Decision #23/10 - Type: Workers Compensation

Preamble

The accident employer is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s left shoulder difficulties were related to her employment activities in February 2009, as a flight attendant. A hearing was held on February 18, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker has prior claims with the WCB for injuries related to her left shoulder, head and neck that occurred on June 24, 2007, and for left shoulder, neck and upper back injuries that occurred on October 29, 2008.

With respect to the October 2008 prior claim, the worker was diagnosed and treated for a cervical/thoracic sprain by her treating chiropractor. On January 15, 2009, the worker was assessed by a WCB chiropractic consultant who reported that his examination findings showed limited objective positive findings. Subjectively, the worker reported mild tenderness on palpation of the cervicothoracic musculature. In the consultant’s opinion, the worker was able to return to work and a requirement for restrictions was not indicated. File records indicate that the worker was paid wage loss benefits up to January 19, 2009. She returned to her pre-accident duties as a flight attendant on January 20, 2009, but continued to report ongoing difficulties.

On February 10, 2009, the worker filed a new claim with the WCB for soreness and then clicking in her left shoulder that started on February 3, 2009. She attributed her difficulties to the following work related activities:

“Opening and closing the door of the aircraft, depends on how frozen it is makes a difference on how much force I have to use. Carrying on passenger carry on bags and stow them in the tail of the aircraft and I have to lift them up and sometimes in overhead bins. I also push carts and lift trays of food and also bins of commissary (cases of can drinks, jugs of water, everything needed on the aircraft, bags of ice).”

A report from the treating chiropractor dated February 9, 2009 reported an accident history of “doing duties on aircraft (ice)”. Her diagnosis was an aggravation (repetitive) chronic cervicothoracic subluxation/associated muscle stress of the left shoulder.

The employer’s accident report dated February 19, 2009 reported that the worker “returned to work after being off for left shoulder injury and reaggravated left shoulder doing daily duties.” The report stated that the worker’s injury had been reported to the flight attendant manager.

On February 12, 2009, the worker spoke with a WCB adjudicator and stated that she worked on January 20, 23 and 30, 2009 and February 2, 3, 4 and 5, 2009. She stated that her current left shoulder difficulties were due to a reaggravation of her prior WCB injury and that working four days in a row from February 2 to 5, 2009 caused her to overdo it. The worker stated there was no change in her job duties when she returned to work, and that there wasn’t a specific incident that caused her difficulties.

On March 2, 2009, the employer’s human resources manager advised the WCB that they have never had a reported incident with a frozen door to date. She stated that all employees are aware that there is a form to fill out in the event of a frozen door. She stated that the worker had been stationed on an airplane that had the easiest door to open and close. She confirmed that there had been no increase in workload or change in job duties after the worker’s return to work in January 2009.

The worker believed that her problems on her return to work were a recurrence of her previous injury. On March 4, 2009, the WCB case manager confirmed to the worker that based on the weight of evidence, the worker no longer had a loss of earning capacity beyond January 19, 2009 in relation to her October 2008 claim and that her claim for a recurrence after January 19, 2009 was not accepted, as “there is no clinical objective medical evidence on file to substantiate your subjective complaints of pain. Whatever is causing your subjective presentation regarding your left shoulder/neck does not have a relationship to the October 29, 2008 workplace injury.”

In a decision dated March 4, 2009, the worker was advised that the WCB was unable to establish a relationship between the development of her left shoulder difficulties and an accident “arising out of and in the course” of her employment given that the worker was attributing her current left shoulder difficulties to a recurrence/aggravation to her previous WCB claims. As a basis for the decision, the WCB adjudicator stated:

· the worker’s job duties as a flight attendant were not out of the ordinary;

· the employer was unable to confirm a faulty/frozen airplane door nor an increase in her hours/workload;

· the treating chiropractor’s diagnosis outlined on February 9, 2009.

On March 6, 2009, the worker provided primary adjudication with additional information which suggested that there were two malfunctioning/frozen airplane doors to which she attributed her left shoulder difficulties. The worker also provided the names of three co-workers who knew of the malfunctions and her left shoulder difficulties. Primary adjudication contacted the three co-workers as to their knowledge of the frozen airplane doors and the worker’s shoulder complaints.

