Decision #37/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s claim for injury to his shoulder is acceptable.
The worker filed a claim for an injury to his shoulder which he claimed occurred when he was loading a trailer. The Workers Compensation Board (WCB) found that the worker delayed in reporting the accident and in seeking medical attention. The WCB and its Review Office denied acceptance of the claim. The worker appealed to the Appeal Commission.
A hearing was held on January 24, 2007, at the worker’s request. The panel discussed this appeal following the hearing.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On September 13, 2006, the worker claimed that he was loading a trailer and strained his left shoulder at work. He thought this was a normal ache and pain and that it would get better. When it did not, he reported it to his employer on September 20, 2006 and sought medical attention. He had an appointment with his doctor for September 26 and his doctor’s office was going to try to see him on September 21 or 22, 2006.
The employer’s accident report indicated that the worker was unsure what caused the injury but his shoulder felt sore at the end of the work day on September 13. The worker reported the injury on September 20, 2006 and was seeing a doctor on September 26, 2006.
On September 22, 2006, the worker advised his adjudicator that he continued working following the September 13, 2006 injury. He said his workplace duties gave him aches and pains and he thought by going back to work his shoulder would get better. There were no witnesses to the accident as he was working alone. He had no prior shoulder problems. His girlfriend was aware of his problems as it was affecting his sleep. The worker noted that he had been on light duties since September 20, 2006 and he noticed an increase in pain while performing these duties. He heard popping and grinding in his shoulder.
On September 25, 2006, the worker’s claim for compensation was denied by the adjudicator on the grounds that:
- the worker delayed reporting the incident to his employer until September 20;
- the worker was not obtaining medical attention until September 26, 2006; and
- the worker was not in the course of his employment on September 19, 2006 and therefore the WCB had no information about his activities on this date.
A physiotherapist’s report was then received dated September 27, 2006. The diagnosis rendered was a left rotator cuff strain. It was anticipated that the worker would return to work by October 10, 2006 once he completed one to two weeks of physiotherapy treatment.
On October 3, 2006, the worker appealed the adjudicator’s decision to Review Office. He submitted that he was loading mattresses into a trailer on September 13, 2006 when he felt pain in his left shoulder from lifting and stretching. He then worked on September 14, 15 and 18 with a sore shoulder. The work on September 18 was hard and heavy and his shoulder hurt even worse. He rested his shoulder on September 19, 2006 which was his day off. By September 20, his shoulder was hurting so much he called his physician and reported the injury to his employer.
In its decision dated October 13, 2006 Review Office stated there was insufficient evidence to conclude that the worker sustained injury to his left shoulder “by accident arising out of and in the course of” his work duties on September 13, 2006. Review Office noted that the worker’s description of what caused his left shoulder problems contained inconsistencies which made it difficult to conclude that there was a work related accident. Review Office also noted that the worker continued his regular duties after September 13, 2006 without mentioning any problems to his employer or co-workers and that he had several prior claims with the WCB where he reported an injury to his employer on the same day of injury. On November 20, 2006, the worker disagreed with Review Office’s decision and a hearing was arranged.
Reasons
Applicable Legislation
Subsection 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 keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes
(a) A wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
Worker’s Position
The worker described the accident which resulted in a left shoulder injury. He noted that he was loading mattresses on a trailer. He said there was a variety of different sized mattresses, from double to king size. He stated that “I was putting some on top of the eight that I lined across the floor and doing that I was stretching up pretty high and getting the second one on top is when I felt a something pop in my shoulder.”
He stated that the pain subsided and he continued working for the rest of the day. He worked for the balance of the week but his shoulder was getting worse. He finally reported to his employer when he could barely move his shoulder. In answer to a question he advised that he works by himself although there is other staff in the area.
Regarding the delay in reporting he explained that, at his age, he gets a lot of aches and pains and expected the shoulder pain would clear up. When it became clear that it was not getting better he reported the incident to his employer. This was on September 20, 2006. He then sought medical attention but could not get into see his physician until September 26, 2006. He was referred for physiotherapy treatment and received two treatments.
The worker advised that after September 20, 2006 he was assigned light duties for a short time and then stopped work, missing eight days. He returned to his regular duties and worked carefully, favouring his injured left shoulder. He has continued to work and states that his shoulder is now about 90 percent.
Employer’s Position
The employer was represented by staff from its human resources department. The representatives did not make a presentation but answered questions posed by the panel. The representatives advised that due to the delay in reporting, an investigation was not conducted but confirmed that the employer has mattresses on the premises on a regular basis. The representatives noted that the worker is aware of the need to report injuries immediately and had done so on a prior claim.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker suffered personal injury by accident arising out of and in the course of his employment. The panel was able to make this finding. The panel finds that the worker injured his left shoulder while loading mattresses in a trailer during the course of his employment on September 13, 2006.
The panel accepts the worker’s evidence describing the accident. The panel notes that the employer confirmed that loading mattresses into a trailer is not an unusual activity. The panel finds that the mechanism of injury is consistent with the worker’s job duties. Although there was a delay in reporting the panel finds that the time frame for reporting was reasonable in the circumstances of the case.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of March, 2007