Public Decisions | The Appeal Commission

Decision #61/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on February 5, 1999, at the request of an advocate, acting on behalf of the employer. The Panel discussed this appeal on February 5, 1999, and April 9, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

The claimant filed an application for compensation benefits in relation to neck, both arms and right shoulder difficulties which she related to her work activities as a cleaner. The accident date was reported as April 18, 1997, and the claimant reported her difficulties to her employer in December 1996.

On June 20, 1997, primary adjudication obtained a sworn statement from the claimant and the following information was ascertained:

the claimant stated she was responsible for cleaning 80 rooms which included vacuuming, dusting, cleaning washrooms and emptying recycle bins.
in October 1990, the claimant started working for the accident employer and worked 5 hours per day, 5 days per week. The statement and file information also showed the claimant worked full time concurrently for another employer in November and December 1996 and some shifts in January 1997.
over the past three years the claimant began to experience problems with her right arm when vacuuming. The pain was in the upper arm and would feel better over the weekends but when back at work the pain would progressively become worse as the week progressed. She stated her left arm started to hurt as she used it instead of her right arm. The more she worked the more the pain moved from her right arm into her shoulder and neck.
medical attention was sought in February 1997. The claimant indicated she was referred from her family physician to an orthopedic specialist and received an injection into her finger and one into her shoulder.
the claimant advised she stopped working on April 30, 1997 and had not collected any monies from unemployment insurance. When she left work on April 30, 1997, the claimant said she advised her employer that she couldn't work due to pain and that she would return to work once the pain was gone. She also stated that she told her supervisor at one point that she was having problems.
the claimant felt that vacuuming and emptying recycling bins had caused her injury.

On June 26, 1997, a statement was obtained from the claimant's supervisor. The supervisor advised that the claimant had been off work due to thumb surgery in December 1996, and that when she returned to work from the surgery the claimant worked four days between December 1996 to March 13, 1997. The supervisor indicated that one week prior to April 30, 1997, the claimant spoke with her evening supervisor and told him that her last day would be April 30, 1997. The claimant told the evening supervisor that she was no longer working her day job and wanted to work with her daughter for the summer. At this point, the claimant made no mention that she was having problems with her arms, shoulder or neck. The supervisor concluded that the claimant had not missed a significant amount of time over the last three years due to illness or medical problems and that she was a good worker.

Initial medical information consisted of a report from the attending orthopaedic specialist dated April 18, 1997. The specialist diagnosed the claimant's condition as bursitis of the right shoulder. On April 30, 1997, the attending physician reported the "Worker's History of Injury" as right shoulder pain from lifting a box of recycled paper. On July 5, 1997, the physician reported that he saw the claimant in January 1997, for right shoulder difficulties and that the diagnosis was bursitis of the right shoulder which may have been caused by physical labour.

On July 14, 1997, primary adjudication determined there was insufficient evidence to establish a relationship between the worker's right shoulder, neck and bilateral arm difficulties and an accident arising out of and in the course of the employment. It was the opinion of primary adjudication that the claimant had been experiencing right arm difficulties for about three years, however, she had never made any report to her employer and did not attend for medical treatment until January 1997.

On November 18, 1997, legal counsel for the claimant appealed primary adjudication's decision that the claim was not acceptable. Legal counsel later provided additional medical reports from the family physician dated November 19, 1997, and a report from the orthopaedic specialist dated November 25, 1997. Prior to considering the appeal, primary adjudication obtained statements from the claimant's co-workers in December 1997 and January 1998.

Primary adjudication, in a letter dated January 6, 1998, determined that no change would be made to its earlier decision of July 14, 1997. The case was referred to the Review Office for further consideration.

In a letter dated January 19, 1998, Review Office noted the family physician reported that he knew of the claimant's shoulder symptoms since January 1997, however the claimant never mentioned a work related cause until June 1997, which cast some doubt on her claim. The Review Office noted that both the family physician and orthopaedic specialist had indicated that the claimant suffered from bursitis and believed that the physically demanding work played a major role in the development of her shoulder condition. The Review Office concluded that on a balance of probabilities, the claimant's shoulder condition was related to her work as a cleaner and that she had sustained personal injury by accident arising out of and in the course of her employment. The claim for compensation was therefore considered acceptable by Review Office.

