Decision #20/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 14, 2003, at the request of the claimant. The Panel discussed this appeal on January 14, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant submitted a claim for compensation benefits on December 11, 2000, indicating that he injured his spine and right shoulder to the thumb and fingertips due to his occupation as a glazier. In this job placement, the claimant was required to lift heavy glass units (200 - 400 lbs.) daily above his head, along with lifting and drilling overhead. There was no specific date of accident recorded on the application (the accident date was later identified as being October 24, 2000), but the claimant stated that he did not report his injury to his employer until December 15, 2000. The Employer's Report of Accident for this claim stated "no injury to report."

Initial medical information consisted of a hospital medical report which showed that the claimant was treated on December 8, 2000 for soreness in his right arm, which he had for 1 1/2 weeks. The diagnosis rendered was a C6-C7 nerve compression.

In order to adjudicate the claim, contact was made with the claimant on a number of occasions by the WCB to obtain additional details regarding his employment activities which he felt led to his spine and right shoulder difficulties. Contact was also made with the employer and a co-worker concerning their knowledge of any accident sustained by the claimant.

Based on Sections 4(1) and 17(5) of The Workers Compensation Act (the Act), primary adjudication determined that it was unable to establish that the claimant sustained an injury as a result of an accident arising out of and in the course of his employment. In reaching this decision, primary adjudication relied on the following factors:
  • the claimant advised the WCB that he first began experiencing difficulties in October 2000, however, he continued working until November 10, 2000 after which point he had been laid off. The claimant stated that he never reported his difficulties to his employer as he was afraid of losing his job.

  • the claimant first sought medical attention on December 8, 2000, four weeks after he last worked, complaining of right arm soreness for approximately 1 ½ weeks.

  • information obtained from the employer revealed that the claimant never reported any accident or injuries. The employer was also unable to confirm that any co-workers were aware of the claimant's difficulties. The claimant was laid off on November 10, 2000 due to a shortage of work.
In February 2002, the claimant appealed primary adjudication's decision to deny his claim and the case was forwarded to Review Office. The claimant stated, "I never said I had an accident at work, but I said the problems with my shoulder, arm, elbow and fingers had become disabled because of the type and weight classification of my job."

On March 22, 2002, Review Office considered all the file information which included the following medical reports:
  • a hospital report dated December 11, 2000;
  • progress report from the attending physician dated December 28, 2000;
  • neurologist reports dated January 9, 2001 and April 25, 2001;
  • x-rays of the cervical spine dated December 14, 2000;
  • a neurologist's report dated January 10, 2001;
  • nerve conduction studies of February 27, 2001 and March 27, 2001;
  • CT of the cervical spine dated March 28, 2001;
  • report by an occupational health physician dated January 17, 2002;
  • reports by a sports medicine specialist dated February 22, 2002 and March 1, 2002.
Review Office noted that it was clear the claimant was not claiming one single incident caused his difficulties, but rather, over a period of time his injury developed from the nature of the work he performed which could be classified as medium to heavy work. Review Office noted discrepancies as to the onset of the claimant's difficulties as some medical reports showed that he began to notice problems in October 2000, whereas other reports showed that these difficulties were reported to have started in January or February of 2000. Review Office was unable to conclude that the claimant's injuries were work related or that he sustained personal injury by reason of an accident that arose out of and in the course of his employment. On September 9, 2002, the claimant appealed Review Office's decision and an oral hearing was convened on January 14, 2003.

Reasons

Section 4(1) of 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."

The preponderance of evidence does not point to the occurrence of any singular event or series of events, which would lead us to conclude that a work place accident had occurred. According to his evidence at the hearing, the date of the accident was October 24th, 2000. The claimant continued working his regular duties up to November 11th after which the employer later laid him off on November 14, 2000. The site supervisor testified that the claimant was laid off because of a shortage of work and cold weather.

The claimant was extremely vague and inconsistent with respect to the details surrounding his alleged compensable injury. He did not file a worker's report of injury form with the WCB until December 11th, 2000. In that report, he attributed the cause of injury to his "spine, right shoulder to thumb and finger tips" as a result of "Heavy lifting above head, Drilling above head". By way of contrast, however, the claimant testified at the hearing as follows:
"Now on that day, me and [name of co-worker] were on the west side of the building and we were drilling the panels. And I don't know what happened. All of a sudden I got a pain in my neck. It went straight down my back into my shoulder and I fell to the ground."

It should be noted as well that on December 8th, 2000 three days prior to his reporting the accident to the WCB, the claimant attended a local hospital presenting with an entrance complaint of a numb and sore right arm. The examining physician's notes recorded normal range of motion for both the neck and shoulder and that the claimant had a sore arm for approximately 1½ weeks. When questioned by an adjudicator on January 10th, 2001 about his difficulties, the claimant indicated that he noticed numbness of his right thumb and had a tough time lifting pressure plates.

The claimant did not report the October 24th incident to his employer nor did he seek medical attention for his injury until almost seven (7) weeks after the alleged incident. The various medical diagnoses and reports were somewhat inconclusive in associating the claimant's condition to a work related injury.

After having considered all of the evidence, we find that the claimant did not, on a balance of probabilities, sustain an accident resulting in injury, which arose out of and in the course of his employment. Accordingly, the claim is not acceptable and the worker'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 17th day of February, 2003

Back