Decision #34/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for an injury to her back and right elbow which she related to an accident at work on September 19, 2007. The claim for compensation was denied by primary adjudication and Review Office as both were unable to find that the worker’s ongoing difficulties were directly related to an incident occurring on September 19, 2007. The worker disagreed with the decision and an application to appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on January 8, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 20, 2008, the worker filed a claim with the WCB for an injury that occurred in the workplace on September 19, 2007. The worker indicated that she hurt her back and right elbow when she lost her balance while picking up a bundle of clothes and struck her elbow against a table. The worker indicated that she reported the injury to her supervisor on September 29, 2007. On January 29, 2008, the employer advised the WCB that they were not aware that the worker was injured on September 19, 2007 as no injury had been reported.

A Doctor’s First Report showed that the worker sought medical treatment on September 28, 2007. The description of injury was “Lost balance, fell, twisted back and hit rt [right] elbow against a table.” The diagnosis was a lumbar back strain and a right elbow injury. The physician also indicated that the worker had a previous EMG due to left median nerve neuropathy and that a right side study done in 2005 was inconclusive.

On January 29, 2008 an accident employer representative advised a WCB adjudicator that the worker requested an ROE [Record of Employment] and the reason given was illness/injury. The worker’s last day of work was September 28, 2007.

The WCB adjudicator spoke directly with the worker’s supervisor on January 29, 2008. The supervisor indicated that the worker never said anything to her about an injury occurring on September 19 to her elbow or back. The worker always complained about her back being sore (as far back as July, 2008) but these complaints were general in nature. On September 28 or September 29, the worker went to see her doctor which the supervisor thought was related to the worker’s fingers going numb. After the doctor’s appointment, the worker said she was told to go home and not work because it was dangerous. The worker complained about her finger going numb at the beginning of September but did not relate it to her work duties. The supervisor confirmed that the worker never reported an injury and never once mentioned that her back or finger difficulties were specifically related to a work related injury. There was also no mention that the worker injured her elbow.

The WCB adjudicator spoke with the worker’s son on February 4, 2008. He confirmed that his mom was picking up a bundle of clothes that were in a box on the floor on September 19 when she lost her balance and struck her right elbow against a table. He was not sure if there were any witnesses to the accident. He was sure that his mom reported the accident to her supervisor. His mom continued to work her regular work duties until she went off work on September 29. She was now scheduled for right elbow surgery in March 2008. He said his mom filed an EI claim for sick benefits in October and that she told EI that she was injured at work and was awaiting surgery. Her claim for EI was approved and she received 15 weeks of benefits. EI benefits ended on January 19, 2007. The worker’s son commented that his mom had a part time job cleaning office buildings and that she quit this job in September which was the same time she went off work with the accident employer. He said his mom did not injure herself while working with this employer.

In an e-mail dated February 6, 2008, the worker’s son answered questions that were posed to him by the WCB adjudicator. He said his mom felt numbness in her right hand (middle, ring and pinky finger) and numbness from her finger tips (middle, ring & pinky) to the wrist when she banged her elbow on September 19. Prior to September 19, his mom never had problems with her right hand. Her back pain was already an issue for at least 4 to 5 years but she always kept on working and dealt with the pain. She never filed other EI or WCB claims with regard to her back condition.

By letter to the WCB dated March 4, 2008, the worker’s general practitioner reported an injury and advised as follows:

“[The worker] lost her balance while and (sic) work, fell and hit her right elbow against a table. In the process she twisted her back, sustaining a strain to her lumbar back segment. She also hurt her right elbow as mentioned, becoming aware of a feeling of numbness and pain along the ulnar side of the forearm and 4th and 5th fingers of the right hand.”

The general practitioner advised that an EMG done October 9, 2007 confirmed the diagnosis of right ulnar neuropathy and that the prognosis for full recovery after surgery was excellent. He also stated that there were no pre-injury medical/surgical conditions that might exacerbate or complicate the situation resulting from the accident.

On March 5, 2008, the worker was advised of the WCB’s position that there was not enough evidence to conclude that the onset of her back and right elbow difficulties were related to an incident occurring at work on September 19, 2007. In reaching this decision, the adjudicator indicated that the worker delayed in seeking medical attention and delayed in reporting an injury to her employer. There was also no one to confirm that she sustained a work related injury on September 19, 2007.

In a submission to primary adjudication dated May 6, 2008, a worker advisor outlined the position that there was sufficient evidence to relate the onset of the worker’s low back and right elbow difficulties to an incident occurring on September 19, 2007. In support of this finding, the worker advisor provided the WCB with a letter dated May 5, 2008 by the worker which identified several co-workers who were aware of the incident of her falling and hitting her elbow. She stated that the evidence supported that the worker’s right elbow neuropathy arose out of and in the course of her employment.

On May 14, 2008, primary adjudication decided that no change would be made to the decision of March 5, 2008. The adjudicator indicated that she contacted the witnesses identified by the worker and they were unable to confirm that the worker had a specific injury on September 19, 2007. They confirmed that the worker had been complaining of low back, finger and hand difficulties prior to September 19, 2007. Based on this evidence and the fact that the worker delayed in both seeking medical attention and reporting the accident to her employer, there was no evidence to suggest that the worker’s ongoing difficulties were directly related to a specific incident occurring on September 19, 2007. On May 30, 2008, the worker advisor appealed this decision to Review Office.

