Decision #59/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 2, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on February 2, 2005 and again on March 10, 2005.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On December 16, 1999, the worker submitted a claim to the Workers Compensation Board (WCB) for a left shoulder injury that allegedly occurred in the workplace on September 9, 1999. On this date, the worker stated that she was pulling up a blanket on a single bed during her work activities as a healthcare attendant when she felt a stabbing pain in her shoulder. The worker did not report the accident to her employer until December 15, 1999 as she thought her injury was minor but now found out it was more serious.On January 4, 2000, the worker completed a WCB questionnaire with respect to her claim. Based upon the information provided by the worker on this form, the WCB denied the claim for compensation on February 4, 2000. The WCB was of the view that the weight of evidence did not establish an accident occurred given the delays in reporting and seeking medical treatment (i.e. the worker reported that she first sought treatment on December 13, 1999), the lack of any witnesses to substantiate that the incident occurred or that ongoing difficulties were experienced.
In a submission to the WCB dated June 2, 2004, a worker advisor provided additional medical information for primary adjudication to consider along with a list of witnesses to attest to the worker's ongoing difficulties. The worker advisor stated that the correct date of injury was actually September 2, 1999 as opposed to September 9, 1999 and that the worker sought chiropractic treatment on that date.
A chiropractor's first report showed that the worker was examined on September 2, 1999. The worker's description of accident was "using arm at homecare". The diagnosis rendered was "left rotator cuff strain/sprain, left CT sprain/strain".
A doctor's first report showed that the worker was examined on December 13, 1999. The diagnosis rendered was a possible rotator cuff or other tear of the left shoulder. The physician commented "she definitely injured shoulder in Sept. while at work. Didn't report it as it 'didn't seem bad enough' - reliable patient. I feel this is a definite WCB case and would like her in therapy".
An operative report dated March 15, 2002 diagnosed the worker with a rotator cuff tear and chronic impingement of the left shoulder.
The treating orthopaedic surgeon stated in a report dated June 25, 2002 that the worker's shoulder was improving but a return to work would be postponed until after a trial work session around early September.
On April 19, 2004, the attending physician responded to a number of questions that were asked of him by a worker advisor. The attending physician ultimately outlined his position that the worker's shoulder pain was directly related to her work injury.
In July 2004, the WCB contacted several witnesses that the worker claimed were aware of her difficulties.
On July 27, 2004, the WCB confirmed its earlier decision that an accident had not been established based on the following evidence:
- an accident at work was not reported to the employer until December 15, 1999;
- the witnesses were unable to recall an accident at work resulting in a shoulder injury;
- the chiropractic reports of September 2, 20 & 23, 1999 did not support the diagnosis provided by the operative report.
In a decision dated September 19, 2004, Review Office confirmed that the claim was not acceptable. Review Office felt there was insufficient evidence to conclude that the worker sustained an injury to her left shoulder as a result of a specific accident or incident as she described occurring at work in September 1999. On October 21, 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.
Following the oral hearing held on February 2, 2005, the Appeal Panel asked for additional information from the worker's treating orthopaedic surgeon. On February 18, 2005, the orthopaedic surgeon responded to the Appeal Panel's request for information and his reports were forwarded to the interested parties for comment. On March 10, 2005, the Panel met to further discuss the case and considered a submission from the worker advisor dated February 24, 2005.
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) A wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
We found the worker to be a credible witness and we accept her evidence that she did in fact seek the treatment of a chiropractor right away following the incident at work. Her failing to mention the visit to the chiropractor in her response to the WCB’s letter of enquiry dated December 29, 1999 was predicated on her misunderstanding of the following question. “We understand that you may not have sought treatment for this injury until December 13, 1999. When was the first time you attended a doctor for this injury?” (Emphasis added)
The worker testified at the hearing that she sincerely believed a chiropractor was not the same as a medical doctor for purposes of a response to this question and therefore she made no mention of her September 1999 visit to her chiropractor. As an aside, this is not the first time that we have encountered similar confusion in the minds of various workers on this question. As a suggestion, we recommend, if it has not occurred already, that the wording of this question be amended to include a chiropractor in the alternative.
Subsequent reports received by the WCB from the worker’s treating chiropractor confirmed his advice to her that her shoulder difficulties were in his opinion work related. As well, continuity of ongoing medical symptoms being experienced by the worker is evidenced by her contacting her treating physician in October of 1999. The earliest possible appointment date that was made available to the worker was December 13, 1999. It was at this point that the worker then initiated her claim.
Succeeding medical examinations revealed a tear in the rotator cuff area. An MRI of the left shoulder conducted on December 16, 2000 revealed, “A very small partial thickness tear of the supraspinatous tendon near its insertion.”
In addition, we also accept the treating orthopaedic surgeon’s opinion evidence that the worker sustained an injury, which eventually required surgery for correction. Specifically, we refer to his letter of February 18, 2005 to the Appeal Commission, in which he states, as follows:
“My initial consultation note, October 24, 2000, does not discuss at length the possibility of her particular injury resulting in a rotator cuff tear. Patients in the fifth decade of life are frequently developing degenerative changes in the rotator cuff as a result of wear and tear and minor injuries sustained during life. Obviously flipping a feather blanket up would not be sufficient to cause a full thickness rotator cuff tear in a previously normal shoulder. However, it could quite likely be the type of injury that would take a degenerated but minimally symptomatic shoulder, to an increased level of damage sufficient to cause ongoing persistent symptoms.
Most likely there was a chronic wear and degeneration, with superimposed acute injury, albeit not major or dramatic.”
After having thoroughly considered all of the evidence, we find that the worker did, on a balance of probabilities, sustain an accident arising out of and in the course of her employment resulting in injury. The definition of accident under the Act having been satisfied, we therefore further find the claim to be acceptable. Accordingly, the worker’s appeal is hereby allowed.
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 April, 2005