Decision #10/07 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on November 23, 2006, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal following the hearing.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Decision: Unanimous
Background
On May 27, 2003, the worker reported to the Manitoba Workers Compensation Board (WCB) that she sustained an injury on May 19, 2003 to her neck and left arm. The worker indicated that she and another healthcare aide were assisting a resident from a toilet into a chair when she felt pain on her left side in her shoulder and neck. The worker stated that she advised her co-worker that her neck hurt, and also informed a supervisor of the injury about five minutes later.
On May 20, 2003, the worker did not report to work. She attended a hospital emergency facility with entrance complaints of sore muscles. The report stated, in part, “Works as healthcare aide – came home from work @ MN and had neck pain – Woke up during night very stiff left arm hand – no true weakness – no history injury or other over use…”. The diagnosis rendered was myofascial pain and tendonitis.
On May 27, 2003, the employer’s occupational health nurse reported to the WCB that the worker was off work. She had contacted the worker on May 23 and she reported a vague history of having felt tired on May 20 and having taken an Advil for her neck pain. She also reported that her left hand “felt tired”. When asked whether this was a work related injury the worker replied that she was “not sure”. The worker was instructed to complete an incident report if she intended to claim compensation. The worker completed an incident report on May 23, 2003 and a Worker’s Accident Report on May 27, 2003.
On June 4, 2003 the employer contacted the worker’s co-worker and her supervisor who had reportedly been advised of the incident. Neither had any recollection of the worker reporting an injury to them on May 19, 2003.
The worker informed the WCB on June 9, 2003 that she had mentioned to her co-worker on May 19, 2003 that her neck was sore, and that she had informed her supervisor that there was something wrong with her neck. She did not advise either of them that she had injured her neck while transferring a patient, however she stated that she had reported to the attending physician in emergency that she had hurt her neck at work.
The WCB contacted the co-worker who remembered transferring a patient with the worker and that the worker had commented that the patient was very heavy. She could not recall the worker saying that she had hurt herself but noted that she did not always pay attention. Similarly the worker’s supervisor advised the WCB that she was not aware of any accident or injury to the worker.
On July 18, 2003 the worker was formally advised that her claim for compensation had been denied. The rationale for the decision was that it could not be established that the worker’s injury resulted from a workplace accident. None of the co-workers were able to confirm that the worker reported an injury on May 19, 2003, the worker did not relate her injury to an accident at work when seen at the hospital emergency facility and the worker had not reported an accident to the employer’s occupational health nurse when speaking with her on May 23, 2003.
On August 5, 2003, the worker appealed the denial of her claim. In a letter dated September 8, 2003 she asserted that:
- due to language differences the employer’s representative had misunderstood her to say on May 23, 2003 that she was unsure whether the injury was work related. In fact, what she said was that she had never been involved in an accident at this workplace before, and that she asked how to go about dealing with the reports and paperwork.
- after she strapped the patient into his chair and straightened her back she felt “a sharp, incredible pain in the back of my neck. It felt as though I was being stabbed in the neck area, first on the right side, immediately followed by the identical pain on the left side of my neck. I immediately knew that something was terribly wrong and that I felt I had hurt myself. I knew at that point that I had somehow hurt myself, but I didn’t know to what extent. I verbally complained to my co-workers ‘something’s wrong with my neck.’. They did not respond or acknowledge my complaint and I continued on working even though I was in excruciating pain.”
In response the employer noted that she had no difficulty communicating with the worker in English and that the worker had used English, both written and verbally, in the course of her employment.
On October 9, 2003, Review Office concluded that the weight of evidence did not support the occurrence of a compensable accident resulting in injury. Review Office based its decision on inconsistencies in information provided by the worker, and the information provided by the employer, the worker’s supervisor and co-worker and the health centre where the worker was initially treated.
On May 11, 2006, a worker advisor requested that Review Office reconsider its previous decision based on new medical evidence which allegedly supported that the worker sustained an accident within the meaning provided under subsection 1(1) of The Workers Compensation Act (the Act).
On July 7, 2006, Review Office concluded that the new medical information did not alter its previous decision and confirmed that the claim was not acceptable. Review Office again relied upon the inconsistencies between the worker’s information and that of the employer and the initial attending physician. Furthermore Review Office found there to be no evidence of any communication problems with the worker.
On August 30, 2006, the worker completed an Application to Appeal the decision of Review Office. On November 23, 2006 a hearing was convened to consider the appeal.
Reasons
The worker was represented by an advocate who made a presentation on her behalf. The worker answered questions posed by her representative and by the panel. A translator was present throughout the hearing at the request of the worker and her advocate. A representative of the employer attended together with an advocate who made a submission to the panel on behalf of the employer.
The panel was asked to determine whether the worker's claim is acceptable. For the worker to be successful the panel must find in accordance with section 4(1) of the Act that the worker suffered an injury by accident which arose out of and in the course of her employment. In other words, the panel must find that the worker's condition is causally related to her workplace duties. The panel was not able to reach this conclusion.
The worker attributed her condition to her work duties, specifically an incident which she alleged occurred on May 19, 2003 when assisting a resident from a toilet to a chair. The worker's advocate submitted that the worker had reported her injuries to her coworkers, but that it was not until one week later when she attended upon her family physician that she appreciated the need to file a claim with the WCB. For that reason she says there was no delay in reporting. The advocate also noted that the worker’s discussions with the employer concerning her accident were “beyond her regular workplace communications” and that this had resulted in miscommunication about the mechanism of injury.
The employer’s representative submitted that there were a number of inconsistencies in the information provided by the worker with respect to the cause of her injury. Further it was submitted that the worker’s communication skills were good and that there had been no miscommunication with the employer considering her accident.
The panel has carefully considered all of the evidence presented at the hearing. We find on a balance of probabilities, that the worker's injury is not related to her workplace duties, and that her claim for compensation is therefore not acceptable. A significant factor in our decision is the lack of contemporaneous reporting of an injury of the nature that the worker now describes. While in her letter of September 8, 2003 the worker provides a vivid description of “incredible pain” in her neck “as though I was being stabbed” she did not make those same complaints to her co-worker or her supervisor on the date of the alleged injury, to the attending physician who treated her the day following, nor to the employer’s occupational health nurse several days later. While the worker’s command of the English language may not be particularly strong, we are satisfied that she was capable of communicating with her employer in respect of the alleged incident, and that there was no misunderstanding attributable to any linguistic differences. The worker was most certainly capable of communicating the existence of symptoms such as those described in her letter of September 8, 2003, and it would be reasonable to expect her to have done so had she in fact experienced such significant trauma.
We also find that the relatively benign nature of the alleged incident on May 19, 2003 is simply not consistent with the severity or longevity of the symptoms from which the worker continues to suffer. In all of the circumstances we are unable to conclude that a workplace accident caused her injury, as required under the Act.
The worker's appeal is denied.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 11th day of January, 2007