The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on October 14, 1999, at the request of the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On August 1, 1998, the claimant stated that he was lifting boxes at work when he felt an intense pain in his right shoulder and down his arm after lifting a box weighing approximately 50 pounds. According to the claimant the accident was reported to his supervisor and was witnessed by a co-worker. No time loss was reported. On August 19, 1998, the attending physician diagnosed a muscular strain right scapula/shoulder region. Also of note was that the claimant had previously fractured his right clavicle while playing hockey in February 1998.

The next medical report was from a sports medicine specialist dated September 3, 1998. The specialist indicated that the claimant began having problems with his right shoulder some time in August 1998 when he lifted some objects out of a truck. The specialist was of the opinion that the claimant developed myofascial pain syndrome involving various muscles around his shoulder girdle region.

The claim was accepted as a Workers Compensation Board (WCB) responsibility. As the employer did not feel the injury was work related, an Employer's Report of Injury form was not submitted. In early February 1999, the employer appealed the acceptance of the claim and requested a copy of the file in order to prepare for an appeal.

On March 26, 1999, the attending physician advised that the claimant underwent a complete examination of his right shoulder on March 10, 1998, and that the fractured right clavicle was completely normal at that time.

During a telephone conversation with a WCB adjudicator on April 9, 1999, the claimant indicated that in February 1999, he quit his job with the accident employer because of ongoing difficulties with his right arm and that he was unable to perform the required duties. The claimant then undertook lighter duties with another company but it was repetitive in nature and further aggravated his symptoms. The claimant laid off work on February 26, 1999, as his shoulder and arm were numb and painful. His employment with the second company ended on April 5, 1999 as he was unable to do the job. The claimant also confirmed that he had fractured his collar bone when playing hockey in February 1998 and his doctors had told him that his present shoulder difficulties were not related to the collar bone fracture. The claimant indicated that he was claiming time loss from February 26, 1999 and treatment to date.

Subsequent file documentation contained sworn statements taken from the general manager, warehouse manager and several co-workers. On May 11, 1999, the general manager indicated that the claimant left work early on August 19, 1999, to attend a walk in clinic because of his shoulder. When the claimant came back to work the following day he was questioned about what happened and if he was claiming compensation. The claimant advised that he would not claim compensation as he had broken his collar bone in 1998 and that his current difficulties were a result of that break. The claimant indicated that he was still covered under his school insurance. The claimant made no further complaints about his shoulder until he presented with a note requesting WCB forms. When asked why, the claimant said his school insurance wasn't covering it so the doctor told him to file with WCB. The general manager told the claimant that he did not report a work injury to him. The claimant did not pursue the issue further.

On May 11, 1999, a co-worker stated that the claimant did not mention anything to him about a work related shoulder injury. Whenever the claimant was asked to do heavier work such as lifting he couldn't because of his shoulder. Another co-worker indicated that he remembered the claimant complaining about his shoulder but did not know the cause. He was not aware of the claimant's injuring his shoulder at work or away from work.

A statement taken from the warehouse manager, dated May 11, 1999 indicated that the claimant did not report a work related injury but did mention that his shoulder was bothering him. The warehouse manager could not recall the exact date but it was sometime in August 1998, that the claimant told him he hurt his shoulder lifting a box at work.

On May 20, 1999, the employer’s appeal submission to Review Office indicated the following:

1. “No injury was ever reported to management.

2. When asked by our Operations Manger, [name], on August 19, 1998 and by myself on August 20, 1998, why he had attended the doctor on August 19, 1998, [the claimant] advised that his shoulder was sore as a result of an injury he had received playing hockey in February of 1998.

3. When [the claimant] asked for compensation forms the first week of September 1998, he indicated that he was going to claim for compensation for his sore shoulder because his school insurance would not cover this injury. I advised him that as he had not been injured at work he was not entitled to compensation.”

On July 23, 1999, Review Office determined that the claimant sustained an injury to his right shoulder by reason of an accident arising out of and in the course of his employment on August 1, 1998, and that the injury was reported within a reasonable time to one of the employer’s supervisors. The Review Office indicated:

• that the hockey injury, a fractured clavicle, had been confirmed by the attending physician to have healed by March 10, 1998. In addition, the injury diagnosed in August 1998 would not be compatible with a fractured clavicle but would be compatible with a lifting injury. Review Office stated it would not accept the employer’s contention that the shoulder injury stemmed from the hockey related injury.
• that the warehouse manager contended that the worker did not report a work related injury. However, in his sworn statement, dated May 11, 1999, he stated that in August 1998, the worker mentioned to him that his shoulder was bothering him and that he had hurt his shoulder lifting a box at work. This constituted reporting of an injury caused by an accident on the job. It was also apparent that the employer provided the claimant with lighter work after this and that the employer was also aware that the worker’s shoulder continued to bother him for some time.

On August 4, 1999, the employer appealed Review Office’s decision and an oral hearing was convened.

Reasons

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

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."

As the background notes indicate, the claimant reportedly injured his right shoulder while lifting a box weighing approximately 50 pounds. File information also reveals that the claimant had sustained a fracture of the mid shaft of his right clavicle five months prior to his work related accident. According to a report received from the treating physician, the claimant had completely recovered from this fracture prior to the incident at work.

The claimant sustained injury to his right scapular/ shoulder girdle region. The employer contends that the claimant did not injure his shoulder while in its employ, but rather, his shoulder difficulties were as a result of the previous fracture. We note, however, that the work injury was diagnosed as having occurred in a different anatomical site (scapular region) than the earlier hockey injury (right clavicle). We also find that the mechanism of injury is consistent with the claimant's work place activities, which involved heavy lifting.

The employer also contends that the claimant never properly reported the accident to the company. In a statutory declaration given to the WCB, the warehouse manager acknowledges the claimant mentioned to him in August 1998 that his shoulder was bothering him and that he had hurt it while lifting a box at work. We agree with Review Office that this communication by the claimant constituted sufficient reporting of an injury to the employer. It should also be mentioned that the claimant was given lighter duties after this incident with the warehouse manager and that the employer was aware of the claimant's continued shoulder problems.

In accordance with the evidence, we find, on a balance of probabilities, that the claim is acceptable. Therefore, the employer's appeal is hereby dismissed.

Panel Members

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 9th day of November, 1999