The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 29, 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 November 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report pain that he experienced in both shoulders beginning in November 2003 which he related to the following work activities: loading and unloading feed bags weighing 45 kgs. each, 160 bags per day, 5 days per week; climbing a ladder to get the feed bags and then placing the feed bags onto his shoulders and carrying the bags down the ladder to the ground. The date of accident was recorded as November 17, 2003 and the worker reported the accident to his employer on November 19, 2003.

The Employer's Accident Report indicated that the worker reported pain in his shoulders when reaching overhead. The employer believed there was no specific date of an accident and that the injury slowly became worse as the job required carrying bags of feed and climbing ladders. The employer commented that the worker reported the injury after his employment was terminated on November 17, 2003.

Medical information showed that the worker was seen at a hospital emergency facility on November 21, 2003. The report indicated that the worker was sent there by the WCB for his right shoulder injury and that he had been lifting heavy bags of animal feed. He stated that his pain was now severe and that he was unable to see his physician. The diagnosis rendered by the emergency physician was "acute or chronic right shoulder pain".

On November 21, 2003, x-rays were taken of the worker's right shoulder and AC joints. The results showed that the right AC joint was widened relative to that on the left and the appearance was compatible with a 2 degree separation. No fracture was identified.

On November 26, 2003, a WCB adjudicator contacted the worker and his employer to gather additional information pertinent to the specific job duties performed by the worker and the worker's reporting of the accident to his employer and why he had been terminated from his employment.

In a decision dated November 26, 2003, the WCB denied responsibility for the worker's claim based on the following factors:

"Given your employment was terminated on November 18, 2003; no mention of shoulder symptoms at your place of employment until November 19, 2003; no medical attention until November 21, 2003 and no definitive diagnosis, Rehabilitation and Compensation Services is unable to establish that you suffered a personal injury as defined in Section 1(1) of the WCB (sic) Act."

Subsequent to the above decision, the WCB received additional information from the worker's family physician dated December 3, 2003. The diagnosis rendered was a right AC joint separation and a bilateral shoulder sprain.

The worker underwent further x-rays of his right shoulder on December 4, 2003. The radiological report stated, "Appearances are consistent with a grade I acromioclavicular separation. This has become apparent since the March 4, 2003 exam."

On December 17, 2003, a WCB adjudicator advised the worker that the new medical information was reviewed and that she was unable to alter her previous decision. The adjudicator clarified that she could not relate the December 2003 diagnosis to the worker's November 2003 employment duties given that he had continued to work until he was let go and given the delay in the diagnosis until December 3, 2003.

On August 20, 2004, a worker advisor provided the WCB with a report from the worker's family physician dated July 10, 2004. The worker advisor believed that this report supported his position that the worker had suffered a compensable injury on November 17, 2003 as a result of his work activities.

In a response to the worker advisor dated September 1, 2004, the adjudicator stated that the new medical information did not alter her previous decision to deny the claim. On November 3, 2004, the worker advisor appealed the decision to Review Office.

On November 15, 2004, the worker advised Review Office that he was going to provide additional information for consideration. On November 18, 2004, Review Office received additional information from the worker.

On November 22, 2004, Review Office documented a phone conversation with the employer concerning the events of the claim.

In a decision dated November 22, 2004, Review Office determined that the claim was not acceptable. Review Office stated that the evidence did not support that the employer had been made aware of any physical problems or complaints of any aggravation had by the worker during his employment tenure, nor of any work event or accident until November 19, 2003, the day after the worker's employment had ended. The worker did not seek medical attention for any difficulties with his right shoulder during the period of his employment (except for August 22, 2003) until 3 days after his employment ended. Based on a review of the available evidence, Review Office was unable to confirm that the worker suffered personal injury by accident arising out of and in the course of his employment. On January 11, 2005, a worker advisor 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) 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.”

At the hearing, the worker was questioned very thoroughly about the job duties that he was performing at the time his shoulder difficulties began. He testified that he was loading and off loading a 5 ton truck with 45 kilogram bags of feed. At times, he would be required to climb up a ladder to the top of the truck and carry the bags of feed on his shoulder. According to his evidence, while unloading a truck on November 17, 2003 he felt a sharp pain in his right shoulder. We found the worker to be an extremely credible witness and we accept his evidence without any hesitation that he did in fact inform his employer of his shoulder difficulties on a timely basis.

It is interesting to note that the employer acknowledged during a conversation with the Review Officer on November 22, 2004 that “there is no doubt that the clmt’s [claimant’s] shoulder problems were contributed to by his work…”.

We find that the worker’s work activities are consistent with the occurrence of a shoulder separation. We further find that the worker sustained an injury arising out of and in the course of his employment. Inasmuch as the worker incurred an accident as defined by the Act, the claim is therefore acceptable. Accordingly, the worker’s appeal is hereby allowed.

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 13th day of May, 2005