difficulties in December 1999 and January 2000 and that the cause of these difficulties were work related.
• The lead hand stated that the claimant would pick up and deliver approximately 80 to 270 packages per day including envelopes. He was aware of the claimant's bilateral shoulder difficulties in December 1999 and January 2000 and that the claimant was relating her difficulties to her work duties as a courier.
• A few of the claimant's co-workers confirmed the above information.
• The medical information received from two treating physicians provided a consistent history of the injury.
• The employer's Human Resources were aware of the claimant's complaining of shoulder difficulties on February 29, 2000. At this time, however, there had been no mention that these problems with the shoulders were work related.

On June 13, 2000, a WCB medical advisor assessed the claimant and determined that she suffered from impingement involving the right shoulder as well as some multidirectional laxity on the right-hand side and less so on the left-hand side. The medical advisor made note of the fact that the claimant spent a lot of time with her arms at the point of impingement while scanning on the conveyor line. Repetitive lifting and driving may be somewhat of an aggravation as well. The medical advisor did not consider that the instability would have occurred as a result of her work duties but that stress placed upon the right shoulder as a function of those work duties may have aggravated the right shoulder.

In a submission to Review Office dated June 27, 2000, the employer believed that the claim for compensation was unacceptable based on the following factors:

• The claimant never initially reported her shoulder difficulties as being work related;
• The claimant failed to notify the company of her work related injuries;
• The absence of a conclusive medical diagnosis.

In a decision dated August 4, 2000, Review Office concluded that the evidence on file was sufficient to establish that the claimant did have a shoulder problem caused by the nature of her employment. Review Office acknowledged that it was often quite difficult in cases such as this to pinpoint an exact time or place when an injury occurred. Review Office was satisfied, however, that the lead hand was aware of the claimant's shoulder difficulties as early as December of 1999 and that the worker related these difficulties to her type of employment. Review Office confirmed that the claim for compensation was acceptable. On August 30, 2000 the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

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) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

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

(c) an occupational disease and as a result of which a worker is injured.”

As the background notes indicate, a WCB medical advisor examined the claimant on June 13^th, 2000. In arriving at our decision, we attached considerable weight to his opinion, which reads in part:

“She suffers from impingement involving the right shoulder as well as some multidirectional laxity on the right-hand side and less so on the left-hand side.

I have reviewed the file, however, and I do note that the information to file would suggest that she spends a lot of time with her arms at the point of impingement while scanning on the conveyor line. Repetitive lifting and driving may be somewhat of an aggravation as well.

It is not my view the instability would have occurred as a result of her work duties. However, stresses placed upon the right shoulder as a function of those work duties may have aggravated the right shoulder.” (Emphasis ours)

Also of significance were the comments made to the WCB from several of the claimant’s co-workers, which confirm that she had, on a few occasions, mentioned her shoulder being sore. In addition, the statements establish that the claimant’s application for short-term disability benefits was for her dizziness and not her shoulder problems.

We find based on a balance of probabilities that the claimant’s work duties caused an aggravation of a pre-existing shoulder condition. The evidence further substantiates that the claimant did sustain an accident, which arose out of and in the course of her employment. Accordingly, the claim is acceptable and the employer’s appeal is hereby dismissed.

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 13th day of February, 2001