The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 28, 2001, at the request of a worker advisor, acting on behalf of the claimant. The worker advisor 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 June 28, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The claimant filed an application for compensation benefits in October 2000 for left shoulder and arm difficulties which she related to her employment activities at a call centre.

On November 2, 2000, the claimant spoke with a Workers Compensation Board (WCB) adjudicator concerning her claim. The claimant indicated that she started having problems with her shoulder at the end of April or beginning of May 2000. The claimant provided the name of a co-worker who knew about her shoulder difficulties. The claimant also stated that she had given her supervisor some letters that she obtained from her doctor's office. The claimant indicated that she had a claim with MPI for an accident that occurred on January 6, 1999 and that MPI was topping up her wages.

In a memo dated November 9, 2000, a WCB adjudicator noted that the claimant started working with the accident employer in October 1999. The adjudicator described the claimant's job duties as follows: "2 computers on her desk, but used the computer on her left side approximately 70% of the time. She used a mouse and keyboard on both computers. She indicated she worked at different workstations all the time, but they were all set up the same way. The phone was on her left side, which required her to reach up with her left arm frequently. She was once reprimanded by a floor supervisor (not sure who) for moving the phone onto her desk. Claimant indicated there are several other employees who are also having problems with the work station set-up, but since the employer is going to be moving, they are not making any changes."

On November 20, 2000, contact was made with the claimant's supervisor who stated that she was aware that the claimant was having difficulties with her shoulder but there was no mention of the problem being caused by work. The supervisor indicated that she was of the understanding that the shoulder had been injured in a previous MVA and that perhaps reaching for the phone had aggravated it. The supervisor indicated she had received one doctor's note with no mention of work relatedness. (This letter was dated September 11, 2000 and it stated, "This lady will be off work for the next 3 weeks for myofascial pain syndrome during which time she will be receiving physiotherapy. A reassessment to determine progress in October will be arranged to and employability will be decided at that time.) The supervisor stated that if the employer is notified of a workplace injury or difficulty, that accommodations would be attempted. This was never done because no one mentioned that it was work related.

Contact was also made with the claimant's co-worker on November 21, 2000. She indicated that she knew about the claimant's shoulder and that it was first mentioned in August. The co-worker said that she knew the claimant was in pain but was not aware that it was work related. The co-worker confirmed that the claimant would have to reach up to press buttons on the phone.

Medical information consisted of hand-written chart notes from the attending physician taken between April 5, 2000 and October 13, 2000. The first mention of left shoulder pain was dated July 27, 2000. The physician noted partial abduction of 90 degrees and pain with internal/external rotation. "No history of trauma" was noted.

On November 24, 2000, the claimant was notified that the WCB was unable to establish that her left shoulder difficulties resulted from her work duties and that she was not entitled to WCB benefits or services. This decision was based on the following factors:

• the employer was not notified of an injury until they received a request for an Employer's Report of Injury from the WCB in late October 2000.
• the claimant indicated that her difficulties started in April, however information from the attending physician showed that the claimant attended a doctor twice in April for unrelated complaints and never mentioned her shoulder difficulties while in the office. Three months later the claimant attended the physician for treatment relating to her shoulder with no history of trauma and there was no mention of a relationship to work duties.

In December 2000, the claimant appealed the above decision to Review Office.

Prior to considering the appeal, Review Office contacted the employer to clarify some points surrounding the claim. A detailed memo of this conversation is on file dated January 11, 2001.

On January 12, 2001, Review Office confirmed that the claim was not acceptable. Review Office noted the accident employer, a co-worker and the treating physician denied knowledge of a work related injury. Information provided by the physician and the employer indicate that the majority of people involved in this case believed, based on information provided by the worker, that her problems were related to a previous motor vehicle accident. Review Office concluded there was insufficient evidence to establish a relationship between the claimant's shoulder complaints and her employment.

In March 2000, the Appeal Commission received an "Application to Appeal" the Review Office's decision of January 12, 2001. An oral hearing was then arranged with the claimant and a worker advisor via teleconference.

Reasons

The Appeal Panel has unanimously determined that this claim is not acceptable as on a balance of probabilities there is insufficient evidence to establish a relationship between the shoulder complaints of the claimant and her employment. In reaching this decision, the Panel has looked particularly at the claimant's dealings with her employer, co-workers, and attending physicians, as well as her job duties and the mechanisms of her reported injuries.

A review of the claimant's file indicates that several initial deficiencies are apparent with her claim including when the claimant actually first reported a work related injury. The information received from the accident employer indicates that a work related injury was never reported. While the claimant's supervisor was aware that the claimant was having difficulties with her shoulder, it was assumed that these difficulties were related to a previous motor vehicle accident for which the claimant was receiving treatment. We also note at no time did the claimant mention that her shoulder difficulties may have been related to her work. A September 11, 2000 note from the claimant's doctor advising that the claimant would be off work for three weeks for myofascial pain syndrome also made no mention that it was work related. In fact, the first time that the employer became aware that the claimant was claiming that her injury was work related came when the employer received a request from the WCB in late October 2000 for an Employer's Report of Injury.

There is also no indication that the claimant ever informed any of her co-workers that she was experiencing work related problems with her shoulder. An interview with one co-worker on November 21, 2000 revealed that while she knew that the claimant was experiencing shoulder problems sometime in August of 2000, she was not aware that the problems were work related.

The medical evidence on the file is also less than clear as to the cause of the claimant's shoulder difficulties. Information from the claimant's attending physician showed that the claimant attended a physician twice in April of 2000 for unrelated complaints. No mention was made to the doctor at that time as to any shoulder difficulties. This is despite the fact that the claimant indicated that her shoulder difficulties began around April of 2000.

Prior to commencing her employment the claimant was involved in a minor motor vehicle accident that resulted in some serious physical damage to her person as a result of a blood vessel breaking in her sinus cavity when she hit her head on the vehicle's head rest. This resulted in a five day hospital stay to try and stop the bleeding and a stay at home for several months thereafter.

The claimant has continued to experience post traumatic stress since this accident. At the time that the claimant was employed with this employer, both the employer and the claimant's co-workers were aware of this motor vehicle accident presumably because the claimant had been experiencing some difficulties related to that accident. They mutually assumed that her shoulder related complaints were related to that accident particularly since the claimant had said nothing to lead them to believe otherwise.

We have also noted the evidence of the claimant at the hearing of this matter wherein she advised that her shoulder began to hurt almost immediately after commencing her employment. This is more consistent with a pre-existing problem or some other trauma than a repetitive injury which would most likely have developed gradually over the course of employment.

We also find that the mechanics of the claimant's employment do not support a causal relationship between her job duties and the establishment of a repetitive type of injury. She was only answering the telephone every six minutes and worked inconsistent hours over time.

In view of all of the above noted information, there does not appear to be a causal relationship between the mechanics of the job performed by the claimant, which was not consistently repetitive and the shoulder difficulties complained of by the claimant. This, combined with the claimant's failure to report her shoulder difficulties as being work related to any of her employer, her co-workers or her doctor, lends credence to the argument that her problems were not work related but rather related to some other cause.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of August, 2001