Decision #129/11 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which denied her claim for compensation related to a right elbow injury which she submitted occurred in the workplace on August 25, 2010. A hearing was held on August 29, 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 for a right elbow injury that occurred at work on August 25, 2010. The worker described the accident as follows to a claims information representative:
I had helped a patient move in her motorized wheelchair from the living room to the bedroom. There is a Hoyer lift to take her from the wheelchair to the bed, which was used. As I was repositioning her in the bed, I could feel pain in my right elbow. It felt like an electrical shock and was very painful.
The worker advised the WCB that she did not think her elbow injury was serious, and she thought it would go away but the pain became too much and she sought medical treatment on September 9, 2010. She reported the injury to her employer on September 13, 2010.
The worker also filed a WCB claim for a right foot injury that occurred at work on August 25, 2010, the same day as the right elbow injury. The worker advised the WCB that she was helping a patient who was in a motorized wheelchair go from the living room to the bedroom. She was in front of the patient and was pulling on her wheelchair when the wheelchair ran over her right foot.
With regard to the worker's elbow claim, the employer's accident report stated that the worker had to "stretch her right arm to push the client to one side to change her brief and then has to pull her again to the other side." This was the second injury that occurred to the worker on August 25, 2010. The injury was reported to the employer on September 18, 2010.
A medical report dated September 9, 2010 noted that the worker attended for treatment related to an injury to her right elbow and a reassessment of her right foot. It was indicated on the report that the worker noted pain and swelling in her right elbow about two weeks ago after pushing a heavy resident. The same day, her right foot was run over by an electric wheelchair, and she had ongoing pain on the top foot into the toes/ankle. Treatment consisted of a right foot x-ray and cream for the right elbow.
On October 4, 2010, the worker provided the WCB with the following information:
- She mentioned her elbow condition to her family physician on September 1. He told her if it did not improve, she should follow up with him in one week.
- She tried to keep working and self treat her elbow with ice and heat. Even when she had a lot of pain, she kept working because she had financial obligations.
On October 15, 2010, the WCB adjudicator spoke with the worker's co-worker. The co-worker indicated that she was not aware of the worker's arm difficulties. She recalled the worker telling her that someone drove over her foot and recalled that the worker had been limping.
The adjudicator spoke with the worker's supervisor on October 15, 2010. The supervisor recalled hearing about the worker's arm problems at a meeting on October 4, 2010 when the worker produced a physician's note.
On October 15, 2010, the worker's treating chiropractor outlined the following description of accident: "She had a motorized wheelchair run over right foot. As a result she was limping and could not fully weight bear. States she was pulling to move her client who was still-weight and at time could not stand properly. She pulled on the patient and felt a sharp pain to the right elbow." The diagnosis outlined by the chiropractor was right lateral epicondylitis.
In a decision dated October 15, 2010, the worker was advised that based on a delay in reporting the injury to the employer and a delay in seeking medical treatment, the WCB was unable to establish that her right elbow injury occurred at work. The decision stated that the worker sought medical treatment on August 31, 2010 for an unrelated problem and that she asserted that she mentioned her elbow difficulties at that time. However, the August 31, 2010 report indicated that the worker was not seen for right elbow problems. On December 23, 2010, the decision was appealed by a worker advisor, acting on the worker's behalf.
On January 20, 2011, Review Office upheld the adjudicator's decision that the worker's claim for compensation was not acceptable. Review Office noted that the worker told a co-worker about her foot injury and saw a doctor for her foot on August 31, 2010. There was no indication that the worker mentioned her elbow problems to either the co-worker or the physician she attended on August 31, 2010. It was difficult to understand how or why the worker would inform these individuals of one injury but not the other. The worker also did not report her elbow injury to her employer as soon as was practical, as required under subsection 17(1) of The Workers Compensation Act (the "Act"). Review Office believed that the evidence did not support the occurrence of an at-work right elbow injury on August 25, 2010. On February 9, 2011, the worker advisor appealed the decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
This appeal 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 WCB, and state that the worker must have suffered an 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 her behalf. The worker answered questions posed by her representative and the panel.