On March 20, 2009, the WCB adjudicator advised the worker that there would be no change to the decision of March 4, 2009. It was indicated that the 3 co-workers confirmed the two malfunctioning airplane doors (baggage and passenger) were likely due to cold weather at the beginning of February 2009. The co-workers were unable to confirm that the worker reported injury/difficulties with her left shoulder related to the frozen airplane doors or due to her job duties during that time. Based on these factors and the worker’s delay in reporting a new injury to the employer, the adjudicator did not find that the evidence established a personal injury accident arising “out of and in the course of” the worker’s employment.

A submission was received from a worker advisor dated April 30, 2009. It included medical information from the treating chiropractor to support his position that the worker suffered a recurrence or relapse of her compensable injury due to her employment duties. He also provided documentation between the worker and the employer describing her injury and e-mail correspondence to confirm that other workers had difficulties with the operation of aircraft doors.

On May 12, 2009, the worker’s claim for compensation was accepted as an aggravation of a pre-existing condition and wage loss benefits were issued commencing February 6, 2009. On May 25, 2009, the worker was advised “…the symptoms you were experiencing prior to February 2009 were not work related, and are thus regarded as a pre-existing condition. Since your job duties during February were the catalyst for your ensuing symptoms, it has been determined that your work aggravated your condition.”

On May 21, 2009, the employer appealed the adjudicator’s decision to accept the worker’s claim. The employer indicated the worker did not file her compensation claim until after a disciplinary hearing was held on February 10, 2009. While the claim was under investigation, the worker went to the company’s benefit provider and her claim was denied. She went to EI as well, suggesting that the worker herself did not consider her injury to be work-related. The employer was not notified of the worker’s injury until it was advised by the WCB of the worker’s claim.

In a submission to Review Office dated June 1, 2009, the worker advisor submitted that the file evidence supported the WCB’s decision that there was a causal relationship between the worker’s left shoulder, neck and upper back difficulties and her employment duties.

In a further submission to Review Office dated June 3, 2009, the employer outlined their position that the worker should not be entitled to WCB benefits on her February 6, 2009 claim, based on the following:

· when the worker was notified on February 6, 2009 about a meeting February 10, 2009, she then had her doctor fax in a note.

· while the worker indicated that she would have gone to work on February 6 except the employer released her from duty that day, the employer’s position is that the worker was not released from duty she was reassigned.

· the worker did not file a claim on February 3, 4, 5, 6, 7, or 8 even though she was at work and had the opportunity to do so. She only filed a report claiming she injured her left shoulder on February 3, 2009 following a meeting with management on February 10, 2009. The worker was upset at this meeting because the employer would not offer her an office job.

· the worker’s job duties do not involve lifts exceeding 20 lbs. The only item that potentially could reach 20 lbs are carry-on bags. Regarding commissary, food trays, push carts and cans of drinks, the employer has a company who loads the aircraft of all commissary, food trays, can drinks, jugs of water and anything else the aircraft requires.

· the worker has two prior WCB claims and both were filed on the date of incident.

On June 18, 2009, Review Office confirmed that the claim was acceptable. Review Office indicated that the documentation on file firmly established that the worker’s left shoulder problems were employment-related. It did not place significant weight on when the worker filed a new claim and her applying for benefits from other sources, in light of the uncertainty of her standing with the WCB. In that regard, Review Office noted that there was considerable file documentation discussing whether the worker’s problems which led to her ceasing work in February 2009 should be considered a recurrence of her October 28, 2008 accident or a new claim. Review Office stated it did not turn its mind to this issue. On June 23, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The employer is appealing the WCB’s acceptance of a February 2009 claim filed by the worker, stating that they acknowledge that the worker has injuries to her neck, back, and shoulders, but dispute that those injuries are work-related.

Applicable Legislation

In considering any appeal, the Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, and state that the worker must have suffered an accident that arose out of and in the course of employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

For the worker's claim to be accepted the worker must have had an accident as provided in subsection 1(1) of the Act, and the accident must have “arisen out of and in the course of employment” as provided in subsection 4(1) of the Act.

