Decision #66/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 26, 2004, at the employer's request.

Issue

Whether or not the claim is acceptable; and

Whether or not the employer is entitled to cost relief on the basis of a pre-existing condition affecting the duration of the claim.

Decision

That the claim is acceptable; and

That the employer is not entitled to cost relief on the basis of a pre-existing condition affecting the duration of the claim.

Decision: Unanimous

Background

In January 2002, the claimant telephoned the call centre at the Workers Compensation Board (WCB) to report a left shoulder injury that occurred during the course of her employment as a cleaner/labourer on December 9, 2001. The claimant described the accident as follows:
"I was taking and throwing out bags of garbage in the mall and I had to lift them up and throw them over sideways towards the left shoulder. The bins are up high, taller than I am and I am 4 foot 9 inches".
The claimant advised the call centre that she had reported her injury to her district manager and supervisor on December 10, 2001.

Initial medical information revealed that the claimant sought treatment from a chiropractor on December 10, 2001, and the diagnosis rendered was left rotator cuff tendonitis. On January 1, 2002, the diagnosis was changed to bursitis of the left shoulder.

On January 16, 2002, a WCB adjudicator spoke with the claimant who stated that she felt a tearing sensation in her left shoulder on December 9, 2001 after throwing 5 garbage bags into a bin. The claimant stated that she missed the shift of December 10, 2001 because of her shoulder. She had called into work and had spoken with her supervisor and then attended a chiropractor. The claimant continued to work until December 24, 2001 but continued to have increasing problems with her shoulder and informed her supervisor of ongoing complaints. She had December 25, 2001 as a regular day off and then developed pneumonia. Even when she was off work with pneumonia, the claimant's shoulder continued to be painful so, she went back to the doctor on December 29, 2001.

In a memo dated January 21, 2002, the adjudicator spoke with the claimant's manager, who advised that as far as she knew, the claimant was off work due to her pneumonia and not her shoulder. The manager stated that she was aware of the claimant's shoulder complaints between December 9 and December 24, 2001.

The adjudicator also contacted the claimant's supervisor on January 21, 2002. This individual stated that she was aware of the claimant's ongoing shoulder complaints between the date of accident and date of lay off. The supervisor was also aware that the claimant couldn't handle the garbage during that time because of her shoulder difficulties. "I asked her why she thought the clmt was still away from work and she said because of her shoulder".

On January 22, 2002, the adjudicator spoke with someone from "head office" and discussed the different versions surrounding the claim. Both head office and the adjudicator agreed that there seemed to be a break down in communication on the employer's end and that head office did not have any concerns regarding the acceptance of the claim or for the time loss involved. Subsequent file information revealed that although the claimant performed light duties between January 23, 2002 and March 6, 2002 she continued to experience left shoulder difficulties. The claimant was then cleared to return to modified duties effective March 25, 2002.

On April 16, 2002, a WCB case manager documented that the claimant was involved in a motor vehicle accident on April 14, 2002 and that her left shoulder had not been injured or aggravated. The claimant was then authorized to be off work as a result of the MVA until April 29, 2002. By July 20, 2002, the claimant's WCB benefits ended as it was determined that she was capable of resuming her full regular duties.

In a communication to the employer dated May 2, 2003, the claimant's case manager determined that there was no evidence of a pre-existing condition, which contributed to the claimant's time loss from work and therefore, no consideration would be given for cost relief.

On September 9, 2003, the employer appealed a number of issues for Review Office to consider with respect to the claim. In a letter dated November 17, 2003, Review Office determined the following:
  • That the claim was acceptable - Review Office was satisfied that the claimant incurred a specific incident to her left shoulder during the course of her employment on December 9, 2001 and that the claim met all the criteria set out under The Workers Compensation Act (the Act).

  • There was no evidence on file to suggest that the claimant had a pre-existing condition in her left shoulder which affected the duration of the claim - Review Office confirmed the earlier decision made by the case manager that the employer was not entitled to cost relief.

  • With respect to the overall duration of the claim, Review Office noted that the claimant was allowed to have a change of doctors and therefore, there was no penalty for the claimant's actions. Review Office acknowledged that the employer had valid concerns regarding the claimant's overall attitude when returning to work on a modified duty program as well as certain "coincidences". After reviewing the evidence on file, however, Review Office did not feel the circumstances dictated the overturning of decisions made by the case manager as the claimant was under the guidance of general practitioners as well as an orthopaedic specialist for the duration of the claim.
On November 25, 2003, the employer appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, the employer brings forward this appeal challenging firstly the claim's initial acceptance and secondly its entitlement to cost relief on the basis of a pre-existing condition.

With respect to the second issue, WCB policy 31.05.10 sets out the circumstances in which cost relief is available to eligible employers. The employer contends that it is entitled to cost relief in accordance with the following policy provision: "Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. The cost relief criteria and method of cost allocation are described in Schedule A."

Unfortunately in the present case, neither has the employer identified nor have we uncovered any evidence whatsoever suggesting that the claimant has a pre-existing condition. We find therefore that the employer is not entitled to cost relief on the basis of a pre-existing condition affecting the duration of the claim. Accordingly, the employer's appeal of this issue is hereby dismissed.

As to the first issue, 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."

A thorough review of the evidence reveals that the claimant's co-workers and supervisor were aware of her shoulder complaints. In addition, we find that the mechanism of injury is consistent with the development of the claimant's left shoulder difficulties. We further find on a balance of probabilities that the claimant sustained an accident arising out of and in the course of her employment resulting in injury. The claim is therefore acceptable and the employer'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 11th day of May, 2004

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