The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 18, 2005, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on July 19, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On October 9, 2000, the worker filed a claim with the Workers Compensation Board (WCB) for left arm difficulties that she attributed to a change of job duties during her employment activities as a "repairer - machine operator". The accident date was recorded as being November 19, 1997.

In a memo to file dated October 19, 2000, a WCB adjudicator documented that she contacted the worker to obtain additional information. The adjudicator spoke with a family friend who was acting as an interpreter for the worker. The interpreter indicated that the worker had been off work since November 1997 for her left arm difficulties. On April 17, 1997, the worker underwent heart surgery and had a pacemaker implanted on June 17, 1997. On June 19, 1997, the worker again underwent surgery to repair a wire that came off the pacemaker. The interpreter noted that the worker has not worked for the last two years as she can't lift her hand to comb her hair and has a hard time putting on her clothes.

Later in the day, the interpreter called the adjudicator back to indicate that the worker worked for three months after her heart surgery without any problems. On November 17, 1997, the worker was told to use a machine that had double needles. The worker told her supervisor that she could not use the machine as her arm was sore but the supervisor told her she had no choice. The worker indicated that she had worked for the employer for over 25 years and the machine that she always used had only one needle.

In a memo dated November 6, 2000, a WCB adjudicator stated that she contacted the employer and spoke to staff in payroll. It was indicated that the worker went off work in 1997 because of heart problems and surgery. The worker was terminated from employment as she was absent from work for one year. The adjudicator spoke with the worker's supervisor who checked his records. He could find no information that the worker had any left arm problems in 1997. He noted that the worker did work on 'repair' and then was placed on another job, but he could not see anything to indicate that the worker had a problem with that.

In a memo dated November 8, 2000, the adjudicator noted that she spoke with the translator who indicated that the worker had been having trouble with her left arm between August 1997 and November 1997 because "when she returned from her surgery her employer had given her regular job to some one else and put her on another job. The other job involved sewing all day and using heavy material."

On November 15, 2000, the WCB adjudicator spoke with the worker's supervisor. The worker was put on her regular repair job when she returned from heart surgery in August. As there wasn't enough work at that job to keep the worker busy all day, the employer gave her another job that she did for about half of each shift. The worker alternated between her repair duties and the new job for about 4 hours on each shift. The new job was to prep pockets. The employer stated that no co-workers could remember the worker making any complaints of having arm pain from either her regular job or the new duties.

On December 18, 2000, the worker's treating physician provided the WCB with a narrative report outlining the dates, entrance complaints and examination findings when he treated the worker for left arm and shoulder pain commencing November 10, 1997.

In a decision dated December 21, 2000, Rehabilitation & Compensation Services denied the claim as it was unable to establish a relationship between the worker's left arm difficulties and an accident in the workplace.

On January 10, 2001, the worker disagreed with the above decision and the case was referred to Review Office for consideration. The worker indicated that she reported her left arm difficulties to her immediate supervisor in 1997. The supervisor told her that there was no room for accommodation and instead of assigning her light duty work she was assigned even heavier work duties. These heavier work duties deteriorated her condition to the extent that she was unable to perform them.

In a January 26, 2001 decision, Review Office confirmed that the claim was not acceptable. On a balance of probabilities, Review Office felt that the worker's time loss beginning on November 19, 1997 was more likely related to the worker's non-compensable health problem and its surgery than to the worker's employment. Review Office was unable to identify that the worker had experienced an accident as required by the legislation.

On September 28, 2004, a worker advisor provided Review Office with new medical information dated August 6, 2004. The worker advisor noted that the physician provided an opinion that the repetitive movement of working on the double needle sewing machine caused problems with the worker's left arm that in turn caused problems with her pacemaker. The worker advisor also outlined his position that it was imperative to establish the level of repetition involved in the duties that the worker was required to perform when she returned to work in August of 1997.

On January 12, 2005, Review Office determined that no change would be made to its decision of January 26, 2001. Review Office stated that it was unable to determine from the whole of evidence that the worker suffered personal injury by an accident arising out of and in the course of her employment. On February 22, 2005, legal counsel, acting on the worker's behalf, appealed Review Office's decision of January 12, 2005 and an oral hearing was arranged.

Reasons

The Panel was asked to determine whether the worker's claim is acceptable. For the worker to be successful the Panel must find that the worker suffered an injury by accident which arose out of and in the course of her employment. In other words, the Panel must find that the worker's condition is causally related to her workplace duties. The Panel was not able to reach this conclusion.

Evidence and Argument at Hearing

The worker was represented by legal counsel who made a presentation on her behalf. The worker answered questions posed by her representative and by the Panel. The worker called her daughter and husband as witnesses. The worker was assisted at the hearing by an interpreter.

The employer was represented by two staff persons who provided information to the hearing and answered questions posed by the Panel.

The worker attributed her condition to her work duties, specifically the operation of a double needle sewing machine at work on November 17 and 18, 1997. She noted that this was a change from her regular duties. She demonstrated the movements involved in using the double needle machine.

The worker's representative submitted that the only explanation for the worker's condition is that it was caused by her work on a particular sewing machine over a two day period. He noted that the physicians who have seen the worker have not said her condition is due to her heart condition. He noted that "So the only thing you have before you, the kind of machine she operated for a relatively short period of time appears to be the basis, the genesis of her present condition."

The employer representatives provided some historical information and information on the current operations. They acknowledged that changes have been made to the operations at the employer premises since 1997, that the equipment and work station is no longer available or used, and that they were not involved at this specific workplace in 1997.

The worker's witnesses provided information regarding the injury and its impact upon the worker.

Analysis

After considering all the evidence including the information provided at the hearing, the Panel finds that the worker's claim for injury is not acceptable. The Panel finds, on a balance of probabilities, that the worker's injury is not related to her workplace duties. The Panel has given serious consideration to the position advanced on behalf of the worker that her workplace activities caused her medical difficulties but is unable to find on a balance of probabilities that this is the case.

In arriving at its decision the Panel places significant weight on the opinion of the initial examining physician. This physician attended to the worker at the time of her difficulties following her non-compensable surgery in 1997 and both before and after she ceased work on November 19, 1997. This physician completed a "Statement of Attending Physician" form dated December 12, 1997. When asked to describe the illness and cause of the illness or disability, the physician responded "Since her pacemaker insertion pt has been c/o pain at the scar site. Pain lt [left] chest neck area". When asked whether this is a Workers Compensation or any other insurance claim the physician checked off "NO". When asked for her final diagnosis, she replied "Muscular pain lt [left] chest and arm, Fatigue Dyspnea".

The Panel considered the information provided by the worker's current treating physician. The Panel notes that this physician first saw the worker in February 2000 which is more than two years after the worker's difficulties commenced. In a report dated August 6, 2004, the physician noted that the worker's injury is work related due to the repetitive nature of the worker's job. The physician also noted that the injury is permanent and severe.

At the hearing the Panel sought information from the worker regarding the nature of her duties. Based on this information and the information on the claim file, the Panel concludes that the worker's duties were not repetitive enough to cause the worker's condition. The Panel therefore attaches little weight to the opinion of the current treating physician.

After considering all the evidence, the Panel finds that neither the worker's duties after she returned to work on August 18, 1997 nor the time spent by the worker operating the double needle sewing machine on November 17 and 18, 1997 caused the worker's current disabling condition. The worker's claim is not acceptable.

The worker's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of September, 2005