On December 7, 1998, an advocate for the employer appealed the Review Office's decision of January 19, 1998. The advocate was of the view that the claimant had problems for 3 years without reporting them to her physician or employer. The claimant was employed elsewhere doing the same type of work. In the opinion of the advocate, these factors were not taken into account by Review Office.

On February 5, 1999, an Appeal Panel non-oral file review was held to consider the employer's appeal. Following discussion, the Appeal Panel requested additional information from the accident employer and from the other employer noted on the claimant's file. On March 18, 1999, all parties were provided with the additional information received by the Panel and were asked to provide comment. Responses were received by both the employer's advocate and legal counsel for the claimant. On April 9, 1999, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are 1(1) which defines accident and 4(1) which 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:

(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 find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant's employment activities were responsible for the development of the claimant's right shoulder condition and see no reason to disturb the Review Office decision as we are satisfied that the requirements of the legislation have been met and the claim should be accepted. In reaching this conclusion we placed weight on the following evidence:

in a sworn statement dated June 20, 1997 the claimant reports right upper arm pain associated with vacuuming at work with the accident employer which started about three years before. The claimant reports a worsening of symptoms and related her symptoms to the nature of her work as an office cleaner in particular vacuuming and the additional duty of having to unload heavy recycling bins;
in a Workers Report of Injury dated May 23, 1997 the claimant indicates that she informed her employer starting in December, 1996 she could not vacuum because her arm hurt;
the file reveals that the claimant speaks Ukrainian and Polish but has a lack of language skills in English;
sworn statements from two co-workers given respectively on December 23, 1997 and January 2, 1998 confirm that the claimant had complained to them of upper arm and shoulder pain at work with the accident employer;
in a report dated April 30, 1997 the attending physician indicates that the claimant was complaining of right shoulder pain which she attributed in her history to lifting a box of recycled paper;
in a report dated July 5, 1997 the attending physician indicates that he first saw the claimant for problems with her right shoulder in January 1997 and that he had diagnosed bursitis of the right shoulder which he indicated may have been caused by her physical labour;
in a further report dated November 19, 1997 the attending physician further states:
"Having given the kinds of work Ms. [the claimant] had to do and the (sic) stated in your letter, extent of it, it is very likely that it was her physically demanding, hard work which led her to develop the problem with her shoulder."
in a narrative report dated November 25, 1997 an attending orthopaedic specialist records the claimant's history of experiencing right shoulder and arm pain at work with the accident employer which the claimant related to gathering and lifting bags weighing approximately 30 to 40 lbs. from a recycling bin. The specialist states:
" in my opinion, the nature of her work involved in cleaning and lifting heavy bags from the recycle bin has played a major part in the symptomatology of her right shoulder and caused her inability to work with the right upper extremity."
the file reveals that there was an increased workload with the accident employer when the recycling bins were added to the claimant's job duties;

We find that the evidence supports a finding, on a balance of probabilities, that the claimant's right upper arm and shoulder difficulties, notably bursitis of the right shoulder were consistent with and as a result of the nature of her work activities. We note the lack of English language skills of the claimant and the undoubted confusion that this created on this file with respect to documentation and reporting.

We note that the claimant's problems became significant and disabling following a documented increase in workload with the accident employer.

The accident employer raised the argument that the exacerbation of the claimant's symptoms were the result of her concurrent duties with a second employer. Although we recognize that the claimant had an overall increase in hours at work due to the concurrent employment in November and December 1996, we note this is the only information on file relative to the concurrent employment. Further, we cannot address this argument as the concurrent employer is not a party to these proceedings and, in any event, the employer's argument does not affect the basic issue of claim acceptance with the employer of record based on the reasons which have been outlined. Therefore we find that the claim is acceptable and the employer's appeal is denied.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of April, 1999

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