The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's claim for compensation met the definition of an accident and that the worker was entitled to wage loss benefits for January 5 and January 6, 2012. A file review was held at the Appeal Commission on August 8, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits for January 5 and 6, 2012.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits for January 5 and 6, 2012.

Decision: Unanimous

Background

On January 24, 2012, the worker filed a claim with the WCB for injury to her right hand and forearm that she related to her work activities on January 2, 2012. The worker described the accident as follows:

I was scooping fudge oat bars out of a box that comes down the conveyor belt and putting it into a smaller box. I did this for two hours. My wrist started hurting while scooping. I didn't think much of it. Usually a couple of hours later it is gone. I kept working hoping that it would go away. The following day my hand was swollen….the fudge is cut in four and you have to scoop one of the four out and put in a smaller box.

The worker indicated that she reported the injury to her employer on January 4, 2012 and that she told some of the girls on the line that her hand was sore.

The employer's accident report dated January 13, 2012 stated the following:

• there was no workplace incident that caused the worker's hand to hurt.
• the worker had been working for only two hours and it happened after the weekend, so it cannot be an ergonomic issue.
• the worker did not show up for the Friday shift because she had already submitted a note requesting to leave early on Friday but she did not show up at all.
• on the doctor's note, the first thing that the doctor decided was the worker was able to return the next day… but the worker must have said something to the doctor to erase his/her original decision and change the return to work date.
• the worker is on the safety committee and she should know that she has to report any incident on the day it happened and not the next day or two.
• the worker is aware that the employer has a return to work program in place, yet she did not pick up the phone when they tried to contact her and she even unplugged her answering machine.

On February 1, 2012, the worker advised a WCB adjudicator that she was scooping fudge oat bars for about two hours on January 2, 2012 when she started to feel a sharp pain in her wrist every time she bent her hand or tried to grip. This was the second time that she performed this particular job duty. The worker described the job to the adjudicator as "Boxes of cake move down a conveyor. There are four people scooping and they each scoop four pieces, one at a time, from each box and put them into smaller boxes." The worker said she used a large spatula about 8 inches wide by 8 inches long and weighing about 3 pounds to scoop out four pieces. In two hours the worker filled 60 boxes herself. The worker noted that she felt similar symptoms in her wrist the one time she did the scooping job in the past and that it resolved within a few hours. The worker said she continued to perform her regular job duties for the remainder of January 2 and that her hand was still sore but she tried to use her left hand more. On January 3 and January 4, she worked full time hours at her regular duties which involved packing cupcakes. She was able to perform these duties as they were not as physically demanding as scooping but she still had discomfort. The worker said she reported her wrist difficulties to the production supervisor on January 5, 2012 as her symptoms had not resolved and she was asked to complete a green card.

A doctor's first report showed that the worker attended for treatment on January 5, 2012 and was reported to have visible swelling of the wrist. The diagnosis rendered was a right wrist strain and right pointer finger tendonitis. In a Return to Work certificate signed dated January 5, 2012, the physician stated that the worker was to rest and elevate her arm and to return to light duties for four weeks.

On February 7, 2012, the WCB adjudicator spoke with the worker's plant manager who confirmed the worker's job duties. He clarified that the cakes are cut into 24 pieces and workers remove six pieces each with the spatulas. About 8 to 9 cakes are done per minute. The spatulas used by the workers are stainless steel and a bit bigger and heavier than a household spatula.

The WCB adjudicator spoke with the worker's production supervisor on February 7, 2012. She stated that the worker reported wrist difficulties to her on January 5 and said it happened on January 2. The worker was asked why she did not report right away and the worker replied that she had 48 hours to do so. She asked the worker about the notice of incident and told her that it had to be completed. She asked the worker if she was okay or if she needed to do another job and advised that they had light duties. The worker replied that she was okay. Later in the day, the worker left a note on her desk asking to leave early on January 6 to seek medical attention.

The claim for compensation was accepted by the WCB based on the diagnosis of a right wrist sprain and benefits were paid to the worker.

On March 1, 2012, the employer appealed the WCB's decision to accept the worker's claim as it was their position that the worker's claimed injury did not arise out of and in the course of her employment. The employer indicated that no incident was reported or witnessed that would have caused the worker's claimed injury. The employer also expressed the view that the worker should not be entitled to wage loss benefits based on WCB Policy 44.40.10 as there was no objective evidence that the worker was completely disabled or was unable to perform alternative light duties.

