The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 26, 2002, at the claimant’s request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant submitted an application for workers compensation benefits on March 25, 2002, indicating that she injured her left upper and lower arm on November 30, 2001 during the course of her employment as an office worker (the claimant worked for a temporary employment agency). The claimant described the accident as follows:

“I was working with files in the back. The files are heavy. My co-worker was using a wagon and I had to carry my files. Gwen (employee) said why didn’t I use my chair. I put my files on the chair and had to push the chair and put one hand on the files so that they wouldn’t fall. After awhile I started to get a pain in the arm. The chiropractor said that I could still work that it is just a strain.”

The claimant reported the injury to her employer on November 30, 2001.

The claimant submitted a second application for workers compensation benefits by facsimile on April 17, 2002, indicating that she injured her left arm on November 30, 2001. The claimant described her injury as follows:

“I was working at [place] with files and entering data entry in data base. They didn’t have a “wagon” to put files in to bring to desk to take back files to mailroom. [Co-worker] suggested I place files on chair. I would hold files with one hand and push chair with other hand to go to desk and back to mailroom.”

The claimant reported the injury to her employer on January 5, 2002.

The Employer’s Report of Injury dated April 10, 2002, noted that the claimant’s November 30, 2001 injury was reported on April 4, 2002. The claimant advised that she felt pain in her left arm.

The Employer’s Report of Injury from the temporary employment agency indicated that the claimant never disclosed how the injury occurred. In a letter attached with the report, the employer stated that the claimant did not report an accident in November 2001. The claimant did complain of a sore arm but this was mentioned in passing and did not prevent her from asking for or accepting assignments. The claimant called on a regular basis asking for work, stating that she was having a difficult time making ends meet.

On March 28, 2002, a Workers Compensation Board (WCB) representative spoke with the claimant. The claimant indicated that she was a causal employee and was sent to work in many different places and in different offices. The claimant was right hand dominant. The onset of her symptoms began around the beginning of December 2001 when she felt stiffness in the muscles of her left arm and had pain from the left wrist to the left armpit. The pain gradually worsened and there was no specific injury. The reason she did not seek medical attention until January 2002 was because her doctor was on Christmas holidays. The claimant was claiming for physiotherapy visits.

A physiotherapist report dated April 30, 2002, noted that the claimant was assessed on April 22, 2002. The diagnosis rendered was a repetitive strain of the left forearm/thumb and right forearm/fingers.

On May 1, 2002, a WCB adjudicator contacted the claimant. The claimant advised the adjudicator that her injury occurred while she was working for [employer]. The injury was to both her left and right arms. The reason why she only indicated her left arm on her worker’s report form was because when she went to see the chiropractor in January he only treated her left arm as he told her that he didn’t know what to do with her right arm. The chiropractor advised that because her arm was in an awkward angle it was entirely possible that she could have strained her arm muscles. The claimant said she told the doctor that it was a work injury. She saw the chiropractor on March 14th and he told her that he couldn’t do anything for her. The claimant stated that she recently started seeing a doctor who referred her to physiotherapy treatment. The claimant did not work in the month of March because she told her employer that she had a sore arm and that she had been told by the employer to stay home and rest.

On May 8, 2002, the WCB adjudicator spoke with the claimant to go over the reasons why the WCB was not accepting her claim. The claimant advised the adjudicator that she didn’t tell her chiropractor she was claiming WCB because she didn’t know what was wrong with her shoulder. The physiotherapist was the person who explained her difficulties. The claimant felt the chiropractor was at fault and that she was now having difficulties with her forearms and fingers.

On May 8, 2002, the treating chiropractor advised a WCB adjudicator that there was never any mention of the claimant’s having a work injury or that she was claiming WCB. There was a big sign in his waiting room telling his patients that if their injury was the result of a WCB or MPI matter, then they must tell him so he can send in the information. Upon looking back into his notes, there was one time in November when the claimant was moving files on a chair with one hand on the files and the other hand moving the chair that she may have hurt herself. This could have placed the claimant in an awkward position with torsion. There was no mention of this happening at work nor that the claimant had WCB coverage. The claimant was diagnosed with a sprain/strain of her left shoulder.

On May 8, 2002, primary adjudication confirmed to the claimant in writing that the WCB was unable to accept responsibility for her claim. The WCB was unable to establish that the claimant’s arm difficulties were due to a workplace injury or that a workplace injury ever occurred. This conclusion was reached based on the following factors: the delay in reporting to the employer, no specific injury occurring, delay in seeking treatment, the initial diagnosis by the chiropractor and that the areas of injury and treatment changed in April. On May 15, 2002, the claimant appealed this decision to Review Office.

In a July 5, 2002 decision, Review Office determined that the claim was not acceptable. Review Office was unable to establish that the claimant sustained personal injury by accident arising out of and in the course of her employment. Review Office stated that:

• There was no report of a work related injury or work related problems to the employer until 5 months post alleged injury;
• The claimant did not report a work injury or work related problem to the initial treating practitioner.
• The diagnosis rendered by the physician was a left shoulder strain. This diagnosis was not consistent with what the claimant described as having caused her problems. The claimant also reported on her application form for benefits that her work injury was to the arm, not to the shoulder.
• Physiotherapy was provided to the claimant on April 30, 2002, for left forearm and thumb and for the right hand fingers. There was no evidence of these problems prior to this date.
  

On July 20, 2002, the claimant appealed Review Office’s decision and a non-oral file review was arranged.

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 keeping 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. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured.”

As the background notes indicate, the claimant filed a worker’s report of injury form with the WCB on April 17th, 2002 alleging that she sustained a workplace accident on November 30th, 2001 and that she had reported the accident to the employer on January 5th, 2002. On the other hand, the employer states that it was not informed of the claimant’s accident until April 4th, 2002. In any event, we note that the claimant did not provide notice of her alleged accident to the employer within 30 days after the happening of the event as is required by section 17(1) of the Act.

We also note that the claimant sustained no loss of earning capacity as a result of the alleged incident. In addition, there is no confirmation on file from the attending chiropractor to suggest that the claimant’s symptoms were in any way related to her employment. We find that the evidence as a whole does not support the claimant’s contention that her physical difficulties are as a result of an accident arising out of and in the course of her employment. There being no accident as defined by the Act, the claim is therefore not acceptable and the claimant’s appeal is hereby dismissed.

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 12th day of November, 2002