Decision #104/10 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for right hand difficulties that she related to her work duties as an office cleaner. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered an injury arising out of and in the course of her employment. The worker appealed the decision to the Appeal Commission and a hearing was held on October 28, 2010 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On January 22, 2009, the worker filed a claim with the WCB for right hand difficulties that she related to her job task of picking up garbage while employed as an office cleaner. The accident date was recorded as December 24, 2008 and was reported to the employer on January 23, 2009.
The employer's accident report dated January 23, 2009 stated that the worker was performing her normal duties when she started to have pain in her right hand.
Medical information showed that the worker attended a physician for treatment on January 20, 2009 and on January 22, 2009. The attending physician reported that the worker had right lateral epicondylitis which becomes worse with pushing the cleaning cart and lifting at work.
On January 30, 2009, the worker was examined by a sports medicine specialist. He reported "1/12 ago after cleaning at work she felt pain to her R elbow and R forearm. The elbow pain is generalized and is worse when she straightens it, the forearm pain is worse when she lifts or rotates her R arm. She has seen her FP, WIC. She had x-ray at [clinic's name] 1/52 ago - no results. She continues to have the pain to her R arm - she had 2/52 off work." The diagnosis outlined was a right elbow capsular sprain and extensor strain.
When speaking with a WCB adjudicator on January 23, 2009 the worker described her job duties as dusting, vacuuming, cleaning bathrooms and kitchens as well as emptying garbage. The worker stated she was throwing the garbage bags into a big dumpster and while throwing it, felt a sharp pain in her right hand. The worker said she reported the injury to her supervisor on January 20 when she went to see a doctor. She did not report her injury to the employer earlier than this as she thought the pain would go away on its own.
On February 4, 2009, the adjudicator spoke with the employer and was advised that they were not aware of any accident or complaints. The worker continued to work and did not say anything. The adjudicator also spoke with the worker. The worker advised that the night supervisor she referred to on January 23, 2009 was the supervisor from her other job where she watches kids.
In a decision dated February 12, 2009, the worker was advised that her claim for compensation was not acceptable as the WCB was unable to establish that her injury occurred at work as she described. The decision was based on the worker's delay in reporting a workplace injury to her employer and the delay in seeking medical treatment.
On March 3, 2009, the worker appealed the above decision to Review Office. The worker stated, "My hand injury did occur at work. I am 100% certain of this. I thought that the injury would get better over time, but it worsened with continued work. My work is my responsibility, so I wanted to continue to work for as long as possible. Because this injury occurred at the workplace, I should be eligible for compensation."
On March 16, 2009, Review Office determined that the worker's claim was not acceptable. In making its decision, Review Office referred to the medical information on file and stated that none of the reports provide details of the accident history which the worker had reported to the WCB. Given the delays in the worker reporting her accident and seeking medical treatment as well as the other discrepancies noted in the medical reports, Review Office could not establish, on a balance of probabilities, the occurrence of an accident arising out of and in the course of her employment.
On March 31, 2009, the worker provided a further submission to Review Office. On April 14, 2009, the Review Officer advised the worker that he was unable to change his initial decision based upon the arguments presented in her recent submission.
On May 6, 2010, the Worker Advisor Office asked Review Office to consider witness statements provided by the worker to show that co-workers were aware of her right hand/arm difficulties while she was working between the date of accident and January 20, 2009.
In a letter to the Worker Advisor Office dated May 18, 2010, Review Office indicated that the new evidence did not alter the previous decision to deny the worker's claim. "The fact remains that the worker failed to notify her supervisor or any other employee of [employer] of her injury until January 20, 2009, and that there was also a substantial delay in seeking medical treatment and discrepancies concerning the accident history which was provided to healthcare professionals."
On May 31, 2010, the worker advisor informed the Appeal Commission that she would represent the worker at a hearing. A hearing was then arranged.
Reasons
Applicable Legislation
The issue in this appeal is whether the worker's claim is acceptable. 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...
The key issue to be determined by the panel deals with whether the worker was injured in the course of her employment.
Worker's Position
The worker was represented at the hearing by a worker advisor who made a submission on behalf of the worker. The worker advisor reviewed the mechanism of injury reported by the worker and the medical findings by the physicians. She submitted that the mechanism of injury is consistent with the diagnosis provided by the family physician. She also reviewed the explanations advanced by the worker for the delay in reporting the accident to the employer and seeking medical attention. She advised that the worker has no prior injuries involving her right arm.
The worker answered questions posed by the worker advisor and the panel. She described her job duties which involve the day-time cleaning of an office. Regarding the onset of pain, she stated that was throwing a large garbage bag into a dumpster. She demonstrated how she throws garbage bags into the dumpster. She also identified the area of her arm where she first felt the pain being her forearm (above the wrist) and continuing through the elbow to a point just above. She was unable to tell the panel the weight of the garbage bags in general or the weight of the particular bag which she lifted on December 24, 2008.
The worker explained that she did not initially feel the injury was serious but over time it worsened. She said that she continued to work as it worsened because she needed the income from employment. She also continued to work at her second job but was unable to lift the child who she previously lifted.
She advised that she was very disappointed that her claim was not accepted because she had told the truth. She also advised that she continues to have pain in the area of her elbow.
Analysis
In order for the worker's appeal to be successful, the panel must be satisfied that the worker had an accident as defined by the Act. The panel must make such a finding on the balance of probabilities.
In this case the panel found, on a balance of probabilities, that the worker had an accident in the workplace and, accordingly, that the claim is acceptable.
At the hearing, the panel had the opportunity to meet the worker face-to-face and to ask her questions on a variety of issues surrounding her claim, including questions about the mechanism of injury, initial and subsequent symptoms, and reasons for the delay in reporting her injury to her employer and seeking medical treatment. The panel believes that language barriers (English is not her first language) and the worker's shy demeanor were major factors in the inconsistencies that were noted in her claim. For example, the worker's reference to her hand was intended as a reference to her right arm, and particularly the elbow area. Regarding the late reporting of the injury to her employer and the delay in seeking medical attention, the worker explained that she did not initially feel the injury was serious so she continued to work until the symptoms worsened and she could no longer work. At that point she promptly sought medical attention and notified her employer.
There was concern regarding inconsistencies in the mechanism of injury and the symptoms that the worker experienced. At the hearing the worker explained that she first had pain when she was throwing garbage into a garbage dumpster. She advised that the initial pain was in the area above and below her right elbow. As she continued to work, the pain worsened and her whole arm began to feel sore. The panel finds that this is consistent with the information provided to her family physician who reported in his First Report that "pain worse with pushing cleaning cart and lifting at work - gradually increased pain with continuing to work". It is also consistent with the findings of the family physician regarding tenderness in various areas of the right arm and the diagnosis of right lateral epicondylitis and a repetitive-use type injury.
Regarding other medical findings, the panel notes that the worker's complaints were consistent with the findings from other physicians which relate to the associated structures above and below the elbow plus lateral epicondylitis.
The panel notes the worker was off work for holidays after the injury but that she did tell other persons about the injury when she returned to work in January. The panel notes that third parties have confirmed that the worker did complain about the injury, as early as January 2, 2009.
To conclude, the panel finds that the worker has consistently described the mechanism of injury, provided a reasonable explanation for the delay in seeking medical treatment and informing her employer, and has provided third party corroboration regarding her injury. The panel is satisfied, after careful questioning, that the worker did suffer a work injury.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 2nd day of November, 2010