Decision #13/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 2, 2004, at the request 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 not acceptable.Decision: Unanimous
Background
In November 2003, the worker filed a claim with the Workers Compensation Board (WCB) for right shoulder and upper arm difficulties that he related to his employment activities on September 18, 2003. On this date, the worker was trying to pull himself up with his arms onto a truck when he slipped.Initial medical information revealed that the worker sought treatment on September 22, 2003. The physician diagnosed the worker with a right rotator cuff tendonopathy. The worker described the accident to the physician as "carrying at work".
On November 5, 2003, the worker sought follow-up medical treatment and was seen by a second physician at the same clinic as the first. The worker's description of injury was recorded as "Slipped coming down off truck, and pulled arms shoulders as try to catch self".
On November 17, 2003, the employer advised the WCB that the worker had injured his shoulders and arms at a previous employer's workplace. On September 18, 2003, the worker told his foreman that his arms became sore when he climbed into the machine. The foreman did not report any incident because he knew the worker's arms did get sore from past experience working with him.
On December 3, 2003, the worker advised a WCB adjudicator that he felt a sharp pain in his shoulders at the time of the accident. He believed his foreman saw that he was in pain. He worked for about an hour after that and left due to ongoing pain. The worker said his condition worsened since the date of accident and that he made ongoing complaints to his employer and foreman. The worker said that he did not have any problems or make any complaints about his shoulders prior to the date of accident. The worker complained about his wrists and forearms and not about his shoulders and arms.
On December 16, 2003, a WCB adjudicator recorded the following information after speaking with the worker:
"…I questioned clmt [worker] about his previous R shoulder difficulties and his failure to mention that in our Dec. 3/03 conversation. Clmt said he told me was continuing to have problems with his arms. Advised clmt his previous claim was for his elbows. He said he was having problems with his R shoulder also. Advised that his R shoulder difficulties was not a result of a workplace injury. Clmt said he can't remember. I asked clmt about the accident hx [history] he provided to Dr. [name]. Clmt said he can't remember exactly how he hurt - he did lots of things. He said he first felt a little pain was when he was pulling himself up the truck. He performed several tasks after that, which could have hurt his shoulder…".On December 30, 2003, the worker's foreman advised the WCB that the worker complained about his arms, back, feet, etc. The foreman did not see the accident nor did the worker report an accident.
In a decision dated January 12, 2004, the worker was advised that the WCB was unable to accept responsibility for his claim. The decision to deny the claim was based on the worker's delay in reporting the accident to his employer and because of the inconsistencies in his accident history.
In an appeal submission dated February 13, 2004, the worker noted that he had injured his shoulder at work and at the time he thought it wasn't serious. He explained that he continued to work in spite of the injury and was trying to complete his term of employment until just before Christmas. He said he could not continue that long because of his injury and therefore his complaint was not filed until well after the date of the injury.
On March 26, 2004, Review Office confirmed that the claim for shoulder problems was not acceptable. Review Office felt the accident histories provided by the worker were inconsistent and it was unable to confirm a traumatic injury occurred to the worker's right shoulder on or about September 18, 2003. On October 29, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.
Reasons
Subsection 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
- a wilful and intentional act that is not the act of the worker,
- any
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises
out of, and in the course of, employment, and
- an occupational disease
A thorough review of the evidence disclosed several scenarios with respect to when, where and how the worker incurred his right shoulder difficulties including the incident at home in autumn 2002 and summer 2003. We are in agreement with Review Office that the accident histories provided by the worker are inconsistent.
The weight of evidence does not support the worker's contention that he sustained an accident arising out of and in the course of his employment which resulted in injury on September 18, 2003. Therefore, we find that the claim is not acceptable. Accordingly, the worker's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of January, 2005