The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 6, 2005, at the request of a union representative, acting on behalf of the worker. 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 November 5, 2003, the worker reported that he had pain in his right shoulder while at work. He stated that he "was assigned to work on a car by myself. The train line was bent down and in. I was asked to put a couple of fittings on to extend the train line hoses. I tried two 24 inch pipe wrenches and I couldn't budge them. Then I used a 36 inch pipe wrench and that didn't work. When I did use the 36 inch pipe wrench I felt a pain in my shoulder."

The employer's accident report stated that the worker reported his right shoulder injury on November 13, 2003 and did not seek medical attention until after that date.

The worker was seen by his physician on November 17, 2003. The diagnosis rendered was a right shoulder and biceps strain.

On November 19, 2003, an adjudicator with the Workers Compensation Board (WCB) contacted the worker to gather information as to why the worker hadn't reported the injury at work until November 13, 2003 when he said the injury happened on November 5, 2003. The worker stated that between November 6, 2003 and November 12, 2003 he was either at work and it was slow, in a course or had days off. On November 13, 2003 he went back to work and had increased pain so he reported it.

On November 20, 2003 an adjudicator contacted the employer to gather information regarding when the injury was reported.

In a decision dated November 20, 2003, primary adjudication confirmed that the WCB was unable to accept responsibility for the worker's right shoulder injury. The worker was advised that his claim could not be accepted because no injury was reported and no ongoing complaints about a work-related injury were made to his employer in the days following November 5, 2003.

Following the decision of November 20, 2003, additional information was received from a Health and Safety Representative on February 4, 2004, as well as a handwritten statement dated February 5, 2004 from a co-worker.

After communicating further following receipt of this new information, the adjudicator advised the worker on March 9, 2004 that the claim was unacceptable as there was no confirmation that an injury was reported that day. "The WCB is unable to establish any continuity of symptoms from November 5 to November 13, 2003, as the only person made aware of an injury was a co-worker that cannot confirm the symptoms causally (sic) mentioned to him were work-related."

In May 2004 the WCB received an appeal submission from the worker's union representative asking that Review Office reverse the decision to deny the claim. Attached was a letter dated May 10, 2004 from the worker's physician indicating that the worker continued to have problems with his right shoulder suggesting that he probably had a rotator cuff tear. The physician also noted that a referral was made to an orthopaedic specialist for consultation and that the worker's right shoulder problems were consistent with a work related injury.

On July 16, 2004 the employer provided a detailed submission and requested that the decision to deny the claim be upheld.

On August 5, 2004, Review Office determined that the claim was not acceptable. Review Office stated that following the review of all information, they were unable to confirm that the worker suffered a personal injury by accident arising out of and the course of employment on November 5, 2003. On April 1, 2005 the worker's representative appealed Review Office's decision and an oral hearing was convened before an Appeal Panel on June 6, 2005.

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 subsection 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 worker did, on a balance of probabilities, sustain an accident resulting in injury, which arose out of and in the course of his employment. In reaching this conclusion, we attached considerable weight to the following body of evidence.

• The diagnosis of the worker's injury was consistent with the alleged mechanism of injury.
• We accept the worker's evidence that he did in fact inform his supervisor of the alleged injury.
• The first severe test of the worker's shoulder following the injury was on November 13 when he began to experience difficulties. Up to that point he had been on days off and lighter work. He then immediately reported that his suspected sore muscles were much more serious than he had originally thought.
• The worker made comments about his sore shoulder to two co -workers.
• The worker attended for medical treatment on the earliest possible date being November 17.

Subsection 17(1) of the Act requires that an injured worker "shall as soon as practicable but in any case not later than 30 days after the happening of the accident give notice thereof to the employer". We note that the worker's advising of his injury to his supervisor was well within the prescribed reporting period.

For the foregoing reasons, we find the claim is acceptable. Accordingly, 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 27th day of July, 2005