The employer’s position:

The employer’s submission focused on a number of issues and inconsistencies on the file which, they argue, taken together provide enough support for the proposition that the worker’s neck and left shoulder injuries are not work-related. The employer does not challenge that the worker has medical difficulties, but disputes that these problems arose out of and in the course of her employment as a flight attendant in early February 2009. During the hearing, the employer expanded on many of the discussion points raised by them in their earlier submission to Review Office, and in particular:

· the worker asserts a February 3, 2009 accident date, yet worked until February 5, 2009 and even though off work as of February 6, she delayed filing a Report of Injury with the Board until after a disciplinary hearing on February 10, 2009;

· the worker had ample opportunity to advise the employer but did not do so until the employer initiated a request on February 12 for an accident report;

· the worker did not file a mandated “frozen door” report for the alleged cause of the injury, the absence of which casts doubt on the veracity of the worker’s claimed mechanism of injury;

· the employer’s investigations with other carriers failed to corroborate similar door problems with other similar aircraft;

· door inspections were undertaken which found no problems; reports of how and when the injury occurred were not consistent with weather reports. The employer also noted that the worker applied for Employment Insurance benefits and short term disability benefits before the claim was accepted, suggesting that the worker did not treat this as work related. They also referred to a number of ongoing labour relation issues which they suggest may factor into the veracity of the worker’s claim.

The employer described many of the job duties of a flight attendant, the various weights and body positions involved, and suggested that none of them could have caused the worker’s left shoulder difficulties.

The employer commented on the worker’s evidence on file that the doors were so difficult to open in cold climates that the pilot would come back and help her with the door. Their position is that the pilot is not allowed to leave the cockpit under any circumstances to help out like this according to operating procedures, because of the risk of injury to the pilot. However, under questioning from the panel, the employer did acknowledge that some sort of disciplinary proceedings had taken place with the pilot, without details being provided to the panel.

The worker’s position:

The worker was represented by a worker advisor at the hearing. The worker’s position is that she has never specifically pointed to an individual event on a particular day as being the cause of her left shoulder difficulties that led her to be off work on February 10, 2009. Her evidence described the flight routines involved in flying smaller planes into northern communities. She noted that at various times, she has commented to the WCB about different aspects of the job, but this was in response to their desire to pinpoint an incident. In her mind, the most likely causes of her back problems were not related to her in-flight duties. Rather, it was the opening of the rear passenger door, particularly in remote northern communities with extreme cold temperatures. The worker described the arm movements required to open the door, which involved rotating a large handle from the 9 o’clock position to the 12 o’clock position with her left hand and arm, while pulling a handle with her right arm. In very cold conditions, this was very difficult to do. She notes that she had asked the pilot to help her on occasion, and that the pilot had in fact done so. The first officer was also aware of the difficulties in opening the door. The worker’s representative noted that the pilot and first officer had both been interviewed by the WCB, and confirmed that the doors were difficult to open and that the pilot had indeed helped out.

As for the frozen door reports, the worker advised that those reports are only used when the doors are truly frozen, that is, when they cannot be opened. In the situations described, the doors were simply difficult to open, and were in fact opened successfully. As such, no reports were filed or thought necessary to be filed.

As for the delay in reporting, the worker indicates that in early February 2009, she was talking with the WCB about the continuation of her October 2009 claim, which her employer already knew about. She did not turn her mind to filing a new claim with the WCB (or informing her employer of same) until she was advised by the WCB that they felt that this was a separate matter from her earlier claim.

Analysis:

For the employer to succeed, the panel would have to find, on a balance of probabilities, that the worker did not suffer an accident arising out of and in the course of her employment. The panel was unable to make this finding and does not support the employer’s appeal, for the reasons that follow.

At the outset, the panel notes that the employer airline carrier is extremely proud of its safety standards, and carefully outlined a variety of safety procedures, safe practices, and inspection processes that it uses and in fact used after the incidents that form the basis of this claim were first disclosed to them. At the heart of many of these explanations is that the accident simply could not have occurred because the employer operates in a highly regulated environment; their workplace practices and procedures do not allow their employees to do the things they described, or would have required the employees to file reports on incidents or mechanical defects, the absence of which are clear indications that the events did not occur as reported. The employer’s position is that their practices made it impossible for the accident to have occurred as alleged.

