Decision #96/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 10, 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 May 12, 2003, the claimant contacted the call center at the Workers Compensation Board (WCB) to report left wrist difficulties that he attributed to his employment activities as a service clerk on April 14, 2003. The injury was reported to the employer on April 24, 2003.

The claimant stated that he first noticed his left wrist getting sore after he started performing light duties in early March 2003 because of a non-compensable injury to his right index finger. The claimant's job duties involved using his left hand all day long and he was constantly picking up, grasping and clutching things. The claimant said that he delayed in reporting the accident because he was expecting his wrist to get better and he was not losing any time from work.

A Doctor's First Report dated April 14, 2003 diagnosed the claimant with an extensor tendonitis of the left wrist with a ganglion. Treatment included ice, medication and a brace. A report was also received from a physiotherapy clinic regarding an initial assessment of the claimant dated May 22, 2003.

In May 2003, primary adjudication contacted the claimant and the employer to gather additional information concerning the claimant's work duties which had led to his left wrist difficulties together with any information regarding the reporting of the accident, medical treatment, etc.

On May 30, 2003, the claimant was advised by the WCB that it was unable to accept his claim as the employer was unable to confirm the length of time that was required to do each duty as described by the claimant. The WCB felt that the evidence did not establish a relationship between the development of his left wrist symptoms and an accident arising out of the course of his employment. On September 3, 2003, a union representative, acting on behalf of the claimant, appealed the decision to Review Office.

In a November 12, 2003 decision, Review Office confirmed that the claim was not acceptable based on the following rationale:
  • the claimant did not mention or report his left wrist difficulties to his supervisor, even though he was working every day and speaking with his supervisor on a daily basis.

  • a co-worker stated he was not aware of any problems the claimant had with his left wrist or hand prior to the first or second week of May 2003.

  • there was insufficient evidence to support that the claimant sustained injury to his left wrist as a result of work-related activities.
On February 12, 2004, the claimant's union representative appealed Review Office's decision and an oral hearing was 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. "

As the background notes indicate the claimant's injury was diagnosed as extensor tendonitis with ganglion. The claimant testified at the hearing with regard to the very extensive and repetitive job duties that he was required to perform as a service clerk. We find, on a balance of probabilities, that the claimant's diagnosed extensor tendonitis is consistent with the nature of the duties performed. Accordingly, we further find that the claimant sustained an injury arising out of and in the course of his employment. Therefore the claim is acceptable and the claimant'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 21st day of July, 2004

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