Decision #32/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for a work related injury to his right wrist. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered an injury that arose out of and in the course of his employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on December 15, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable as a right wrist strain/sprain injury.

Decision: Unanimous

Background

On February 16, 2010, the worker filed a claim with the WCB for a right wrist injury that occurred at work on February 12, 2010 and was reported to the employer on February 16, 2010. The worker described his injury as follows:

"We have rollers that we put in the back of 53 foot trailers, parked trailer, when I was connecting the one roller and lifting the horse to connect the other roller one of the rollers came off and my hand slipped in the downward motion and I tweaked my right wrist."

The worker indicated that he delayed in seeking medical treatment as he did not know how bad it was at first and then he felt shooting pain up his arms, he couldn't sleep and it started to hurt more.

The Employer's Incident Report dated February 18, 2010 confirmed that the worker reported a right wrist injury on February 16, 2010 with the date of accident being February 12, 2010. The description of injury was outlined as follows:

"Employee states he was hooking up 2 sections of rollers together when the roller in one section came out and my arm and wrist went down."

A Doctor's First Report showed that the worker attended for treatment on February 15, 2010. The worker's description of accident was "heavy lifting work has flared pain in a ganglion." Objective findings noted were a painful lump at the flexor region of the left wrist. The diagnosis outlined was a wrist strain and the worker was referred to an orthopaedic specialist.

On February 17, 2010, the worker spoke with a WCB adjudicator and said his job duties involved loading and unloading trailers and splitting freight on a conveyor belt. He described the mechanism of injury as follows:

"Setting a roller in a trailer

Put the roller in and connected to a horse

Pushed down on the roller

Roller came out of socket

Hand went through the roller and twisted his wrist

And elbow hurts, feels the tweak of the wrist may have made it hurt

Or maybe he bumped his elbow, isn't sure."

The worker advised the adjudicator that he did not report the injury to his employer on February 12 as he had no benefits to be off work and wanted to see if his wrist would heal over the weekend. The worker stated that he attended medical treatment on February 15, 2010 and the doctor said his wrist problem was not work related. He then went to a different doctor for a second opinion on February 17, 2010 and was told that he sprained his wrist and had tennis elbow. The worker indicated that he broke his wrist in year 2000 and it was not work related. In April 2007, he was hit with 120 lbs. of freight to his head and fell to ground and hurt his hand (WCB injury). The worker indicated that the February 12 accident occurred at 5:30 and he was sent home at 8:15 because he had an argument with the lead hand.

In a letter to the WCB dated February 18, 2010, a human resources counselor with the accident employer questioned the validity of the worker's claim. He noted that the worker was arguing with his lead hand on the day of the alleged injury and was sent home before the end of his shift. He stated that the way in which the worker reported the injury seemed unlikely since "when rollers are connected it is done so by pulling up and not pushing down. We do not understand how if he was pulling up on the section of rollers, how his arm and wrist would have gone down. There were no witnesses to the injury and also rollers are to be put together by two employees and not one." He further stated that the worker was known by his co-workers and supervisors to possibly have a pre-existing condition with his right wrist.

In a further letter to the WCB dated February 23, 2010, the human resources counselor with the accident employer indicated that the worker brought in a medical note on February 19, 2010. They were concerned as it now showed that the worker had tennis elbow and this injury was not reported at the time that he reported the wrist injury on February 16, 2010.

In a decision dated February 26, 2010, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to establish a relationship between his current right wrist and elbow condition and an accident occurring at work given that he delayed in reporting and seeking medical treatment. The decision noted that the worker first attended for medical treatment on February 15, 2010 and the physician did not believe that his injury was work related. The worker then sought further medical treatment on February 17, 2010.

On March 11, 2010, the worker spoke with a case manager as he disagreed with the decision to deny his claim. The case manager subsequently contacted two witnesses that the worker identified as being aware of his injury.

In a second decision dated March 24, 2010, the worker was advised that no change would be made to the original decision to deny his claim. The case manager noted that the witnesses identified by the worker were contacted. The two individuals could not recall an injury or complaint from the worker on any specific date. Both individuals noted that the worker complained of pain in his wrist over the last year. On March 26, 2010, the worker appealed the decision to Review Office.

On May 5, 2010, Review Office concluded that there was insufficient evidence to establish that the worker injured his wrist as a result of an accident arising out of and in the course of his employment on February 12, 2010. Review Office placed weight on the following evidence in making its decision:

  • the worker reported to the WCB that he injured his right wrist when connecting rollers when his right hand slipped in a downward motion and "tweaked my right wrist".
  • the initial attending physician reported the description of accident as "heavy lifting at work".
  • the worker stated on March 11, 2010 that he had no problems with his wrist prior to February 12, and that on February 12 he mentioned the injury to two co-workers. Both co-workers stated that the worker mentioned his wrist was bothering him over the past year and neither recalled the worker "reporting an injury on any certain day."

On July 12, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

On September 27, 2010, the worker underwent an MRI of the right wrist. The findings were read as follows:

"Small central tear within the triangular fibrocartilage.

Volar ganglion adjacent to the radial styloid.

