Public Decisions | The Appeal Commission

Decision #40/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 15, 1999 following receipt of an appeal from the employer. The Panel discussed this appeal on February 15, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

On March 20, 1997 the claimant completed a Worker's Report of Injury or Occupational Disease for a right arm and shoulder injury. In her report, she indicated that on March 10, 1993, she noticed pain developing in her right arm and as the day went on, the pain worsened. The claimant went on to state that she sought medical treatment for her right arm complaints on March 18, 1997 and was referred for physiotherapy treatment. The claimant commenced losing time from work effective March 19, 1997. The initial medical report received from the claimant's family physician confirmed that he had seen the claimant for right arm complaints on March 18, 1997. The doctor provided a history stating the claimant developed slow onset of right arm pain while at work. A diagnosis of myofascial pain of the right forearm and supraspinatus tendonitis was made.

The Workers Compensation Board (WCB) adjudicator spoke with the claimant on the telephone on April 16, 1997. According to the memorandum covering their conversation, the claimant reported the following:

She was working alone and has had no prior problems. The employment duties include stapling and pinning tags to clothes, stapling tags to invoices, waiting on customers, processing clothes and invoices, computer entry, lifting bags of clothes and hanging them on line. The claimant reported she is right handed and feels that stapling and pinning 500 to 600 times per day caused her problems. The claimant had been performing these duties for six years with no recent changes in the work. The claimant stands five feet one inch tall. Duties require lifting bags of clothing from a bin just below waist height and lifting above the waist up to and over shoulder height which is done in the morning and again during the day as the bags become full.

The adjudicator spoke with the employer on April 17, 1997. The information with regard to the job duties provided by the employer was consistent with the information provided by the claimant however the employer reported that the claimant would not be required to lift above waist height.

A WCB medical advisor reviewed this file on April 22, 1997. Based on this review, the medical advisor expressed the opinion, on a balance of probability, that the nature of the claimant's duties would not have caused the right arm/shoulder complaints to develop.

By letter dated May 7, 1997, the WCB wrote to the claimant to advise her that her claim for benefits could not be accepted. In reaching this decision, the adjudicator stated the following:

It is further noted from the job description supplied by this worker and confirmed by her employer that the work is neither strenuous or highly repetitive to cause the claimant's condition."

Due to continuing symptomatology, the claimant was seen by an orthopeadic surgeon on August 27, 1997. Based on the examination, the surgeon was of the opinion that the claimant had developed a rotator cuff tendonitis. Conservative treatment was recommended however as a last resort, surgery to clean out the subacromial space to make more room for the cuff could be performed.

As the WCB was not able to accept responsibility for the claim, the claimant sought the assistance of a worker advisor. On August 27, 1997, the worker advisor wrote to the WCB requesting further consideration and provided the adjudicator with further information with respect to the employment demands.

Arrangements were then made for a Field Representative to meet with the claimant and a co-worker to obtain their signed statements which outlined the nature of the employment duties. As well, photographs were obtained which depicted the stapling of tags to the garments, hanging of the garments and the invoices. The adjudicator reviewed the new information, again consulted with a WCB medical advisor and on November 10, 1997, called the worker advisor to advise that there could be no change in the decision to deny responsibility on this claim. At the request of the worker advisor, the file was then referred to the Review Office for further consideration.

The Review Office addressed the appeal and on December 5, 1997, advised all interested parties that the claim was considered acceptable, as an accident as defined byThe Workers Compensation Act (the Act) was thought to have occurred. In rendering their decision, Review Office stated the following:

Review Office do note that the orthopaedist has mentioned the possibility of a surgical procedure as a last resort. Review Office would like to inform the worker that her claim is being accepted for a tendonitis condition only and that any surgery must first receive the approval of the board before it is considered as a board responsibility."

Subsequent to the acceptance of the claim, the medical documentation shows the claimant underwent arthroscopic acromioplasty of the right shoulder on May 28, 1998. Responsibility for this procedure was accepted by the WCB. Following a period of convalescence, the claimant participated in a graduated return to work program effective November 2, 1998 and on November 30, 1998, she resumed full time regular duties.

On November 20, 1998, the employer submitted an application to appeal to the Appeal Commission requesting that an oral hearing be convened to determine whether the claim for compensation is acceptable. An oral hearing was scheduled for February 15, 1999.

Reasons

The issue in this appeal is whether the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are subsections 1(1) and 4(1). Subsection 1(1) defines accident and 4(1) 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. In accordance with subsection 1(1) the panel must initially be satisfied that there has been an accident within the meaning of the Act.

Subsection 1(1) states:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(b) any

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured;

Subsection 4(1) states:

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.

We reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant sustained a personal injury due to an accident arising out of and in the course of her employment. In arriving at this conclusion we noted the following evidence:

in the Workers Report of Injury dated March 20, 1997 the claimant indicates that she first noted pain in her right arm on March 10, 1997 at work. She indicates that as the days went on it got worse so that she could no longer pin or staple clothes and she attended her physician on March 18, 1997 who sent her for therapy of her arm and shoulder;
in a report dated March 18, 1997 the claimant's attending physician indicates that he first saw the claimant on March 18, 1997 when the claimant complained of a slow onset of right arm pain which was associated with stapling at work. He further notes pain in the right shoulder, right forearm and with extension of the wrist. The attending physician diagnoses myofascial pain of the right forearm with supraspinatus tendonitis;
these symptoms with respect to the right arm and shoulder are confirmed in further medical reports of the attending physician dated March 27, 1997 and April 9, 1997;
on April 22, 1997 a WCB medical advisor indicates that in his opinion there was no cause and effect relationship between the mechanics of the claimant's injury and the right forearm and shoulder condition as there had been no specific injury and he believed the claimant's work to be neither strenuous or repetitive and that there had been no increase in the claimant's work load; On October 22, 1997 the WCB medical advisor indicated that his opinion remained unchanged as the claimant's job did not seem to involve a great deal of overhead activities;
the claimant was seen on August 27, 1997 by an orthopeadic specialist who indicated that the claimant believed that she injured her shoulder in March at work and concludes that, in his opinion, the claimant had a degree of rotator cuff tendonitis, recently inflamed at work again;
in a sworn statement dated September 30, 1997 the claimant indicated that she began to notice pain along the top of her arm in the region of her elbow in March 1997 and that the pain began to radiate up the back of her elbow/arm to her shoulder. By the end of the week the problem was radiating up into her shoulder and she could hardly lift her arm; on November 27, 1997 a WCB medical advisor indicated that, in his opinion, the claimant may have rotator cuff tendonitis or subacromial bursitis of the shoulder, that these conditions can occur spontaneously and may be painful at work but the work is not necessarily causal;

We find that the weight of the evidence, on a balance of probabilities, supports a conclusion that the claim is acceptable. We concur with Review Office that it is not necessary for a claimant to have a specific accident or incident to qualify as having an "accident" under the Act. The evidence supports a finding that the claimant sustained a non-specific accident in keeping with subsection 1(1)(b)(ii) of the Act. We are satisfied that there is a cause and effect relationship between the claimant's daily activities at her place of employment as detailed on her file and both demonstrated and described for the panel at the hearing and a tendonitis condition in her arm and shoulder. We accept the evidence of the claimant that she works primarily alone in a busy location and find that the evidence of the claimant and the medical evidence of the treating practitioners is consistent in suggesting that the employment activities played a role in the development of the claimant's arm and shoulder symptoms. Therefore the employer's appeal is denied.

Panel Members

D. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of March, 1999

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