Decision #143/99 - Type: Workers Compensation
An Appeal Panel hearing was held on September 10, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this case on September 10, 1999.
Whether or not the claim is acceptable.
That the claim is acceptable.
On January 7, 1999, the claimant stated he was working in the scale room pushing boxes with his hands when he bent his middle finger back and felt pain in his hand. The claimant reported a fracture to his 3rd metacarpal. X-rays taken the same day revealed an oblique fracture through the proximal mid shaft of the 4th metacarpal. No significant displacement of the fracture fragments was seen and there was no other joint abnormality identified.
A memorandum, dated January 11, 1999, from the employer's Health Services Coordinator, requested a full investigation into the claim. The coordinator noted that the claimant came to the health centre on January 7, 1999, complaining of a soreness in his right hand. The area was iced and there was full range of motion with no evidence of swelling. The claimant then went home stating he would rest his hand and would be back at work the next day. When the claimant came to work on January 8th, his right hand was in a cast and he pointed to the 3rd metacarpal bone indicating that he had fractured it. The claimant advised the nurse that he was pushing boxes with his hands and thought his middle finger might have bent slightly back. The nurse then stated that she questioned the company physician. He was of the view that the only way a bone could have been broken was with direct impact (clenched fist against a hard surface like a wall) or if something had fallen and landed directly on the bone. He stated that if the middle finger had bent backwards it would have dislocated or broken but the metacarpal would not have fractured.
On February 10, 1999, the claimant told a WCB adjudicator that on the day of accident he was pushing a box weighing approximately 60 pounds with his hands because the strap from the box got caught. He immediately felt pain in right hand and saw the company nurse. The claimant advised that he had no prior problems with his right hand. The adjudicator asked the claimant why he put the 3rd metacarpal middle finger on his report of injury. The claimant stated that he felt pain in both fingers but was not sure at first which one was fractured. He advised that the company nurse told him it was a sprain/strain but he went to see the doctor after work.
On the same day, the case was reviewed by a WCB medical advisor at the request of the adjudicator. The medical advisor agreed with the company's physician that it was difficult to relate the diagnosis (fracture of the 4th metacarpal) with the stated mechanism of injury. On February 15, 1999, the claimant told the WCB adjudicator that a foreman was in the room when the accident happened. The claimant was adamant that he did not come to work with a broken hand or that he had been involved in any fights.
On February 16, 1999, primary adjudication determined that the claim for compensation was not acceptable on the basis that it was unable to substantiate the fracture was caused by a workplace injury given that there was no direct blow or trauma to the right hand. This decision was appealed by the claimant's union representative on February 26, 1999.
Prior to considering the appeal, Review Office arranged for a work place assessment to clarify how the claimant performed his job and the mechanism of injury. The work place assessment was carried out on March 22, 1999 and the process was videotaped. Following review of the videotape with a WCB medical advisor, the Review Officer documented that the mechanism of injury did not fit with the diagnosis. Review Office was unable to see how it was possible for the diagnosed injury to come about "even if a box were stuck and the worker had to use force to move it along."
On April 9, 1999, Review Office confirmed that the claim for personal injury arising out of and in the course of employment was not acceptable, based on Sections 1(1) and 4(1) of the Workers Compensation Act (the Act). Review Office was of the opinion that even though the worker attended a physician approximately 1 hours following his departure from his place of employment on the date of the said injury, the diagnosis did not fit in with the described activities as noted by the worker on January 7, 1999. Review Office found that the weight of evidence, including the opinions by the employer's physician and that of the WCB medical advisor, support that the diagnosed injury did not arise out of and in the course of the worker's employment activities on January 7, 1999.
On May 14, 1999, the union representative requested an Appeal Panel hearing contending that the investigation by Review Office and the videotape investigation did not accurately reflect the activity of the worker at the time of the accident. An oral hearing took place on September 10, 1999.
Section 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 accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, “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,
(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.”
The claimant’s appeal to Review Office was rejected primarily on the basis that the WCB medical advisor, who reviewed the file, found it “difficult to relate the diagnosis with the stated mechanism of injury.” However, with all due respect, we were able to reach a different conclusion as to the manner in which the claimant fractured his proximal mid shaft of the 4th metacarpal.
In this regard, we attached considerable weight to the claimant’s oral testimony. On the day in question, the claimant, who is right hand dominant, began his shift by boning out hams in a ham line for the first two hours. He then went to work in the scale room where his duties included weighing, tagging and forwarding boxes of product to the shipping department. According to the claimant, the boxes ranged in weight anywhere from 7 to 70 pounds. He described the accident as follows:
“So once in a while you have to shove the boxes to get it through before they jam up. And I was shoving a box and there’s a little notch in the railing, which you’ll see in the video, and I just shoved it and it caught and it stopped dead, a 60 pound box. It stopped dead and that was it, I broke it.”
A few minutes later the claimant went to see the company nurse as the pain in his hand became more severe. The description of the accident was written down by the nurse and not the claimant because he couldn’t write with his injury.
Q. So you signed with your left hand?
Q. So your not left-handed?
Q. You are right-handed?
A. I’m right handed.
Q. So why would she say –
A. Because when I went to see the nurse, I complained. I said there was a shooting pain up to my fingertips. I said, “I’m not sure what happened”, because you’re in shock. “While I was pushing it”, I said, “I don’t know whether my finger went back or what, but I’ve got a shooting pain up to my fingertips.”
The nurse instructed the claimant to put an ice pack on his hand and to go and sit in the cafeteria. While there, the claimant’s hand began to swell “to twice the normal size.” The condition of the claimant’s hand was observed by many of his co-workers. A short time later, the claimant left the plant and went to see his family doctor. The treating physician had X-rays taken of the claimant’s right hand and immediately thereafter had the hand placed in a cast.
In light of the foregoing evidence, we find, on a balance of probabilities, that the claimant did suffer an accident within the meaning of the Act which resulted in the injury to his hand.
Accordingly, the claim is acceptable and therefore the appeal is hereby allowed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of October, 1999