Decision #142/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 20, 2005 via teleconference at the employer's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

On December 2, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a right arm injury that occurred in the workplace on December 1, 2004. The worker stated that her right arm was aching from the wrist to the elbow and that her doctor told her she had tendonitis. The worker reported the accident to her employer on December 2, 2004.

The Employer's Accident Report dated December 3, 2004 indicated the following: "[worker's name] reports that while she had some tenderness in her arm previously, on Dec. 1 when she was at home, it was a constant ache. She went to see the Dr. who prescribed 2 prescriptions, a brace and rest for 7 days."

Medical reports on file confirmed that the worker was diagnosed with tendonitis of the right wrist and epicondylitis.

On December 7, 2004, the worker advised a WCB adjudicator that she believed her right arm difficulties were caused from scuffing at work. The job involved taking a sponge type of holder and wrapping the sanding paper around it and scuffing furniture that comes off the line. She stated that she works in a production line with five other people and that she started employment with the company on November 24, 2004. During November 30 and December 1, 2004, they scuffed approximately 219 pieces of furniture. The worker denied any ongoing wrist problems while working with her previous employer. The worker started to notice pain on November 30 but had no pain prior to this. She completed the November 30 and December 1 shifts. During the day, she felt a constant throbbing pain at home after work. As the throbbing was getting worse, she decided to seek medical attention. The worker said she advised her employer of her condition after she sought medical treatment and had not made any complaints to anyone before that date.

The employer indicated that they provided the worker with a sheet regarding modified duties that she was expected to take to her doctor. On December 3, 2004, the doctor called the employer and stated that the worker could not use her left arm and that increased use of it during the next 7 days would lead to further problems. The doctor did not feel that the worker was capable of shredding paper with her left hand, as she would be tempted to use her right hand causing further problems. The employer then spoke with the worker and offered her modified duties and left it up to the worker to decide whether she wanted to come back.

On December 7, 2004, the worker told her employer that she needed 10 more days to rest and that x-rays were taken. She also indicated that the medications she was taking for her injury were making her dizzy and sleepy. Modified duties were offered again to the worker and it was left up to her if she wanted to return to work. After a follow-up visit with her physician on December 14, 2004, it was determined that the worker could start modified duties as of December 16, 2004.

On December 15, 2004, a WCB adjudicator determined that a relationship existed between the worker's right arm difficulties and an accident arising out of and in the course of her employment. Based on this decision, full wage loss benefits were paid to the worker up to December 16, 2004 inclusive and final. The adjudicator pointed out that the worker did not fail to mitigate the effects of her workplace injury and that she followed the advice of her attending physician.

In a submission to Review Office dated December 24, 2004, the employer disagreed with the above decisions. The employer contended that the worker's tendonitis condition was not work related and that suitable modified duties had been offered to the worker.

On February 17, 2005, Review Office confirmed that the claim for compensation was acceptable and that the worker was entitled to wage loss benefits. Review Office indicated there was sufficient evidence to support the conclusions that the worker sustained an injury to her right wrist/elbow as a result of her workplace duties and that her attending physician did not consider the worker capable of returning to the modified duties which were offered by the employer until December 16, 2004. In April 2005, the employer appealed Review Office's decision and an oral hearing via teleconference 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 subsection, 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."

As the background notes indicate, the employer is appealing claim acceptability as well as entitlement to wage loss benefits. The employer presented argument to the effect that the "WCB in Manitoba mishandled this claim right from the start and, as such, we don't feel that we have a responsibility to accept the liability for that." According tothe employer, the worker failed to adhere to "established policy" by her failing to report any and all symptoms of injury or strain immediately to her supervisor or the human resources department.

Subsection 17(1) of the Act establishes the requirement that an injured worker shall give notice of the happening of an accident to the employer "as soon as practicable, but in any case not later than 30 days after" the said incident. The evidence clearly establishes that the worker did report her accident to the employer and her treating physician in a timely fashion and well within the 30 days as set out in the Act. In fact, the worker reported her injury to the employer one (1) day after the accident and also sought medical treatment on the very day of the incident.

The treating physician diagnosed the worker's condition as tendonitis of the right wrist and epicondylitis. The employer suggested that it was highly unlikely that the workplace could contribute to the worker's diagnosed condition. On the appeal of claims decision form submitted to the Appeal Commission, the employer stated as follows: "WCB has failed to provide any medical evidence that can substantiate this claim to be caused by work done while Ms. [the worker] was in our employ."

According to the evidence, the worker had only been employed for approximately one week prior to her seeing her treating physician on December 1, 2004. However, the employer acknowledged that the job of a furniture scuffer is repetitive and requires constant use of, as in this case, the right upper limb during the course of the work day:

Q. Ms. [the worker] has described the job as having a fair amount of repetition associated with it. Would you agree or disagree with that?

A. Yes, yes, all our jobs are repetitious.

In addition, the employer further acknowledged that a new employee would be expected to experience soreness in the first few days of work while adjusting to the particular demands of this occupation:

Q. If I recall in my reading of the file, I think there was an acknowledgement, I'm not sure if it's by you or Ms. [the worker], that - - I think it was by you at some juncture - - that some - - that some people coming into these kinds of jobs should expect some soreness when they first start this job?

A. Anytime anybody takes on any physical activity, regardless of what it is, that they're unaccustomed to, they will experience discomfort, yes, that's correct.

After having thoroughly considered all of the evidence, we find in accordance with the applicable standard of proof that the worker did, on a balance of probabilities, suffer an accident arising out of and in the course of her employment, which resulted in injury. The worker's diagnosed condition was, in our view, causally related to her job duties. Therefore, we find that the worker's claim is acceptable.

We note that the treating physician had reviewed the modified duties offered to the worker by the employer and that he determined these duties were not suitable given the worker's condition. We find that there was no failure to mitigate the loss of earning capacity on the part of the worker by her refusing to perform the modified duties as she had been advised by the treating physician not to use her right superior limb. We further find that the worker is entitled to wage loss benefits.

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 1st day of September, 2005

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