Public Decisions | The Appeal Commission

Decision #64/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 12, 1998, at the request of the claimant. The Panel discussed this appeal on November 12, 1998, and March 15, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 3, 1996, the claimant submitted an application for compensation benefits with respect to a right shoulder injury which she sustained on June 18, 1990, while performing duties of a janitor. On her application for compensation, the claimant stated, in part, "In this job as a janitor we had to lift heavy objects like scrub pails with water, we worked alone, had no elevators, so we carried vacuums up and down stairs - was doing over 40,000 square feet by myself 5 nights a week". The claimant reported that she advised her employer of the injury on the same day of accident.

The employer's report of injury, dated May 8, 1996, indicated that it had no record of an accident. The employer stated that it had no knowledge of the claimant's missing time from work as a result of a shoulder injury.

Initial medical information consisted of the following documents:

a letter from the treating physician, dated October 31, 1991. The physician stated that the claimant developed considerable pain in her right shoulder due to tendonitis. He felt the claimant was unable to continue with her present job and should be retrained for a job where no lifting or heavy physical work was involved.
a medical certificate, dated August 27, 1991, stated that the claimant had arthritis and tendonitis of the right shoulder and that she was advised not to lift heavy objects at work.
a walk-in clinic report, dated November 19, 1991, indicated that the claimant was advised to stay off work from August 11, 1991 to September 7, 1991 for medical reasons.

On May 27, 1996, the claimant attended the WCB offices and spoke with an adjudicator. The claimant spoke about her right shoulder tendonitis which had been aggravated by 26 years of work as a janitor. The claimant advised that June 18, 1991, was her last day at work with the accident employer and that she had received UIC sick benefits for one year. She attended a doctor for cortisone shots but could not recall his name. The claimant felt that she was entitled to retroactive benefits together with interest.

On June 7, 1996, primary adjudication determined that there was insufficient evidence to conclude the claimant's right shoulder difficulties were the result of an accident arising out of and in the course of her employment. Sections 4(1) and 17(5) of the Workers Compensation Act (the Act) were referred to in the decision letter.

The claimant later submitted additional medical information which consisted of a July 4, 1996, report from her attending physician. The physician reported that the claimant had been receiving treatment off and on for right shoulder pain since August 1991, and that the pain was due to tendinitis. The doctor suggested that the claimant's right shoulder difficulties were the result of a chronic sprain from working as a janitor.

In a report, dated July 5, 1996, an orthopaedic surgeon recorded that the claimant described pain in the superior aspect of her shoulder resulting from lifting anything heavy or doing housework. He stated that the claimant's problems apparently started in April 1991 and that she was quite bitter about her working environment as a janitor. The surgeon noted x-rays of the shoulder showed osteoarthritic changes at the acromioclavicular (AC) joint. A steroid injection into the AC joint was suggested, however, the claimant was not keen on having this performed.

The claimant's sworn statement of August 22, 1996, indicated that she had been employed as a janitor for 26 years and that she had worked with the accident employer for the past 12 years. In April 1991, she began to experience discomfort in her right shoulder which first started like a grinding sensation. She had not sustained any specific injury to her right shoulder. She had been busy at work due to the fact that it was Spring and there was a lot of mud in the hallways, classrooms and gym to clean. The claimant contacted her supervisor and told him her right shoulder was sore. She asked for assistance, however, no assistance was provided. The claimant tried to continue with her regular duties but her shoulder was too sore so she called her supervisor to say she was leaving.

The claimant added that she voiced ongoing complaints to her supervisor but no light duties were offered. On June 18, 1991, the claimant stopped work completely and went on UIC sick benefits between October 1991 and May 1992. The claimant felt that her right shoulder difficulties were due to the increase of work in the Spring and to the fact her employer was short staffed.

On August 29, 1996, a statement was obtained from the employer's assistant supervisor of facilities and maintenance. He indicated that the position of a janitor was subject to a reduction in hours from 8 to 6 hours effective July 1, 1991. The claimant was offered reduced hours, to bump another employee in order to remain at the full time hours or to lay off. The claimant had signed an agreement on June 4, 1991, to accept the reduction in hours. The position was still considered to be "permanent part time" with a percentage decrease in benefits.

The assistant supervisor further stated that he had met with the claimant on August 27, 1991, and that she asked to be laid off because she was in pain. The supervisor did not recall the reason for her pain and at no time did the claimant mention any injury due to work.

A statement was also obtained from the claimant's immediate supervisor on August 29, 1996. He provided a list of job functions performed by the claimant. He advised that the claimant had made several ongoing complaints over the years but not regarding one specific body part. The complaints were general in nature like every day aches and pains.

On September 12, 1996, primary adjudication confirmed its earlier decision that the claim was not acceptable. "After considering all information provided, in the opinion of Claims Services, a relationship between the worker's right shoulder difficulties and an accident arising out of and in the course of her employment cannot be established." This decision was appealed by the claimant on September 16, 1996.

The case was considered by the Review Office on October 4, 1996. It concluded that the claim for compensation was not acceptable based on the following points:

on her initial claim form, the claimant stated her difficulties occurred in June 1990 however Review Office noted in her later statement that the discomfort in her shoulder started some time in the spring of 1991.
neither the employer nor the claimant's immediate supervisor were aware that the worker had sustained an accident or injury on the job to account for her right shoulder problems.
the orthopaedic specialist who examined the claimant had attributed her shoulder complaints to the osteoarthritic changes in the acromioclavicular joint.

In summary, Review Office was of the view the evidence did not support the worker's claim that her shoulder difficulties were due to her employment duties as a janitor. The claimant eventually appealed the Review Office decision and an oral hearing took place on November 12, 1998.

On November 12, 1998, the Appeal Panel heard the case but decided to obtain additional medical information before arriving at a decision. This information was requested from the treating physician who had seen the claimant in the Spring of 1991.

On January 13, 1999, the Panel met again to discuss the case following a telephone call that was received from the physician who had treated the claimant in the spring of 1991. The physician advised that he could not locate the claimant's medical chart but remembered seeing her sometime in 1991 regarding a shoulder injury. At the completion of the meeting, the Panel requested that the treating physician confirm in writing his recollection with respect to the treatment of the claimant. In addition, the Panel requested the Manitoba Health Services Commission to provide the Appeal Commission with a print-out of the names of physicians along with the examination dates of when the claimant had sought medical treatment during the spring of 1991.

Subsequent to this request, the claimant provided the Panel with copies of hand written progress notes from the physician who had treated the claimant in 1991. On February 25, 1999, all parties were provided with copies of the information obtained by the Panel and were asked to provide comment. The Panel received a submission from the employer's advocate, dated March 3, 1999, and on March 15, 1999, the Panel met to render its final decision.

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

(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."

The evidence on the file confirms that the claimant has a long-standing degenerative right shoulder condition. However, we do not find that these shoulder difficulties are, in any way, related to a workplace accident. It is extremely difficult, if sometimes not impossible, to be able to establish the occurrence of a compensable incident eight years after the fact. We are, on a balance of probabilities, satisfied that there has been no work related injury in this case. Accordingly, the claim is not acceptable and the claimant'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 28th day of April, 1999

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