Decision #35/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on November 23, 2005, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal on November 23, 2005 and again on February 17, 2006.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On March 19, 2004, the worker contacted the call centre at the Workers Compensation Board (WCB) to report right elbow difficulties that began in January 2000 as a result of the following work activities:"My job was with my right arm, I had to pull 4,800 rollers, each roller weights (sic) about 8 lbs. I had to pull these rollers out of the side of a box and I had to pull the roller out, hang it on the side of the box and then I had to hang the rolls on the side of the cart so that my coworker, [name] could go and wash the hog roller. …I was only working with one arm at the time. I just had surgery on August 19, 1999 to my left shoulder which is another WCB claim. My employer said that they had a light duty job for me after my return from my left shoulder surgery and that is what I was doing when my right elbow started bothering me, I was pulling rollers out all day long."The worker further advised the call centre that he first noticed symptoms in the middle of the year 2000 as he was still continuing with the roller duty tasks. He stated that he kept complaining to his foreman but the foreman's response was that he was faking it and that he just wanted more time off. The worker indicated that his employer had known about his right elbow problems all along and that he reported his difficulties to them sometime in 2000. He suspected that his foreman threw away his green card related to his right elbow.
The Employer's Accident Report dated March 12, 2004, indicated that the worker had made no complaints to the health unit relating to his right elbow difficulties before February 11, 2004. The occupational health coordinator indicated that the worker did not fill out a green card specifically for his right elbow as he believed that this was an old injury. Upon searching the worker's medical file, there was nothing documented about the right elbow nor was there any mention of it in the company physician's notes.
On March 26, 2004, the worker advised his case manager that he had difficulties with his right elbow after doing rollers for 1 or 2 months. He indicated that he reported his elbow difficulties to his foreman. He filled out a green card but found the green card in the garbage shortly thereafter. The worker noted that he went to see his doctors about other problems and that he would mention his right elbow difficulties.
On March 29, 2004, the WCB case manager contacted the worker's supervisors to gather information concerning their knowledge of the worker's right elbow difficulties. Four supervisors all stated that they were not aware of the worker's right elbow difficulties.
In a decision dated March 31, 2004, the WCB case manager denied the claim for compensation as he was unable to establish that the worker's job duties in 2000 caused his right elbow difficulties. The case manager outlined his position that the worker did not report his right elbow difficulties to his employer in 2000 and there was a lengthy delay in the worker seeking medical attention.
On June 28, 2004, Review Office rendered six decisions concerning a number of issues bought forward by the worker. In particular, Review Office determined that the worker's claim for right elbow difficulties was not acceptable. Review Office noted that the worker was attributing his problems in 2004 to his arm being sore for 4.5 years since the year 2000. It noted that the employer had no knowledge of any elbow complaints until February 11, 2004 and that the worker was required to notify their employer about an injury no later than 30 days after the happening of an accident.
In April 2005, the worker's union representative asked Review Office to consider a February 23, 2005 report from the worker's treating sports medicine specialist. The specialist stated that the worker had recently been off work since April where he was working light duties removing hundreds of rollers out of a box per day. The specialist noted that the worker has had other problems with his left rotator cuff and carpal tunnel like symptoms and that this pain began at that point in time and has persisted. He noted that the worker's symptoms have not resolved. The specialist indicated that the worker had a clinical diagnosis of common flexor tendonitis which was ongoing for over 8 months. He stated that it was historically related to the worker's overuse circumstance at work.
In a decision dated May 20, 2005, Review Office stated that it was unable to determine that the worker had reported elbow problems since 2000 to his employer or to his doctor prior to 2003. In the opinion of Review Office, there was insufficient evidence to establish that the worker's elbow problems since 2000 were related to an accident arising out of and in the course of his employment. In arriving at its decision, Review Office placed weight on the following factors:
- the worker made no complaints about his right elbow to the employer's Health Unit before February 11, 2004;
- four of the worker's supervisors all stated that there was no mention of right elbow difficulties;
- the clinic that the worker attended for treatment indicated that the worker was first seen for right elbow problems in 2003;
- Review Office contacted the worker's physiotherapist and the first mention of right medial elbow problems in her chart notes was on June 24, 2003.
Following the oral hearing, the appeal panel met to discuss the case and decided to obtain additional information from the worker's treating orthopaedic specialist and the employer's health unit prior to discussing the case further. On December 15, 2005, all parties were provided with the information that was requested and received by the appeal panel and were asked to provide comment.
