The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 22, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 22, 2002 and again on December 3, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant telephoned the call centre at the Workers Compensation Board (WCB) to report a left shoulder injury that occurred at work on October 29, 2001 and which necessitated time loss from work commencing January 4, 2002. The claimant described her injury as follows:

I was loading 50 lb. bags of cabbage from a pallet which was on the floor and I was loading this cabbage into a cart. My right foot got entangled in the nylon rope that ties the cabbage bag. Not realizing this I started to walk away and the rope tightened around my foot and I fell to the cement floor and landed on my left arm, also hurting my right leg as well. I continued to work shortly after although it was sore.

Medical information revealed that the claimant attended a physician for treatment on January 5, 2002. The description of accident read as follows, "fell, tripped and fell on outstretched arm." The diagnosis rendered was a left rotator cuff injury.

On January 10, 2002, the employer contacted the WCB with concerns about the claim. The employer advised a WCB adjudicator that the claimant always seemed to have a claim in the Spring. He noted that the claimant was injured at the end of October and worked until January 4, 2002. The claimant now had a note from her doctor saying she would be off work until January 18, 2002. The employer noted that the claimant had fallen on her knee but was now complaining of a sore shoulder.

In order to adjudicate the claim, primary adjudication spoke with a witness to the accident who indicated that she saw the claimant fall and that she landed on all fours. The following day, the witness asked the claimant if she was hurt and the claimant advised that her knee was hurting. No mention was made about her shoulder being sore.

A report from a sports medicine specialist dated March 1, 2002 stated that the claimant was assessed on February 26, 2002. Based on his assessment, the claimant was diagnosed with a left rotator cuff tendinopathy.

On April 2, 2002, primary adjudication determined that the claim was not acceptable as they were unable to establish that the claimant's left shoulder difficulties were related to the October 29, 2001 incident. The reasons for the decision were the delay in seeking medical attention and the lack of ongoing complaints. On April 9, 2002, a union representative appealed this decision to Review Office, on behalf of the claimant.

Prior to considering the above appeal, the Review Officer spoke with the claimant's manager and co-worker regarding the events that occurred on the day of accident. Details regarding this discussion are contained in a memo to file dated June 20, 2002.

On June 21, 2002, Review Office confirmed primary adjudication's decision that the claim was not acceptable. Review Office noted the file evidence confirmed that the claimant tripped and fell at work on October 29, 2001. The employer confirmed its knowledge of the accident and of the claimant's reporting an injury to her knee only. The employer confirmed that the day following the accident, the claimant completed a green incident card whereby the claimant reported an injury to her right knee and left arm. There was no record of an injury to the shoulder.

Review Office was unable to confirm that the claimant made any complaints about either her left arm or her shoulder between the date of the trip and fall incident and the date that the claimant first attended a doctor for her shoulder problems on January 4, 2002.

Review Office also commented that the diagnosis of left rotator cuff tendinopathy was not consistent with the mechanics of the October 29th accident even if the claimant had fallen onto an outstretched arm as she later reported, or had fallen onto all fours. On July 12, 2002, the union representative appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the treating sports medicine specialist, prior to discussing the case further. On November 1, 2002, all parties were provided with a copy of the specialist's report dated November 4, 2002 and were invited to provide comments. On December 3, 2002, the Panel met to render its final decision on the issue under appeal.

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

(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.”

The evidence confirms that the day following her injury the claimant completed and filed with the employer a ‘green card’ or notice of injury form. The recorded injury was as follows, “Knee injury (right) and left arm”. The evidence of two witnesses further corroborates that the claimant did sustain an accident at work. One witness stated that she saw the claimant fall and land on all fours. The other witness remembers the claimant’s falling onto her knee, but does not recall the arm or shoulder.

The claimant’s treating sports medicine specialist provided an opinion with respect to the mechanism of injury and its relationship to his clinical diagnosis of a left rotator cuff tendinopathy. In a letter dated November 4^th, 2002, the specialist advised as follows:

“In reviewing the proposed mechanism of injury, I would have to say that it is possible to injure a rotator cuff tendon in the fall described. In a situation in which an outstretched arm is forcibly adducted against a falling body, an eccentric load could occur that would outstrip the intrinsic power of the muscle tendon complex and lead to a partial tear of a rotator cuff tendon. Her ability to continue to work after the injury would have been predicated upon the degree of injury and her ability to cope with the symptoms associated with her injury. Further stressing of an injured tendon could subsequently lead to further disruption of the collagen within the tendon causing more pain and potential functional impairment. In this way, Ms. [the claimant’s] rotator cuff injury could be plausibly related to the injury she described.”

After carefully considering all of the evidence, we find that the claimant did, on a balance of probabilities, sustain an accident resulting in injury while in the course of her employment. Accordingly, the claim for compensation is acceptable and the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of December, 2002