Decision #110/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 26, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 26, 2001.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
On October 21, 1999, the claimant submitted an application for compensation benefits with respect to a right forearm injury that occurred on July 22, 1999 during the course of his occupation as an apprentice carpenter. On his application form for benefits, the claimant indicated that the pain in his right arm was caused from hammering, lifting and pulling, etc.. The claimant did not report the accident immediately to his employer as he thought his forearm problem was only temporary. The claimant stated that his partner was aware of his problem.
The file contains two "Employer's Report of Injury" forms. The first employer (the employer that the claimant was working for at the time he filed his claim on October 21, 1999) indicated that to the best of its knowledge, the injury did not occur on its job site. The second employer (the employer that the claimant had been working for on the date of accident, i.e. July 22, 1999) indicated that the claimant had been with the company between July 15th to July 23, 1999. The second employer further indicated that the claimant had not been employed with its company during the time of injury.
On October 15, 1999, the claimant attended a physician for treatment. The history of injury provided by the claimant to the physician was described as increasing pain in the extensors of the right forearm and lateral elbow for the past 6 months. The physician noted that the claimant has had similar pains in the past. The diagnosis rendered was muscle strain - repetitive movement injury.
The claimant sought treatment from a second physician on October 28, 1999. At that time the claimant complained of right arm pain for three months following an increase in work activities (i.e. hammering/lifting). The diagnosis rendered was lateral epicondylitis. Subsequent file records showed that the claimant attended 9 physiotherapy sessions between October 18 and November 17, 1999 and that he quit treatment because his arm symptoms became worse.
On November 18, 1999, the claimant spoke with a WCB adjudicator. The claimant stated that his symptoms seemed to start in the summer while working for a company. He thought that the work was just straining his arm and that it would heal on its own. The claimant indicated that he does a lot of hammering with concrete forms and that he had worked for this company for two weeks. His co-worker was aware of his sore arm problem. The claimant denied any prior arm difficulties.
The claimant stated that he started work with another company and his arm felt sore. He then started work with a third company and his symptoms gradually became worse. The claimant decided to see a doctor on October 15, 1999 as the pain was so bad and he was having trouble moving his arm. The claimant indicated that he told his supervisor of his difficulties.
On December 29, 1999 a sworn statement was obtained from the claimant that contained a description of the type of work duties that he felt contributed to his right forearm difficulties. The claimant also provided details of how and when he reported his symptoms to his employer. The claimant stated he was not claiming any loss time, only medical coverage.
In a decision dated January 7, 2000 the claimant was informed that a relationship between his right forearm difficulties occurring on July 22, 1999 and an accident at the workplace could not be established. It was the WCB's position that that the right forearm discomfort occurring on July 22, 1999 was not reported to the accident employer until October 23, 1999. In addition, the claimant did not seek medical attention until October 15, 1999. The WCB therefore concluded that it was unable to confirm that a relationship existed between an injury occurring in July 1999 and the medical diagnosis of October 1999.
On July 17, 2000, a worker advisor appealed the above decision to Review Office on behalf of the claimant. The worker advisor took the position that this was a repetitive injury claim based on the mechanics, the repetitive right hand hammering motions which were synonymous with the claimant's occupation and the fact the disability occurred over a period of time.
On August 4, 2000, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that since the claimant did not seek medical attention for his forearm/elbow problems until October of 1999, it was impossible to know whether or not the problems he experienced in July were the same as the ones diagnosed in October. Based on the available information, Review Office was unable to establish that the worker did sustain a personal injury by reason of an accident arising out of and in the course of his employment with any of the companies for whom he had worked from July to the end of November of 1999.
On February 13, 2001, an Appeal Panel hearing was held at the request of the worker advisor who appealed Review Office's August 4th decision. At a meeting following the hearing, the Panel questioned whether the claimant's right arm/forearm, elbow injuries arose out of and in the course of employment with the accident employer noted on record or whether his injuries occurred while employed with a different accident employer. In view of this, the Panel determined that the February 13, 2001 hearing should be reconvened so that all three employers noted on file could attend. On July 26, 2001, a reconvened hearing was held at the Appeal Commission.
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
- A wilful and intentional act that is not the act of the worker,
- any
- 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."
The claimant first sought medical treatment on October 15th, 1999 when the pain in his forearm became more acute and would not go away. It was at this time that the claimant considered his condition might be more serious than he originally thought and he therefore decided to report the injury. The worker's claim was largely rejected by the WCB on the basis of section 17 of the Act, which requires that a worker gives notice of an injury to the employer as soon as practicable and in any event not later than 30 days after the incident. Should the worker fail to give the proper notice, then such failure would be "a bar to any claim for compensation" unless the omission was excused by the WCB.
Section 109 of the Act, however, allows for an enlargement of the time prescribed by any section of the Act. The section reads as follows:
"Where, in the opinion of the board, an injustice would result unless an enlargement of the time prescribed by any section of this Act or by any regulation for the making of any application, the taking of any proceedings, or the doing of any other act, is granted, the board may enlarge the time so prescribed; and the enlargement may be granted either before or after the expiration of the time prescribed in this Act or any regulation."
We are satisfied that this would be an appropriate case in which to exercise the discretion allowed under this section and to enlarge the time for giving notice. Accordingly, we have decided that the worker's claim for compensation is not barred by section 17.
After thoroughly reviewing the evidence, we are satisfied that the claimant's repetitive strain type of injury arose out of and in the course of his employment. The claimant's injury was consistent with his job duties. We therefore find the claim to acceptable and the claimant's appeal is hereby allowed. As an aside, we note that the worker is not claiming wage loss benefits but rather medical aid.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of August, 2001