Decision #22/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for a left bicep injury that he related to an accident that occurred on August 15, 2008. It was ultimately determined by Review Office that the worker's claim for compensation was not acceptable as it was unable to establish that the worker suffered personal injury arising out of and in the course of his employment prior to going off work for non work related hand surgery. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on February 1, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 28, 2009 for a left bicep injury that occurred at work on August 15, 2008. The worker indicated that he delayed in reporting because he thought the pain would go away after being off work for another injury (a non-work related hand injury for which he underwent surgery on October 24, 2008). The worker described his work duties as: loads paper, works on presses (mechanical); loads skids of paper, adds ink, heavy lifting of weights ranging from 30 to 100 lbs. continuously throughout the day. The worker reported that he went off work on October 23, 2008.

Information obtained from the employer on September 17, 2009 was that the area of injury was the left elbow. The worker had not been at work since 2008 and was on disability benefits. The worker claimed he had left elbow tendinitis. The worker indicated that the date of injury was on September 8, 2008 while working on the night shift and he did not say what caused the injury.

On September 8, 2009, the worker advised the WCB that he went on company disability for his broken hand in October. In November 2009, he started collecting disability for his bicep injury and he recently received a letter from the disability provider that he should apply for WCB.

On September 11, 2009, the worker advised the WCB that his bicep difficulties began when a co-worker came to work with him because another machine operator was off work. The co-worker started working on the side of the machine that the worker normally worked on. The worker had switched to the other side of the machine and his left bicep difficulties started.

On October 7, 2009, the adjudicator spoke with the worker's co-worker. The co-worker confirmed that he worked with the worker about a year ago on the press. The worker "did tell him that his arm was sore when they switched sides of the press." The co-worker confirmed the worker's history that [another co-worker] did work the side of the press that worker normally worked on.

The adjudicator spoke with the worker on October 23, 2009 and obtained additional details of his job duties. The worker indicated that his symptoms first started when cleaning back cylinders. Within a few weeks of switching sides of the press he had a burning sensation on the inside of his forearm that was constant. Even while off work for scheduled days off, he would have the burning sensation. The worker noted that he wore an elbow bandage at work.

On January 20, 2010, a different co-worker confirmed that the worker switched sides of the machine and that he mentioned elbow difficulties once or twice prior to leaving work in October 2008.

Medical reports showed that the worker attended physiotherapy treatment starting December 30, 2008. The history he provided as to the cause of his bicep difficulties were repetitive movements at work in relation to lifting, pushing, pulling and loading. The diagnosis outlined was lateral epicondylitis and biceps/brachialis strain. "Other contributing conditions-report of right hand injuries had potential to cause overuse of left hand."

In a September 18, 2009 report, the treating physician noted that when he presented on December 4, 2008 the worker gave a 3 month history of pain on the flexor surface of the left arm. It ran from his mid-forearm to the mid bicep. It started about 3 months prior and he felt it was related to his work. The worker's history was significant for a ganglion on his right hand. He had been using the left arm more than usual to spare his right hand.

On November 16, 2009, the file was reviewed by a WCB medical advisor at the request of primary adjudication. The medical advisor opined that the diagnosis was an incomplete tendon tear at the insertion of the biceps on the radial tuberosity. "Exertional stress with forearm lifting is a likely mechanism of this injury."

On November 20, 2009, primary adjudication advised the worker that his claim for a left bicep injury could not be accepted. The adjudicator noted in the decision that the employer was unaware that the worker was having bicep difficulties prior to leaving for unrelated hand surgery in October 2008. The employer advised that the worker did not complete a Notice of Injury form or report a work injury until recently. Based on the worker's delay in seeking medical treatment and reporting his injury, the WCB was unable to confirm that an accident occurred at work or that a relationship existed between his bicep difficulties and his employment.

File records show that the worker provided primary adjudication with a copy of a "Notice of Injury" form signed by him on September 20, 2008. The date of injury was recorded as being September 19, 2008. The cause of injury was: "Left arm extending when doing transfers repeatedly pulling back and forth." The worker indicated "Felt burning sensation in bicep and forearm."

On January 28, 2010, primary adjudication advised the worker that the WCB was now able to confirm that he reported left bicep difficulties while he was still working in September 2008. The WCB however, was concerned with the amount of time the worker had been away from work and the progress of recovery of his bicep difficulties. The worker was advised that his claim had been accepted on a limited basis until he saw an orthopaedic specialist. Once the specialist's report was received, a decision would be made as to whether the WCB would accept his bicep difficulties and his possible entitlement to wage loss benefits.

