The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 23, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 23, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In May 2002, the claimant contacted the Workers Compensation Board (WCB) to report that he was experiencing difficulties with his right shoulder and back since March 2002 which he related to the repetitive motion of his work activities. The claimant indicated that he reported his difficulties to the accident employer on April 22, 2002.

In order to adjudicate the claim, contact was made with the claimant to gather additional information concerning the actual job duties that led to his discomfort and ongoing difficulties. Communication was also made with several representatives of the accident employer concerning the claimant's work history and his reporting of the claim.

A Doctor's First Report dated April 20, 2002 diagnosed the claimant with a repetitive muscular strain of the right upper back and soreness in the left upper trapezius. The claimant was treated by a chiropractor on April 15, 2002 who reported that the claimant hurt his mid back from repetitive movements of the arm across the chest required for by his job. The diagnosis rendered was a mid dorsal/mid-scapular sharp pain with reduced spasms in and around the rib head.

On July 9, 2002, a WCB medical advisor was asked to review all of the file information and to comment on the probable diagnosis and whether or not it could be related to the claimant's job duties. The medical advisor responded that the probable diagnosis was "muscular pain - Rt trapezius and periscapular muscles". He doubted that these symptoms were related to the claimant's work activities.

In a letter dated July 16, 2002, the claimant was advised by primary adjudication that his claim for compensation had been denied as a relationship could not be established between the mechanism of injury and his diagnosed condition. As the claimant disagreed with this decision, the case was forwarded to Review Office for consideration.

On December 13, 2002, Review Office confirmed that the claim was not acceptable. Based on the available information which included an opinion expressed by a WCB orthopaedic consultant on December 3, 2002, Review Office felt that it had not been established that the claimant's right shoulder and upper back complaints were attributable to his job duties. On June 4, 2003, the claimant appealed this decision to the Appeal Commission and a report from the treating chiropractor was submitted dated April 22, 2003 for consideration.

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."

After having thoroughly considered all of the evidence, we find that the claimant did, on a balance of probabilities, sustain an accident as defined by the Act. There is no question that certain aspects of the claimant's job duties were extremely repetitive and required a lot of reaching and stretching across his body. These activities resulted in the claimant's developing right shoulder and upper back difficulties, which necessitated his seeking medical treatment. However, we note that the claimant did not experience a loss of earning capacity.

We further find the claim to be acceptable and accordingly the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of October, 2003