Decision #30/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 12, 2005, at the request of a worker advisor, 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

In March 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a right shoulder injury that he related to the assembling of "small parts" during the course of his employment as an assembler. The accident date was recorded as being December 15, 2002 and was reported to the accident employer on March 4, 2003. The worker stated that he delayed in reporting the accident to his employer as he thought the pain in his shoulder would go away.

Initial medical information showed that the worker was treated on March 4, 2003 and was diagnosed with a rotator cuff strain. X-rays of the right shoulder revealed a slight superior migration of the head of the humerus but no other abnormality of the shoulder joint was seen. There was slight degenerative change in the AC joint.

In a letter to the WCB dated March 12, 2003, the accident employer outlined its position that this was a fraudulent claim due to a number of reasons, e.g. the date of accident (e.g. December 15, 2002) was a Sunday and that the worker was not working on that date; the worker filed the claim as a result of a verbal reprimand he received on March 3, 2003 regarding two inappropriate acts.

In April 2003, a WCB adjudicator contacted the worker, the employer and several co-workers to gather additional information concerning the reported accident.

On April 30, 2003, the worker was advised by the WCB that his claim for compensation was denied based on the following factors:
  • the employer was not aware of any injury taking place on or around December 15, 2002;

  • the worker continued to work at his regular duties until January 31, 2003 without informing the employer of any ongoing difficulties with his right shoulder. There was also no medical attention sought during this time period;

  • the worker returned to work on February 24, 2003 following a 3 week lay-off period. He did not report any ongoing difficulties to his employer until March 4, 2003.
On February 6, 2004, a worker advisor, acting on behalf of the worker, asked the WCB to reconsider its decision to deny the claim based on evidence provided by the worker's treating specialist dated January 29, 2004. The worker advisor also referred to a memo on file dated April 24, 2003 which contained evidence from a co-worker that the worker began to have shoulder difficulties after working on manifolds in mid December of 2002.

On March 5, 2004, the WCB confirmed its earlier decision that the claim was not acceptable. The adjudicator stated, "Although [the specialist's] findings would suggest that the mechanism of injury as described by Mr. [the worker] could result in the symptoms and diagnosis indicated, there is no new evidence to conclusively establish the injury occurred on December 15, 2002." On April 14, 2004, the worker advisor appealed this decision to Review Office.

On May 14, 2004, Review Office upheld the decision to deny the claim based on the following factors:
  • the worker's lengthy delay in reporting his right shoulder injury to the employer and his delay in seeking medical treatment; and

  • the worker was aware of WCB reporting requirements as he had seven prior WCB claims.
In October 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

We were asked to consider whether the worker's claim is acceptable. For the appeal to be successful we must find that the worker was injured in the workplace. We did find that the worker was injured in the workplace and that his claim is acceptable.

Evidence and Argument at Hearing

The worker appealed the denial of his claim. He was represented at the hearing by a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the Panel. The employer was not represented at the hearing but provided a written submission.

The worker advised that the accident occurred on December 13, 2002. The worker described his employment duties which involve manual labour in an equipment manufacturing facility. He described his work activities on December 13, 2002, the date that he was injured at work. On this day he was assembling manifolds. He described the mechanics of this job, including the movements and pressure required to perform the job, the equipment used and the size of the manifolds. He noted that he began to have pain in his right shoulder after he completed a few units. He continued to perform his duties, with some pain. He did not report the injury to his employer. He thought he had a pulled muscle which would heal with time. He did not work on manifolds again until March 2003, and did not have a further exacerbation of pain until he worked on manifolds in March 2003. The employer confirmed that there was no work on manifolds in the facility in January or February 2003.

The worker was laid-off from January 31, 2003 to February 24, 2003. The worker expected the injury to resolve over this time. It did not resolve. When he returned to work on February 24, 2003, his shoulder condition had not improved. On March 3, 2003, he worked on manifolds again. He testified that he "…got to a spot where I really had to pull on it and it hurt again." He notified his employer the day after this incident.

The worker denied that he was disciplined on March 3, 2003 over an incident involving delivery of scrap. He outlined the facts surrounding the incident. He stated that his employer spoke to him about the incident but did not give him a warning or indicate that he was being disciplined. He received written notification that he was terminated on April 4, 2003. The termination letter noted that the termination was retroactive. Until he received the termination letter he was not aware that he had been terminated and had expected to return to work with the employer after he had recovered from his injury.

The worker advised that he received treatment for his injury and subsequently found employment with a different employer.

The worker's representative submitted that the evidence established that the worker was injured while performing his duties. He noted that a co-worker confirmed that the worker complained of the injury and that the medical evidence is consistent with the injury as reported by the worker. The representative noted that although the worker did not report the injury to the employer within 30 days, the worker offered a reasonable explanation for the delay in reporting and that the worker's claim is a just one and should be allowed.

In a written submission the employer noted that the worker did not report the accident in December 2002 and did not make a claim until March 2003 when he was subject to disciplinary action for an unrelated incident. The employer disagreed with the treating specialist's opinion regarding the relationship between the work and the injury. The employer stated "We believe that there is no basis to state that the injured shoulder is related to the assembly work."

Analysis:

Having considered all the evidence including the worker's testimony at the hearing, we find on a balance of probabilities that the worker's claim is acceptable. We accept the worker's evidence that the accident occurred on December 13, 2002.

We accept the worker's description of the injury and his explanation for not notifying the employer immediately. We find the worker did notify the employer when it became clear to him that the injury was not going to resolve. We note that a co-worker provided independent confirmation of the worker's complaint of injury.

We find that the mechanism of injury described by the worker and injury suffered are consistent with the medical evidence on file. In this regard we note the comments from the worker's treating specialist. In a report dated January 29, 2004 the specialist commented that:
"He had a posterior labral tear, an anterior labral tear, and a chronic rotator cuff tendinitis involving his right shoulder. This occurred as a direct result of an injury in December 2002, when during his assembly of manifolds, he was doing some fairly heavy torquing and felt something suddenly let go, with quite sudden onset of pain posteriorly in the shoulder. He was laid off. The shoulder was not too bad, but he had marked aggravation of his symptoms once he returned to work because of the repetitive nature of the work. He had MRI and arthroscopic evidence of his labral damage. I believe the initial insult to the shoulder was the work place accident and then further continued aggravation by the nature of the work. Because of the injury, he was restricted from doing any work at shoulder level or above, and was advised not to do any heavier repetitive lifting."
In accordance with subsection 17(5) of The Workers Compensation Act, we find this is a just claim and should be allowed. Accordingly we find the worker's claim is acceptable and the appeal is allowed.

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 24th day of February, 2005

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