In a further decision dated February 8, 2010, primary adjudication advised the worker that his claim for compensation had not been accepted as the WCB was unable to establish a cause and effect relationship between his employment duties and his left bicep difficulties. In making her decision, the adjudicator noted the following:

  • the worker filed a claim for left bicep difficulties that started in August 2008 which he related to his job duties as a printers' apprentice;
  • the worker's first date of treatment was December 4, 2008. His physician indicated that he had pain in the bicep tendon but had full range of motion and there was no swelling or deformity;
  • a neurologist confirmed there was no neuropathic component;
  • EMG and a bone scan testing were normal;
  • an August 23, 2009 MRI showed no fluid at the elbow joint however there was fluid on the left bicep tendon insertion. The bicep tendon was noted to be intact and no muscle atrophy was seen;
  • the worker's physician diagnosed bicep tendonitis;
  • a November 3, 2009 progress report indicated that his condition was unchanged.

On February 26, 2010, a worker advisor appealed the above decision to Review Office. The worker advisor submitted that the claim satisfied the definition of an "accident" under subsection 1(1) of the Act. She noted that the worker reported his left arm/bicep difficulties arose from his work duties in 2008 and co-workers confirmed that the worker had left arm difficulties related to work while he was in the course of his employment in 2008. She submitted that the claim also supported subsection 4(1) of the Act. The worker's personal injury to his left forearm and mostly his bicep, on a balance of probabilities, had arisen out of and in the course of his employment. There was no evidence to the contrary.

As the worker advisor's submission contained new information (a job description and a picture of the machine that the worker used at work), Review Office referred the file back to primary adjudication to consider the new information.

On March 16, 2010, the worker was advised that no change would be made to the previous decision to deny responsibility for his left bicep difficulties. The adjudicator indicated that the onset of the worker's symptoms began in August/September 2008 and that he last worked in October 2008. Resolution would have been expected to have occurred sometime between December 2008 and January 2009. On April 12, 2010, the worker advisor asked that the worker's file be re-listed with Review Office.

On April 23, 2010, Review Office determined that the claim was not acceptable. Based on the worker's delay in reporting the injury to his employer, the delay in seeking medical attention, the inconsistencies in the co-worker's information and the increase in symptoms while off work, Review Office stated that it could not establish that the worker suffered personal injury by accident arising out of and in the course of his employment prior to going off work for non work related hand surgery. On May 18, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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.

This case deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board. These sections provide the worker must have suffered a personal injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was represented by a worker advisor who made a presentation on his behalf.

The worker answered questions posed by his representative and the panel.

The worker advisor submitted that all the requirements of the Act have been met. The worker was injured at work performing his employment duties. She noted that the worker's co-workers were aware that his left arm was injured.

The worker advisor noted there was some question of when the worker notified his employer. The worker advised that he completed a notice of injury form on September 20, 2008 and placed the form in a box in the plant manager's office. The worker advised that he made a photo-copy of the form at the time, but did not find the copy until he looked through his records in late 2009. He advised that he did not obtain a supervisor's signature because there was no supervisor present during his shift.

The worker advisor also noted that the worker provided his physician and physiotherapist with a history regarding a work injury.

The worker advised that he did not initially pursue the claim for benefits because he was booked to take a medical leave for an unrelated injury and thought that his workplace injury would improve while off work. When it became apparent that his workplace injury was not improving, he re-contacted his employer and the WCB.

The worker advised that his wage loss and other expenses were covered by the disability provider which was covering him for his unrelated injury. The disability provider has subsequently advised him that it considers his arm injury to be work related.

The worker provided a detailed description of the equipment he worked on at the time of the accident and the mechanism of injury. He said that he had worked on one side of the machine for many years but in the fall of 2008 he was required to work on the other side. He attributed his injury to this change in the manner that he did his job. He explained and demonstrated the job duties and how switching sides impacted his upper extremities.

The worker advised that he had pain on his left arm in an area that extended from his mid elbow to mid forearm. He indicated that he felt pain on the lateral and medial side of the elbow. He did not have elbow joint pain. Regarding his current condition, he said that he occasionally has pain in his arm but that he has returned to similar work with a different employer.

Analysis

The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of his employment. The panel, on a balance of probabilities, found that the worker was injured in the workplace and that his claim is acceptable.

The panel found the worker to be forthright and honest in answering its questions, and found his evidence to be credible on matters relating to the reasons for delay in seeking medical attention and the issue of notification to the employer. The panel finds that the worker notified the employer by placing a notice of injury form in a box in the plant manager's office on September 20, 2008.

In reaching our conclusion the panel relies upon the following:

  • the worker notified his employer when the symptoms developed.

  • a co-worker confirmed that the worker told him his arm was sore when they switched sides of the machine they worked on. Another co-worker confirmed that the worker mentioned his elbow difficulties once or twice prior to leaving work in October.

  • the treating physician's report of September 18, 2009 noted that the worker attended on December 4, 2008 and gave a three-month history of pain on the flexor surface of the left arm.

  • a physiotherapist's report dated October 21, 2009 noted that the worker attended for treatment commencing December 30, 2008. The report notes that onset occurred in September 2008 and that the worker noticed progressive increase in pain from repetitive movements at work - lifting/pushing/pulling/loading.

The panel finds that the worker injured his left arm in an accident which arose out of and in the course of his employment. The claim is acceptable.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of February, 2011

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