Public Decisions | The Appeal Commission

Decision #76/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 27, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 27, 1999, and May 19, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On April 29, 1995, the claimant filed an application for compensation benefits indicating that he twisted his left arm while lifting a tractor tire on October 10, 1994. The injury was reported on the same day to the employer and the claimant's last day of work was November 25, 1994.

On July 20, 1995, primary adjudication obtained a sworn statement from the claimant and the following information was ascertained:

on October 10, 1994, the claimant indicated he was changing a tire on a four wheel drive tractor and while lifting it into position he felt a sharp pain up his left arm. He put the tire back down and his employer, who was near by, asked him what was wrong and he told him about the pain in his arm. The claimant stated the employer then helped him put the tire on the tractor.
the claimant said he thought he pulled a muscle in his arm but kept on working. He said his arm seemed okay and that is why he did not see a doctor because he did not think his injury was serious.
on November 25, 1994, the claimant stated he was laid off and was supposed to go back to work in early April. In the interim he would help his employer whenever he phoned for help.
in December 1994 the claimant started to notice more problems with his arm, i.e. difficulty grasping, no strength, numbness and stiffness. By January, 1995 it got so bad that he decided to see a doctor and he was referred for physiotherapy treatments once a week and then to a specialist.
the claimant stated he was paid UIC benefits between November 1994 to April 1995 and later UIC sick benefits. The claimant stated he was claiming WCB benefits commencing April 12, 1995.
the claimant indicated that his employer knew about the accident the day it happened. He said he did not mention his arm again to his employer until January 1995 because his arm did not bother him until then.

On July 20, 1995, the employer provided a sworn statement to the WCB indicating the following:

he found out about the claimant's injury in January 1995.
the claimant was laid off in November 1994 but continued to work on odd days when he was called to work.
the employer had no recollection of an injury occurring at work in October 1994. He stated that the claimant told him that the injury happened when he was lifting a tractor tire but the employer could not remember anything like that. The employer was not aware of the claimant having problems like this before.

Initial medical information from the attending physician indicated that he first treated the claimant on January 25, 1995. The worker's history of injury was an injury to the left forearm while changing tractor tires. The claimant was referred to a neurologist and for physiotherapy treatments.

On January 26, 1995, the neurologist reported that the claimant's main problem was sharp pain from the left wrist all the way to the left shoulder which came about from any heavy lifting. The neurologist was of the opinion that the claimant's symptoms were more suggestive of a musculo-skeletal origin than neurological. The neurologist also felt the claimant may have a mild form of carpal tunnel syndrome.

Primary adjudication denied the claim on August 2, 1995, based on Sections 4(1) and 17(5) of the Workers Compensation Act (the Act). Primary adjudication relied on the evidence provided by the employer that they were not aware of an accident occurring until January 1995; that the claimant was capable of working on and off until November when he was laid off due to a lack of work; and the employer was not aware of any of the claimant's ongoing difficulties during that time.

By letter dated August 14, 1995, the claimant appealed primary adjudication's decision to the Review Office. The claimant argued that his employer knew about the injury to his arm which occurred on October 10, 1994 but possibly blanked it out from his memory as they were very busy that day. The claimant also commented that he was told by his doctor that pressure built up in his arm and that it took from October 10, 1994, to January 25, 1995 to become noticeable.

On September 1, 1995, Review Office confirmed that the claim was not acceptable based on Section 4(1) of the Act. Review Office was of the opinion that the information did not substantiate that the worker suffered a personal injury due to an accident arising out of and in the course of his employment. The claimant and his legal counsel appealed this decision and a hearing was held on April 27, 1999. Legal counsel later faxed a report from a plastic surgeon dated March 21, 1997, which the Panel took into consideration when discussing the issue under appeal.

Reasons

The issue in this appeal is whether or not the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are subsections 1(1) which defines accident; 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 and section 17 which sets out notice requirements.

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:

Definitions

1(1) In this Act,

"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:

4(1) "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."

Subsection 17(5) states:

17(5) "Failure to give the notice required by virtue of his section, unless excused by the board, on the ground

b) that the employer or his superintendent or agent in charge of the worker where the accident happened had knowledge of the injury; or

c) that the board is of opinion that the claim is a just one and ought to be allowed;

is a bar to any claim for compensation under this Part."

We find that the weight of the evidence, on a balance of probabilities, does not support a finding that the claimant sustained a personal injury due to an accident arising out of and in the course of employment and therefore we find that the claim is not acceptable. In arriving at this conclusion we placed weight on the following evidence.

the worker submitted a Workers Report of Injury dated April 29, 1995 indicating that he had injured his left arm at work on October 10, 1994 by twisting it while lifting a tractor tire;
the worker has indicated that he told his employer about the injury at the time it happened. However, the employer indicated in a sworn statement dated July 20, 1995 that he was not aware of any accident or problem with the claimant's arm until January, 1995, some three months after the alleged incident at work and after the claimant had been laid off on November 25, 1995, except for occasional shifts after that date when called in by the employer;
the file reveals that the claimant continued to work until he was laid off at the end of November and did not seek medical attention for this injury until January 25, 1995 as he did not think there was anything serious and it did not get bad until January 1995 approximately three and a half months following the alleged accident;
The claimant was assessed by an attending neurologist in January 1995 and apart from a mild carpal tunnel syndrome (CTS) the specialist was unable to identify a neurological cause for the claimant's left arm complaints.
In a report dated June 14, 1995 a second attending neurologist indicates that x-rays of the forearm were normal. Nerve conduction studies demonstrated mild carpal tunnel on the left but did not confirm the presence of anterior interosseous syndrome electrophysiologically.
In a report dated September 27, 1996 a plastic surgeon who examined the claimant on September 20, 1997 and who subsequently performed median nerve decompression in February 1998 indicates:
"The nature of the patient's initial injuries are difficult to ascertain at this time but may well have been an irritated muscle. At this point in time, the injuries and problems may be different than those of October of 1994."
"With respect to a causal link, this would be difficult to ascertain from a single injury as carpal tunnel is usually from repetitive contusion or compression of the median nerve in the carpal canal."

Based on a review of the file and the evidence provided at the hearing the claimant reported sustaining a twisting injury to his left arm which occurred on October 10, 1994 while lifting a tractor tire. The claimant was able to continue working at his regular duties until November 25, 1995. We note that the claimant did not seek medical treatment for his left arm complaints until January 25, 1995 when he was assessed by his family physician some three and a half months after the alleged incident. We further note that the claimant did not complete an application for WCB benefits until April 29, 1995. As well, information from the employer in the Report of Injury was not submitted to the WCB until early May, 1995. As noted in the evidence above, the employer has indicated no knowledge of any accident at work on October 10, 1996 or any knowledge of any problem with the claimant's arm until January, 1995 after the claimant had been seasonally laid off. We accept this evidence in light of the claimant's delay in seeking medical treatment and establishing a claim with the WCB.

We find from the weight of the evidence, in particular, the delay in seeking medical attention, the delay in reporting to both the employer and the WCB and the lack of a definitive diagnosis which correlates with the reported symptoms and the alleged mechanism of injury that an accident arising out of and in the course of the claimant's employment cannot be substantiated as occurring on October 10, 1994. We also find that the claimant's failure to notify his employer of an accident within a reasonable time frame contravenes the requirements of subsection 17(5) of the Act and that this lack of reporting supports a finding that an accident did not occur. Therefore the claimant'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 31st day of May, 1999

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