Decision #118/10 - Type: Workers Compensation
Preamble
This is an appeal from the decision made by the Review Office of the Workers Compensation Board (“WCB”), which held that the evidence did not support the worker’s claim that he sustained a right shoulder injury arising out of and in the course of his employment. The worker filed an appeal with the Appeal Commission through the Worker Advisor Office. A hearing was held on October 19, 2010 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On August 4, 2009 the worker filed a Worker Injury Report with the WCB in which he reported a right shoulder injury that occurred on July 13, 2009. The worker wrote that he felt a sharp pain from his shoulder to his wrist while pulling a big piece of metal out of a rack. The worker noted that he first sought treatment on July 30, 2009 and reported the injury to the plant manager on July 31, 2009.
In the Doctor's First Report dated July 30, 2009, the worker's description of the accident is described as "Pulling sheet metal out of bin - started developing pain over upper shoulder blade to wrist - became progressively worse as he continues to work". The diagnosis provided was a strain shoulder/neuralgia right arm.
A WCB adjudicator contacted the worker on August 6, 2009. According to the file notes, the worker advised that the injury occurred while he was pulling sheets of metal that weighed about 200 lbs. The worker told the adjudicator that he advised a specific co-worker that his arm was sore after pulling. He did not report the injury on that day and continued to perform his regular duties until July 30, 2009. The worker identified several other co-workers as witnesses of the injury.
According to the file notes, the adjudicator spoke with the co-worker identified by the worker. The co-worker advised that he remembered the worker complaining about a sore arm a couple of days prior to his last day of work, but he did not know how the worker injured his arm.
The adjudicator spoke to one of the witnesses identified by the worker. This co-worker advised that he saw the worker holding his arm and knew the worker was in pain about 2 to 3 days prior to the worker going off work, but he did not know how the worker injured his arm.
The adjudicator also spoke to the plant manager identified by the worker on the Worker Accident Report. He advised that he first became aware of the injury when the worker provided him with a medical note on July 30 or 31st and that he was not aware that the worker had any issues prior to this time.
In a decision dated August 21, 2009, the WCB adjudicator denied the worker’s claim on the basis that the evidence did not support a relationship between the worker’s right shoulder difficulties and an accident at work on July 13, 2009 due to the worker’s failure to report the accident in a timely fashion or seek prompt medical attention.
In a submission to Review Office dated November 17, 2009, a Worker Advisor advanced the position that the worker delayed in reporting as he anticipated that the injury would resolve on its own without the need for medical treatment. The Worker Advisor pointed to the progressive development of the worker's symptoms, which was supported by the Doctor’s first report that noted that the worker’s symptoms “became progressively worse.” It was therefore reasonable that the worker would not have notified his employer immediately or sought medical treatment right away. The Worker Advisor also argued that it was understandable that the co-worker was unable to recall a specific injury given the progressive nature of the worker’s symptoms. The Worker Advisor submitted that the worker’s reports regarding the nature of the accident remained consistent and the diagnosis provided by the doctor corresponded to the described mechanism of injury.
The Review Office denied the worker’s claim. In its decision dated January 6, 2010, the Review Office held that there was insufficient evidence to establish that an injury occurred in the course of the worker's employment on July 13, 2009 noting that the worker continued to perform his regular work duties without any complaints to his employer or co-workers until a couple of days prior to his last day of work.
On February 9, 2010, the worker advisor appealed the Review Office's decision to the Appeal Commission and a hearing was held.
Reasons
Applicable Legislation:
The Appeal Commission is 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…” (emphasis added)
The issue before this panel is whether there is sufficient evidence to establish on a balance of probabilities that the worker’s right shoulder injury arose out of and in the course of his employment.
The Worker’s Position:
The worker was assisted by a Worker Advisor at the hearing. The worker testified that he injured his arm while pulling steel panels weighing about 600 lbs. His evidence was that at the time of the incident there were two co-workers who saw that he was injured and that following the injury, the worker spoke to both and told them that he hurt himself pulling. One of the co-workers was within 30 feet of the worker and immediately saw that he was injured. The worker testified that a third co-worker saw him jumping up and down in pain and holding his arm at the time of the injury and he told the co-worker that he hurt himself.
The worker also testified that he went to the office on the day of the injury and told a number of people there including the shipper/receiver, supervisor and the plant manager, that he hurt his arm pulling something. He testified that from the time of the injury he went to the plant manager’s office everyday and told him that his arm hurt pulling things out of the rack but he was never told to fill out a compensation claim. The worker testified that he was personal friends with some of the co-workers as well as the plant manager and he had no idea why they did not corroborate his evidence.
The worker also testified that at the time of the injury he felt a sharp pain like a hot poker to the back of his shoulder blade and that it was the worst pain he had ever felt. The next morning his forearm felt like it was on fire and he couldn’t pry his fingers open. He indicated that the pain was constant and continued to get worse over the next two weeks. He described the pain and cramping as so bad that he couldn’t do anything. He also testified that for the next two weeks he cradled his right arm, which he could hardly use and tried to get his co-workers to help him do his job. His evidence was that there were no workers available to help him and he continued to pull 600 lb. plates every day for the next two weeks.
Employer’s Position:
The employer’s position was that the accident was not reported to the supervisor or the plant manager prior to July 30 or 31st and the worker’s evidence was not corroborated by any of the workers at the plant, making it difficult to believe that the injury occurred in the manner described by the worker.
Analysis:
After considering all of the evidence, the panel is of the opinion that there is insufficient evidence to establish that, on a balance of probabilities, the worker suffered an injury to his shoulder during the course of his employment.
The reasons for this conclusion are primarily based upon the lack of corroboration from any of the co-workers or the supervisor or plant manager that the injury occurred when the worker said it had. While the worker testified that on the day of the injury he advised the plant manager that he hurt himself and that he repeatedly advised the plant manager over the following 17 days that he hurt himself, the evidence on file was that the plant manager was unaware of any injury to this worker until July 30, 2009.
In addition, while the worker testified that he was jumping in pain and holding his arm and that there were a number of co-workers who were aware that he was injured immediately following the accident, the evidence on file was that the co-workers named by the worker as witnesses were not aware that the worker had injured his arm until a few days before July 30, 2009.
The panel also notes that the worker described the injury not as a gradual progression and worsening of symptoms but as a continuous sharp pain that was so bad he was unable to do anything with his right arm. This description of the immediate and ongoing pain is not consistent with the description of the injury as a progression of symptoms found in the Doctor’s First Report.
Given the extreme and continuous pain and cramping that the worker described from the time of the injury on July 17 until July 30, 2009, one would have expected him to report the injury immediately or within a few days of the injury. If, as he testified, many co-workers were aware of his injury when it occurred, including the supervisor and plant manager, it is difficult to understand why no corroboration of this evidence was forthcoming.
Given the many discrepancies noted above, the panel is not satisfied that the evidence supports a finding that on a balance of probabilities the worker’s right shoulder injury arose out of or in the course of his employment. We therefore hold that the claim is not acceptable. The worker’s appeal is dismissed.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. Thow - Presiding Officer
Signed at Winnipeg this 9th day of December, 2010