The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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, subject to the following subsections. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s claim for pain in her neck and right upper extremity arose out of and in the course of her employment.

The worker’s position:

The worker appeared at the hearing assisted by a worker advisor. The worker's position was that there was no significant delay in reporting the accident to the employer, and that the worker did report the accident well within the legislative requirements of 30 days, as set out under subsection 17(1) of the Act. It was submitted that the explanation that the worker delayed in reporting because she did not want to go on workers compensation benefits was a reasonable one. It was also reasonable for the worker to delay in seeking medical attention because she thought the pain would go away. It was only when her symptoms were not improving that she reported her accident to the employer. This all occurred within a reasonable time frame. The evidence supported on a balance of probabilities that the worker suffered a personal injury by accident arising out of and while in the course of employment, and it was submitted that the claim should be accepted.

The employer’s position:

An advocate appeared on behalf of the employer at the hearing. The employer agreed with the WCB decision that the claim was not acceptable. It was submitted that the worker was well versed in injury reporting procedures, yet she failed to report the incident on a timely basis to her employer, to her doctor or to the WCB. It was questioned why the worker made no complaints to coworkers and continued to work the remainder of her shift for another four hours on April 21. After five days off, she returned to work for two 12 hour shifts, still with no reports of difficulties to her manager or complaints to coworkers. On April 28, she called in sick. After three days off work, she worked another 12 hour shift on May 1, then called in sick again on May 2. The employer advocate questioned why the worker did not report the injury at least by April 28 when she called in sick. If she really had suffered a work related injury, why not report it, save her sick time, and have physiotherapy paid for by WCB. It was submitted that the answer must be that there was no compensable incident that occurred at work.

Analysis:

The issue before the panel is whether the worker's claim for injury to her neck and right upper extremity is acceptable. For the worker’s appeal to succeed, the panel must find on a balance of probabilities that the worker’s difficulties in those areas which resulted in her having to miss time from work in April, May and June 2010 were caused by an incident on April 21, 2010 when she was assisting a heavy patient in the x-ray department. Based on the evidence before us, we are able to make that finding.

In coming to our decision, the panel relied upon the following:

• The mechanism of injury of lifting/pulling a large patient (approximately 6'5" and over 250 lbs) is consistent with sustaining a cervical/thoracic soft tissue strain;
• After five regular days off, the worker reported for work and completed two twelve hour shifts. The worker's evidence was that the workloads during those two days were light so she was able to finish both of her shifts. The panel accepts that if the shifts were light and she was not required to do much in the way of heavy lifting, the worker would be capable of tolerating the continuing aching pain she says she felt in her right upper extremity;
• The worker has consistently identified a specific event at work as being the cause of the onset of her pain. The first reports from both the attending physician and the physiotherapist relate a history of injury when assisting a patient at work. Both of these reports pre-date the WCB adjudicative decision to deny acceptance of the worker's claim, thus bolstering the credibility of the information;
• The worker was also able to refer to the x-ray department records to identify the specific time of the incident as occurring at 3:17 a.m.;
• The worker's evidence was that she often experienced pain in her neck and shoulder area and that she thought the pain would resolve on its own. It was only after she failed to get relief from massage therapy that she recognized that the condition was more serious and she reported the incident to her employer while she was at work on May 1, 2010 when the continuing pain was affecting her ability to do her job.

At the hearing, the panel questioned the worker about why she did not file a WCB claim earlier and chose instead to use up her last day of accumulated sick time. The worker’s response was that she just did not want to file claim with WCB and that she felt it would be embarrassing to do so. The panel was somewhat puzzled at the logic of this response, particularly given that her last previous WCB claim was several years prior. Nevertheless, the panel found the worker to be forthright and consistent with her evidence generally, and we therefore accept her explanation.