The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 9, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 5, 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a repetitive strain injury to his right shoulder which he related to his work activities as a first cook.

A letter from his attending physician dated June 18, 2003, indicated that the claimant had been seen in the office on June 4, 2003 complaining of right shoulder pain for two months. The claimant could not remember any acute injury that precipitated the pain. Following examination, the physician diagnosed the claimant with a right rotator cuff injury.

On June 10th and June 17, 2003, a WCB adjudicator contacted the claimant by telephone to gather additional information with respect to the specific work duties that the claimant felt led to his right shoulder difficulties along with details regarding his outside activities. The adjudicator also sought the medical advice of a WCB medical advisor on July 3, 2003.

In a decision dated July 3, 2003, the claimant was advised that his claim for compensation had been denied as primary adjudication was unable to establish that an accident, in accordance with the WCB's definition of an accident, had taken place. This decision was based on the following rationale:

"…you reported you aren't certain of the cause of your injury; you don't do any heavy lifting over shoulder height and there were no recent changes in your job duties to account for your symptoms; your employer reported you didn't inform them of the injury until June 5, 2003; medical evidence confirms you didn't report a specific injury and that your symptoms developed approximately early April 2003; and in the opinion of a WCB medical consultant, your diagnosis is unclear, however, the mechanism of injury isn't likely to result in a rotator cuff injury.

…it's more probable your current symptoms are related to activities outside work, rather than to the mechanism of injury as described."

In a submission dated September 10, 2003, a union representative asked Review Office to rescind the above decision and presented information in support of the position that the claimant's symptoms occurred while he was at work and that there was no evidence to substantiate that something other than work caused his shoulder difficulties.

On December 19, 2003, the Review Office confirmed that the claim was not acceptable as it had not been established that the claimant suffered a personal injury by an accident arising out of and in the course of his employment. The following rationale was used as a basis for this decision:

• medical information revealed that the claimant's internal and external rotation was limited by pain which was a subjective complaint and was not supported by any physical findings. There was no definitive diagnosis or evidence of an "injury".
  
  
• there was no evidence of an "accident" as required by legislation. Review Office noted that the claimant was uncertain as to when his symptoms began; and
  
  
• there was no evidence to support that the claimant's symptoms arose while at work. The claimant seemed surprised that his injury was work related because his doctor had told him that it was a repetitive strain injury from lifting heavy objects.

On January 28, 2004, the union representative disagreed with Review Office's decision and an oral hearing was requested and 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."

The claimant's right shoulder injury was diagnosed by both his physiotherapist and treating physician as being rotator cuff tendonitis. The claimant's shoulder difficulties arose after lifting heavy pails, boxes and containers of food products from the floor to a work station on counter tops together with reaching above his head for various cooking utensils. The employer acknowledged that it had been made aware by the claimant of his shoulder problems as a result of the heavy lifting.

After having considered all of the evidence, we find that the claimant's shoulder difficulties are totally consistent with the mechanism of injury as described by the worker. We further find on a balance of probabilities that the claimant's injury arose out of and in the course of his employment. Accordingly, the claim is acceptable and the worker's appeal is hereby allowed.

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 26th day of April, 2004