In a July 7, 2008 decision, Review Office determined that the worker’s claim was not acceptable as it could not find sufficient evidence to support that an accident occurred in September 2007. In arriving at its decision, Review Office placed weight on the following:

  • the worker’s union representative, co-workers and employer all denied any knowledge of a specific accident occurring in September 2007
  • EMG/NCS noted evidence of chronic denervation, a finding that would not occur only three weeks after an injury
  • a witness interviewed by Review Office indicated that the worker complained of hand problems and difficulties holding scissors. She thought that using scissors may have been part of the worker’s problem and that the worker may have bumped her elbow on the table on several occasions. She could not recall the worker complaining of right elbow problems prior to September 2007 but did recall her back complaints.
  • the medical note submitted in connection with the worker’s application for Employment Insurance benefits listed: “degenerative joint disease of the spine, cervical disc degenerative disease, fibromyalgia…”
  • information provided by the employer regarding the worker’s typical work/absence patterns for the weeks leading up to September 19, 2007 and beyond, up to September 27, 2007.

On September 18, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested and received clinical chart notes from the worker’s treating physician. This information was forwarded to the interested parties for comment. On February 10, 2009, the panel met to discuss the case and render its final decision.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s right ulnar nerve condition arose out of and in the course of her employment on September 19, 2007.

The worker’s position:

The worker was represented by a worker advisor at the hearing. The services of an interpreter were provided and the entire hearing was translated for the worker. The position advanced on behalf of the worker was that there is sufficient evidence for acceptance of this claim which, based on the balance of probabilities, supports that the worker did suffer a right elbow ulnar neuropathy arising out of and in the course of her employment. The worker reported her accident occurred on September 19, 2007 when she picked up a bundle of clothes, lost her balance and hit her elbow against the table. The worker had no problems with the last two fingers of her right hand prior to the workplace accident. Any previous symptoms were to the medial side of the hand and not the ulnar. Based on the worker’s explanation and a confirmation of the diagnosis being right ulnar neuropathy, the mechanism of injury falls in place with the diagnosis.

The employer’s position:

A representative from the employer was present at the hearing. The employer agreed with the WCB’s decision that an accident did not take place at work. It was submitted that there were no witnesses and the accident was not reported. The representative herself spoke with the worker on September 28, 2007 when the worker first brought in the doctor’s note. When the representative asked the worker what she did, the worker’s response was: “I don’t know, but my fingers are numb.” The employer’s representative questioned why the worker’s doctor did not provide a report to the WCB and why the worker first made a claim under her own insurance before making a workers compensation claim four months later. It was submitted that if it was truly a work-related claim, one would have expected the worker to have gone to the WCB first.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s right ulnar nerve condition arose out of and in the course of her employment on September 19, 2007. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by an accident that arose out of and in the course of her employment. On a balance of probabilities, we are able to make that finding.

At the hearing, the worker described an incident on September 19, 2007 where she was lifting a bundle of clothes, and as she was doing so, her foot slipped. She lost her balance and that was when her elbow hit the edge of the table. This was not an uncommon occurrence and she often hit her elbow on the table. After she hit her elbow, her arm went numb with a tingling feeling. She continued to work for another two weeks, but then started to have problems with her hands. She had numbness in the last two fingers of her right hand, namely her ring and little fingers.

The WCB file material indicates that the worker went to her general practitioner on September 28, 2007 to obtain treatment for her ulnar condition. The general practitioner is able to speak to the worker in her native language. On that date, he provided her with a doctor’s note which recommended she stay off work for treatment until further notice.

A “Doctor First Report” form relating to the September 28, 2007 examination was not provided to the WCB until February 1, 2008. When asked by the Review Officer why he delayed in sending a report, the general practitioner indicated he did not file a report with the WCB because the worker thought she could go on her own insurance. When it started to look like a long-term situation, the general practitioner encouraged the worker to report to the WCB, especially when there was evidence of a neuropathy that was not going away.

After the oral hearing, the panel requested a copy of the general practitioner’s chart notes. The entry for September 28, 2007 read as follows:

Sep. 28 2007 Now sleeping better with medication. Accident at work Sept.19 Hit elbow and back against a table. Right ulnar neuropathy, numbness of 4th and 5th fingers. Lumbar back pain, dorsal back also painful, but has no projection of pain. SLR 45* bilaterally. Loss September 29. WCB. To have EMG.

Based on the evidence as a whole, the panel finds, on a balance of probabilities, that the worker did suffer an injury to her elbow at work which caused her right ulnar nerve condition. A sharp blow to the elbow as described by the worker is consistent with the development of ulnar neuropathy. The general practitioner’s chart notes confirm that nine days after it happened, the worker told him that she suffered the work related accident on September 19, 2007. Although it is somewhat unusual that the worker and her physician would refrain from reporting the incident to WCB or the worker’s supervisor until over three months later, the panel accepts that there may have been some communication difficulties inherent in this claim. This delay in coming forward with the report of injury understandably created some uncertainty as to the cause of the worker’s symptoms, but based on the general practitioner’s chart notes, the panel is satisfied that the right ulnar symptoms did in fact start after the worker hit her elbow at work on September 19.

We therefore find that the worker’s claim is acceptable. The appeal is allowed.

Panel Members

L. Choy, Presiding Officer
J. Gervino, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of March, 2009

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