Widening of the scapholunate interval with a small partial tear, dorsal."

Medical information showed that the worker underwent surgery to the wrist on December 10, 2010 to have a ganglion removed and a "scope."

A hearing was held at the Appeal Commission on December 15, 2010. Following the hearing, the appeal panel requested additional information from the treating orthopaedic surgeon. The requested information was later received and was forwarded to the interested parties for comment. On February 16, 2011, the panel met further to discuss the case and rendered its final decision.

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 that 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 attended the hearing with a union representative who asked the worker questions regarding the accident and made a presentation on the worker's behalf. The panel and employer representative also asked questions of the worker.

In response to questions, the worker described the accident. He said he was unloading a trailer by himself and while setting up the rollers used to move the contents, he injured himself. He explained that he was pushing down on a roller when his hand fell through.

He described the injury as "Like my whole wrist, it just tweaked it at first and then I got like a shooting pain. Then it went away, so then I continued -- I put the roller back on and I continued this unloading a bit more."

Regarding the worker's reporting of the incident to his employer, he acknowledged that he did not do so until his next shift. When asked why he did not report the accident to the employer immediately, he replied "Because it just didn't seem like it was that bad at the time."

He advised that by Monday morning he realized that he would not be able to work as he could not move the arm at all. He then went to a walk-in clinic on Monday and brought a report in to work on Tuesday, February 16, which was his first scheduled work day after the incident.

The worker's representative submitted that the worker had a workplace accident on February 12 and that there is no evidence that contests that this took place. He noted that the worker recently had an MRI which shows some tears in the worker's wrist. Noting that the worker was pain-free prior to the accident, he submitted that the tears could only have happened when his hand fell through the roller at work.

Employer's Position

The employer was represented by an advocate. The employer representative noted that the worker did not report the accident to the employer on the date the accident happened. He also noted that the neither of the co-workers who were working with the worker could confirm a report of an accident on that date. As well, the first medical report has no reference to a specific incident on February 12, with the only reference being to heavy lifting and a flared ganglion. Later, the worker saw a second physician on February 17 and again there was no reference to a specific incident. The representative submitted that "…what we have here is a report of an incident up to three or four days after it allegedly occurred, with no significant or substantial proof that the accident actually occurred."

The employer representative acknowledged that the worker's report to the employer on February 16, 2010 has been consistent throughout the claim.

The employer representative submitted that the decision of the Review Office be confirmed as there has been no new evidence to suggest that the decision is incorrect and there is no proof that an accident arose out of or occurred within the course of the employment on February 12, 2010.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find that the worker was injured at work on February 12, 2010. The panel, on a balance of probabilities, finds that the worker did sustain an injury at work on February 12, 2010, and more specifically finds that the worker sustained a sprain/strain injury to his right wrist.

In reaching this decision, the panel has accepted the worker's evidence regarding the accidental injury that resulted when he was connecting rollers. The panel has also accepted the worker's explanation regarding the short delay in reporting to the employer.

Although the worker did not advise the employer on the day of the incident, February 12, he did advise the employer on February 16, his next scheduled day of work. The panel notes that the description of the accident provided to the employer is consistent with the description provided to the WCB and to the orthopedic specialist that he saw on February 24, 2010. The panel also notes that the worker promptly sought medical attention on February 15 and February 17.

Regarding the nature of the injury sustained on February 12, the panel finds, on a balance of probabilities, that a strain/sprain injury resulted from the circumstances described by the worker. The panel notes the diagnosis of the orthopedic specialist contained in a report of February 24, 2010. The orthopedic specialist commented that "The patient however also has pain moving his wrist; some discomfort. It is my impression the patient does not have a fracture. The patient, I do note, most likely sustained a sprain and contusion of his wrist." The panel also notes that the physician who examined the worker on February 17 diagnosed a sprain injury as did the physician who examined the worker on February 15.

At the hearing, the worker's representative submitted that the tear noted on the MRI was a result of the February 12 accident. The panel notes that the surgery report of the treating orthopedic specialist does not confirm the existence of tears. The panel is unable to make the finding requested by the worker's representative. The panel finds that only a sprain/strain injury occurred.

The panel has considered the December 22, 2010 report of the treating orthopedic specialist. In this report the specialist notes that the worker had evidence of three conditions, (a) recurrent volar wrist ganglion, (b) branch of superficial radial nerve chronic laceration, and (c) chronic synovitis and inflammation, right wrist.

The specialist opines that the workplace injury is not the cause of the branch of superficial radial nerve chronic laceration. The panel accepts this opinion. With respect to the specialist's comments regarding the ganglion, the panel finds that the ganglion is not related to the February 12, 2010 workplace injury. The evidence is clear that the ganglion was present prior to February 12, 2010. As well, the panel finds that the chronic synovitis and inflammation of the right wrist are not the result of the specific incident that occurred on February 12, 2010.

The panel refers the issue of specific entitlements, including; duration, wage loss, and medical benefits to the WCB to adjudicate.

The worker's appeal is allowed, in respect of his claim for a right wrist strain/sprain injury.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of March, 2011

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