The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 24, 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

On November 10, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for left upper elbow/forearm difficulties that he attributed to the repetitive nature of his work duties that involved connecting train line hoses during a work disruption between February 20 and March 13, 2004. The worker stated there were approximately 400 to 500 connections in a shift. He was not sure of the date that he sought medical treatment as he thought it (the pain) would go away. The worker said he saw the workplace occupational therapist twice for treatment and was given an arm and elbow brace. The worker said he told a senior production planner that his left arm was killing him from bucking the hoses.

The Employer's Accident Report dated November 15, 2004, indicated that they had no record of the worker's left elbow/forearm injury. The worker did not report an injury or provide any details to the officer on duty. He did report elbow discomfort to the occupational therapist on October 7, 2004 but did not report anything to his supervisor until November 2, 2004. The employer noted that the worker saw his doctor for a physical and casually mentioned his sore elbow. There was no time loss or lost wages incurred. The employer stated that it was contesting the claim as the worker told four supervisors that he built a garage with a cement pad in May 2004, that he laid gravel for his driveway and was driving a 4-wheel quad.

A Doctor's First Report showed that the worker sought medical treatment for his left elbow condition on October 26, 2004. The diagnosis rendered was a repetitive strain to the left elbow. In a telephone conversation with the doctor's office on December 7, 2004, the WCB case manager recorded that the worker did not see his doctor for elbow complaints in February or March 2004.

In a decision dated January 25, 2005, the worker was advised that his claim for compensation was denied. The case manager stated that:

• no injury could be confirmed from February/March 2004 as there was no medical treatment sought at that time;
• even if an injury did occur in February/March 2004 and the diagnosis was assumed to be a repetitive strain of the left elbow, it was unlikely that the 'strain' injury would persist for 8 months when the activity that produced the injury had been discontinued.

On February 17, 2005, Review Office considered the case based on an appeal submission by the worker dated February 1, 2005. Review Office stated that it was unable to verify that the worker had a personal injury attributed to his work duties during the work disruption or that the problems for which he sought medical attention in October 2004 were related to a work event. Review Office noted that the worker did not seek medical attention until seven months later for the alleged injury and therefore it did not know what the diagnosis was for the injury occurring in approximately March 2004. Although it had no confirmation that the summer activities brought about the worker's left elbow strain, Review Office said it equally had no evidence to show that a work event caused the worker's left elbow strain. In August 2005, a worker advisor appealed Review Office's decision on behalf of the worker and an oral hearing was arranged.

Reasons

The issue before the Panel was whether the worker's claim is acceptable. For the appeal to be successful, the Panel must find that the worker suffered a personal injury by accident which arose out of and in the course of his employment as required by The Workers Compensation Act (the Act). In other words, the Panel must find that the worker was injured in a work related accident. The Panel did find that the worker was injured at work and accordingly that his claim is acceptable.

Applicable Legislative Provisions

For a claim to be acceptable, the worker must first have an accident as defined in subsection 1(1) of the Act. Accident is defined as:

"accident" means 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.

Subsection 4(1) of the Act provides:

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.

Section 17 deals with the worker's duty to notify the employer.

Argument and Evidence at Hearing

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by his representative and the Panel. The worker called as a witness a co-worker who was familiar with the duties in the workplace.

The employer was represented by a staff person who made a presentation on behalf of the employer and by another staff person with technical expertise who answered questions regarding the workplace and the employer's operations.

The worker advised that at the time of the injury there was a work disruption and as a result he was working as a certified car inspector rather than his usual position. He described the duties of this position. One of the duties involved the inspection and testing of the air brake system, commonly referred to in the workplace as bucking. The worker demonstrated the actions involved in connecting the hoses. He advised that in the winter the hoses are less flexible and are more difficult to connect. He also described the task of changing brake shoes which was another of his duties at the time of the injury.

The worker described his February 20, 2004 injury and the initial symptoms. He advised that he reported to three officers of the employer. He advised that he did not seek medical attention and expected that he would recover after he returned to his regular duties.

The worker's witness answered questions regarding the tasks performed in the workplace, specifically regarding bucking and changing brake shoes.

The worker advisor submitted that the evidence establishes that the worker's left elbow injury arose out of and in the course of his employment. The worker advisor referred to the opinions of the workplace occupational therapist and the worker's treating physician as supporting the worker's claim.

The employer's representative advised that the employer agrees with the WCB and Review Office decisions. The representative noted that the worker did not report an injury in a timely manner. The representative provided a list of the training which the worker received dealing with workplace injuries and related reporting requirements. The representative noted there is a lack of medical information on the injury and that the worker did not seek medical attention from a physician until eight months after the injury occurred. The representative expressed concern about the role of the worker's non-work activities in the injury, specifically referring to the worker's role in building a garage. The representative also pointed to inconsistent information provided by the worker regarding the injury and his activities. She submitted that the employer has no documented evidence that the worker had a personal injury.

Analysis

The Panel has considered all the evidence on the claim including the evidence provided at the hearing and finds, on a balance of probabilities, that the worker did have a work related accident while performing the duties of a car inspector in February 2004.

Evidence was provided regarding the physical nature of the duties performed by the worker during the period that the accident occurred. With respect to the task of bucking, the worker's witness advised that the duty involves the whole upper body and back. "Its constantly exerting, pulling."

The employer's technical expert confirmed the possibility of an upper body injury in reply to these questions at the hearing:

Q: So you would agree then that it's an occupation where it would be possible to sustain an upper body injury such as an elbow/forearm injury that Mr. [the worker] has?

A: Wouldn't disagree with that, no.

Q: And would you agree that in the winter it's more likely, or that it's a more difficult job?

A: Yes.

The Panel notes the evidence of the workplace occupational therapist who treated the worker in September 2004. The occupational therapist stated that "The left elbow discomfort you have described could easily have come from coupling air hoses, particularly in cold weather. It is not uncommon with the Carman in [the workplace]."

With regards to reporting the accident, there was some disagreement between the worker and employer's technical expert regarding the identity of the worker's supervisor at the time of the injury. The Panel notes that this injury occurred during a work disruption and that usual lines of reporting and dealing with injuries were not always available. For example, supervisors worked together in line positions rather than in clear supervisory roles. As well, first aiders, who are often the first to be advised of an injury, were not present at the work site during this period.

The Panel notes the undisputed evidence of the worker that he reported the injury to his regular supervisor on March 8, 2004 and that his supervisor entered information on a computer regarding the injury. The supervisor is no longer employed by the employer. Unfortunately the employer has no record that this information was forwarded on to the appropriate office in the employer's operation and is not able to recover the information from the supervisor's computer. The Panel accepts the worker's evidence on this matter and notes that this supervisor has provided written confirmation that the worker advised him of his injury. The Panel also accepts the worker's evidence that he informed two other representatives of the employer of his injury. The Panel notes that these representatives confirm that the worker discussed his injury with them.

The Panel finds that the worker reported the injury to his employer as required by the Act.

With respect to the continuity of symptoms from the date of accident to date of first treatment, the Panel accepts the worker's evidence that the symptoms continued. The Panel notes that a co-worker has confirmed that the discomfort and pain to the worker's left elbow was brought up many times during conversations with the worker.

The Panel finds that the worker suffered a personal injury by accident as required by the Act and that the worker's claim is acceptable. Accordingly 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 9th day of January, 2006