Decision #114/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 11, 2003, at the employer's request. The Panel discussed this appeal on September 11, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In January 2003, the claimant telephoned the call centre at the Workers Compensation Board (WCB) to report a right shoulder/bicep injury which he related to his employment activities as a shipper/receiver on December 30, 2002. The claimant described the mechanics of the accident as follows:
"I was pulling together a pallet of boxes, I went to get two boxes from in behind another pallet, I went to lift one of the boxes and put it up on top of the pallet in front of it, the box slipped and I caught with my palm up as it was falling. The box was about 35-40 lbs. this pulled my right arm down. I did not really feeling (sic) anything right then and there and I guess as I kept working to finish the day off it was not until later that night that it really began to stiffen up and hurt. I first saw the doctor, Dr. [doctor's name] yesterday, January 2, 2002 (sic) and he figures that it is a rotator cuff injury and within the next couple of days he is going to send me to a muscle specialist, I am just waiting for a call for an appointment date and time."
With respect to the reporting of the accident, the claimant indicated that he did not report the accident to his employer right away because he did not think that he really hurt himself. It was not until later that night that it began to stiffen up. The claimant indicated that he returned for his shift on December 31, 2002 because he thought that he just had a slightly pulled muscle but over the New Year holiday it had gotten worse.

The employer's report of accident for this claim is dated January 8, 2003. The employer felt there was not enough information to substantiate the claim. The employer stated that its employee claimed that a carton weighing less than 25 pounds fell and he tried to catch it.

A Doctor's First Report noted that the claimant was treated on January 2, 2003 with the diagnosis being a rotator cuff tear of the right shoulder.

Subsequent file information consisted of a letter to the WCB from the employer dated January 8, 2003 along with several written statements which were provided by the claimant's co-workers. A WCB adjudicator also spoke with the claimant on January 24, 2003 to obtain further information concerning the reporting of the accident.

On January 24, 2003, Rehabilitation & Compensation Services determined that the claim was unacceptable as it could not establish that the claimant suffered a personal injury at work on December 30, 2002. This decision was based on the claimant's delay in reporting the accident to his employer and his delay in seeking medical attention. On February 19, 2003, the claimant appealed this decision to Review Office.

Prior to considering the claimant's appeal, Review Office referred the case to a WCB orthopaedic consultant to review the file information and to confirm the diagnosis as well as comment on whether or not the delayed development of symptoms was consistent with the diagnosed condition. The consultant's response to Review Office is dated April 1, 2003. Review Office also requested and obtained a report from the claimant's treating sports medicine specialist dated May 1, 2003.

In a decision dated May 16, 2003, Review Office stated that the claim was complicated by the fact that the worker claimed he did not feel much in the way of initial symptoms until after December 30th. "The delay in symptomatology is largely a medical matter and both the Orthopaedic Consultant to Review Office and the attending consultant have confirmed that such a delay in symptomatology following an injury of this type is not unusual. Given this, it is more understandable for the worker not to have made an immediate report of his injury to the company. The worker had been consistent in reporting the same mechanism of injury to the company, to the WCB and to all three of his attending physicians." Review Office concluded that it had now been established that the claimant's injuries did occur in the workplace on December 30, 2002 and therefore the claim was acceptable. On June 4, 2003, Review Office's decision was appealed by the employer and an oral hearing was arranged 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 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, this is an employer appeal challenging the acceptability of the worker's claim. After thoroughly considering all of the evidence, we find that the claimant did, on a balance of probabilities, sustain an injury to his right shoulder as a result of an accident, which arose out of and in the course of his employment.

In arriving at this conclusion, we attached considerable weight to the following facts:
  • The claimant informed his employer by telephone of the December 30th, 2002 injury on January 2nd, 2003 whereupon he was advised to seek medical attention.
  • The claimant sought medical attention on the second business day after the accident.
  • Two physicians, one a WCB an orthopaedic consultant and the other a sports medicine specialist, both acknowledged that the delayed onset of the claimant's symptoms is not necessarily unusual.
We further find that the worker's claim is acceptable. Accordingly, the employer's appeal is hereby denied.

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 9th day of October, 2003

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