The panel does commend the employer for its safety practices and standards, but wishes to point out that the employer’s practices are not under scrutiny, rather the panel must address whether in fact an accident did occur, on a balance of probabilities. The workers compensation system is a no fault system, and no matter how well a work environment is designed or regulated, it is still occupied by human beings who may or may not comply with or behave exactly as expected. A finding that a worker was injured does not in and of itself imply that the employer did something wrong.

Within the facts of this case, the panel accepts that while there were a number of job duties performed by the worker as a flight attendant, the panel finds that the worker injured her left shoulder while flying in and out of a number of remote communities in early February 2009, and in particular, most likely hurt her shoulder while opening aircraft doors in cold weather conditions. In coming to this conclusion, the panel notes:

  • The worker’s travel itinerary in early February involved numerous landings in remote northern communities each day, on a circuit starting and ending in Winnipeg.

  • The planes were relatively small, with a crew of three, including a pilot, first officer, and flight attendant.

  • It was the flight attendant’s responsibility to open the plane doors after landing. The worker’s evidence is that this was very difficult (but not impossible) to do, in extreme cold conditions, which would be the norm in the month of February in the far north.

  • The worker demonstrated how she would use each arm, to open the doors. The panel notes in particular that the left hand and arm are required to travel in an arc to push a lever. The worker’s evidence is that it requires much more force to move the lever in very cold conditions, to the point that she was unable to open the door by herself on occasion. The panel finds that this particular job duty places extreme stresses on the left shoulder and represents a mechanism of injury consistent with the development of the worker’s left shoulder and neck injury.

  • The difficulty in opening the doors on those early February 2009 trips in extreme cold conditions was corroborated by the first officer and the pilot, as was the worker’s evidence that she asked for and received assistance from the pilot to open the doors. Three co-workers, all flight attendants, also confirmed the difficulties in opening the doors in cold weather conditions. While the employer stated emphatically that a pilot was never allowed to leave the cockpit because of the risk it represented to the continuation of any flight, the panel finds that the evidence is clear that the pilot did in fact do so. The panel accepts the worker’s evidence that up north, crews do what is needed to be done. Further, the panel notes the employer’s acknowledgement at the hearing that the pilot was subjected to some sort of disciplinary hearing over this matter, suggesting that the door difficulties reported by the worker were based on real incidents. It is the panel’s view that the worker’s injury likely resulted from over-exerting in unsuccessfully opening one of the doors (prior to seeking assistance), and then repeatedly stressing the shoulder on subsequent door openings while performing the same physical actions.
  • The panel further accepts the worker’s evidence that difficult-to-open doors are not the same as “stuck doors,” and that reports were therefore not filed, nor would a fleet inspection of plane doors in normal weather conditions have been able to replicate the problem.

  • As for the issue of delayed reporting, the panel notes that the worker’s various statements on file suggest that the worker had always believed that there were two separate incidents, but that she became caught up in the characterization of the injury as a continuation of her earlier injury, rather than as a new accident. It is apparent from reports of her attending physician that the worker did have a new episode of pain in early February which she related to work. The panel finds the worker’s explanation to be reasonable, that she did not feel it was necessary to report her reinjury as a new injury, since she had been discussing her increasing difficulties in early February with the WCB and asserting its relationship with her earlier injury. She did in fact advise her employer of the new incident in response to the employer’s queries, after she was advised by WCB that it considered her recovered from the old injury and thus could not tie this incident to the previous one.

  • The panel acknowledges the employer’s concerns that there are labour relation issues between the employer and worker that they suggest affects the worker’s credibility in establishing the claim. The panel finds, however, that there is considerable secondary evidence, as noted above, sufficient to establish on a balance of probabilities that an accident occurred.

Based on this analysis, the panel finds that the worker did suffer an accident arising out of and in the course of her employment, as defined in the legislation. Accordingly, the employer’s appeal on claim acceptability is denied.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 25th day of March, 2010

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