On January 11, 2006, the panel requested further information from the employer's health unit. On February 3, 2006, the information received from the employer's health unit was forwarded to the interested parties for comment. On February 17, 2006, the panel met to consider the case and rendered its final decision.
Reasons
The issue before the panel is whether the worker's claim is acceptable. At the hearing the parties agreed that the claim relates to the worker's right elbow condition. For the appeal to succeed the panel must find a causal relationship between the worker's right elbow condition and his job duties. The panel is not able to find a relationship and concludes, on a balance of probabilities, that the claim is not acceptable.Evidence and Argument at Hearing
The worker was represented by a union representative who made a presentation on the worker's behalf. The worker answered questions posed by his representative and the panel. The employer was represented by an advocate who made a presentation on behalf of the employer. A production supervisor also attended on behalf of the employer.
The worker advised that he has worked for this employer since 1973. He described the various jobs he has performed at this employment over the years. He explained that he suffered several injuries to his upper limbs including both shoulders and his right wrist. The worker described the duties he performed between 2000 and 2004. The worker acknowledged being off work for approximately 14 months for carpal tunnel surgery, returning to work in approximately January 2003. On his return to work the worker was assigned light duties.
The worker advised that in 2003 his duties changed frequently. He advised that he was on the kill floor "once in a while" in 2003 and this included sharpening knives and recording tattoo numbers. With respect to the rollers, the worker stated that after October 2003 "I did it here and there, but not very long." The worker also worked in the laundry and placed labels on boxes in the cooler.
With respect to the right elbow injury, the worker advised that he had pain in the right elbow area commencing in 2000. In answer to a question regarding the continuity of his pain from 2000 until 2003, the worker advised that "The pain was always there, the same pain all the time…." The worker indicated that he advised his supervisor at that time and completed a green card which he later found in the garbage. He also advised that he discussed his condition with the employer's occupational health nurse.
The worker's representative submitted that the panel should consider the historic nature of the worker's job duties when considering this claim. She noted that the evidence shows the worker has a right elbow condition and that a physician has described the condition as related historically to the worker's overuse circumstances at work. The representative noted that the elbow condition was first identified in 2003 in a report from the worker's treating physiotherapist.
The employer's advocate submitted there is insufficient evidence to establish that the worker's right elbow condition is related to an accident arising out of and in the course of his employment. She noted that the worker has had other claims and is familiar with claim reporting procedures. She also noted that his four supervisors have advised the WCB that the worker did not complain to them about his elbow.
Subsequent to the hearing the panel sought additional information including the information from the employer's health unit pertaining to the worker. The employer provided copies of medical charts for the period from 1999 to 2003. The employer also provided confirmation of the duties performed by the worker from August 2003 to spring 2004.
Analysis
The panel has considered all the evidence including the evidence provided at the hearing and the evidence received and shared with the parties after the hearing. The panel finds, on a balance of probabilities, that the worker's claim for his right elbow condition is not acceptable.
Initially, the worker attributed the right elbow condition to working with the rollers in 2000 after he returned to work from a left shoulder injury. The worker indicated that he reported his condition to his supervisors and the employer's occupational health nurse.
The worker's representative submitted that the worker did a physically intensive job for many years and that the worker felt his right elbow condition developed when he was working in alternate work, a one-handed job using his right hand only.
The worker's supervisors do not recall the worker reporting a problem with his right elbow. The panel sought and obtained copies of the medical records maintained by the occupational health nurse. These records do not refer to a right elbow condition and do not substantiate the worker's position that the injury arose in 2000. The panel also notes that the worker received medical treatments in and after 2000 yet there are no reports of his right elbow condition until 2003. Finally, the panel notes that the worker was examined by a WCB medical advisor in March 2003. The medical advisor examined the worker's arms but did not report any significant findings in relation to the worker's right elbow. The panel is not able to find that the condition commenced in 2000 as a result of employment duties.
The panel finds, on a balance of probabilities, that the evidence does not demonstrate a relationship between the worker's elbow condition and his work duties. As noted above, the panel finds that the worker's condition is not related to the roller duties performed in 2000. The panel finds that the worker did little work in the roller area after his return to work in January 2003. The panel also finds that the right elbow condition is not related to other work duties performed by the worker in 2003. The panel accepts the evidence of the worker's supervisor that from August 2003 until spring 2004 the worker's duties included recording data on the kill floor, assisting with laundry duties with no lifting and sharpening knives. These duties were described by the worker at the hearing. The panel finds that the evidence does not support that these duties caused the worker's right elbow condition.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of March, 2006