The worker's representative submitted that this claim satisfies the definition of an “accident” under subsection 1(1), being an event arising out of and in the course of employment and as a result of which a worker is injured. She stated that subsection 4(1) is also satisfied as the medical evidence supports the worker's personal injury of right lateral epicondylitis strain, arose out of her employment when she was attending to a client on August 25, 2010.
The worker advisor said that although there was a delay in reporting to the employer, the evidence does support, on a balance of probabilities, that the worker's right elbow injury did result from her employment, therefore, this claim ought to be allowed.
The worker advisor submitted that:
In this case the description of the accident has been consistent in the reporting to the Workers Compensation Board, to the employer and to the healthcare provider that she injured her right elbow due to pushing and pulling a client on August 25, 2010.
The worker was asked to explain what she felt in her right elbow or arm, what kind of pain it was and where she could feel it. The worker explained that it felt at that time like electric shock. The intense pain did not continue and so she thought it would disappear. Unfortunately, as time passed the pain reappeared and worsened.
The worker said she did report the arm injury to her physician but that he was busy dealing with her foot, arranging for exam and did not write the information down.
Regarding medical evidence, the worker advisor referred to the report from a physician dated September 9, 2010 which confirms the worker reported the injury as occurring at work two weeks earlier, records that the worker has a tender lateral epicondyle and confirmed a diagnosis of right elbow second degree strain.
The worker explained that the injury to her right elbow occurred after the injury to her foot. She said that she had moved the patient from her wheelchair to her bed so she could change her. She described pulling and pushing actions to get the patient on the bed and to remove her pants.
Employer's Position
The employer was represented by an advocate who mailed a written submission dated August 18, 2011.
The written submission stated that it is the employer's position that there is no evidence of an injury arising out of and in the course of employment. It noted that:
- The worker reported an injury to her right foot to her supervisor but did not mention the injury to her right elbow.
- The worker told a co-worker about the foot injury but did not mention the right elbow injury.
- A physician reported that he saw the worker on August 31, 2010 exclusively for her foot injury.
- The worker reported both injuries to the WCB on September 23, 2010 but did not report the right elbow injury to her employer.
The submission stated that it was difficult to understand why the worker reported only one injury to the employer. It noted that if the worker did have a second injury at work it makes no sense that she didn't report it to her supervisor, to the co-worker or to the doctor on a timely basis.
The submission asked that the appeal panel deny the worker's claim.
Analysis
The worker is appealing the WCB decision that her claim for a right arm injury is not acceptable. For the worker's appeal to be accepted, the panel must find that the worker sustained an injury to her right arm while performing her work duties on August 25, 2010. The panel was able to make this finding.
In reaching this conclusion the panel accepts the worker's evidence regarding the occurrence of the injury and the mechanism of injury. The panel found the worker to be forthright in her responses to questions and that her evidence was consistent with the information on the claim file.
The panel accepts the worker's evidence that the injury occurred while she was moving and changing a large patient with the use of a mechanized lift. The worker described the activity as involving significant pushing and pulling actions with her arms. The panel finds this type of activity to be capable of causing the diagnosed condition and that the duties described by the worker are conducive to the development of the diagnosed condition.
The worker indicated that while performing these duties she felt an "electric shock" feeling in her right forearm. She advised that the condition worsened over time. The panel finds this progressive development of symptoms is consistent with the diagnosed injury. The panel finds that the injury occurred on August 25, 2010 and became clinically significant over the next two weeks to the extent that it was diagnosed by a physician at a sports injury clinic on September 9, 2010.
Regarding the worker's delay in reporting the right arm injury, the panel accepts the worker's explanation that she did not report it immediately because she thought it would get better but in fact, over time, the condition worsened. We also accept the worker's evidence that the foot injury initially hurt more and was the focus of her concern.
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 15th day of September, 2011