On April 11, 2012, Review Office determined that the worker's claim for compensation was acceptable and that there was entitlement to wage loss benefits for January 5 and 6, 2012. With regard to the acceptance of the claim, Review Office noted that the worker reported on January 2, 2012 that it was the second time that she performed the duties of scooping fudge oat bars out of a box that came down a conveyor belt. She performed this task for two hours and her right wrist started to hurt while doing so. The worker stated that her symptoms continued while she performed other duties on January 3 and 4, 2012. The worker then reported the injury to the employer on January 5, 2012. Review Office stated that this information met the definition of accident under subsection 1(1)(b)(ii) of The Workers Compensation Act (the "Act"). Review Office felt that the diagnosis made by the treating physician on January 5, 2012 was the injury sustained as a result of the workplace activities performed on January 2, 2012. Review Office accepted that the worker did not report her injury to her employer right away as she had hoped it would get better on its own. When it did not, the worker reported the injury to the employer within the time frame allowed under section 17(1) of the Act.

Review Office further determined that the worker was entitled to benefits for January 5 and 6, 2012. Review Office indicated that the treating physician acknowledged on January 5, 2012 that the employer had offered modified duties but he determined that the worker was unfit to perform any duties until January 9, 2012. It was therefore reasonable for the worker to abide by her physician's instructions and to remain off work. Review Office therefore found that the worker had a loss of earning capacity for the time missed from work on January 5 and 6, 2012. On May 11, 2012, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

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. 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.

Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.

The employer’s position:

The employer's position was that the worker's claim should not have been accepted for wage loss benefits. As there was no traumatic incident, the worker's claim was accepted for cumulative trauma disorder. It was submitted that it was hard to believe that the worker would have developed a cumulative trauma disorder after working for just two hours on the first day back after the plant shut-down to celebrate the new year. The employer suggested that the possible cause of the worker's onset pain and discomfort was an unaccustomed duty. It was further submitted that there was no objective evidence to support that the worker was totally disabled from work and unable to perform the light duties offered by the employer. As such, the employer maintained that the worker's claim should not have been accepted.

The worker’s position:

The worker provided a written submission which outlined further detail about what occurred on January 5, 2012 when she reported the injury and sought medical attention. The worker submitted that she went to see a doctor at a walk-in clinic that day like she was instructed to do by her employer and gave the doctor the employer's forms to fill out. The doctor told her to stay at home and so she did. The worker questioned why the employer would have sent her to see a doctor if they were not going to listen to what he had to say.

With respect to the job duties which caused the injury, the worker noted that the product she was scooping was a "fudge" oat bar, which was heavier to scoop.

Analysis:

There are two issues before the panel. We will address each issue separately.

Claim acceptability

The first issue before the panel is whether or not the claim is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker did not suffer injury by accident arising out of and in the course of her employment on January 2, 2012. On a balance of probabilities, we are not able to make that finding.

After reviewing the information contained on the WCB file and after considering the submissions of the parties, the panel is satisfied on a balance of probabilities that the worker did suffer an injury to her right arm while performing her job duties on January 2, 2012. In coming to our conclusion, the panel placed reliance on the following:

• The mechanism of injury of scooping fudge oat bar with a spatula on a repetitive basis for two hours is consistent with suffering a right wrist strain;
• Scooping bars was not part of the worker's regular job duties and January 2, 2012 was only the second time she had ever done this particular job;
• On January 5, 2012, within three days of the date of the accident, the worker saw a physician for medical treatment of the right wrist and right pointer finger;
• The physician noted objective findings of visible swelling and significant tenderness;
• Although the worker did work her full regular hours for the next two intervening days (January 3 and 4, 2012), the evidence on file indicates that she did not continue to perform the scooping duties on those days. Instead, she performed her regular duties of packing cupcakes, which the worker advised was much less physically demanding on her right arm. The panel accepts that the worker would have been able to carry out these duties on January 3 and 4 despite the injury to her right wrist.

The panel therefore finds there is sufficient evidence to satisfy us on a balance of probabilities that the worker suffered an injury while working for the employer on January 2, 2012. Her claim is acceptable and the employer’s appeal on the first issue is dismissed.

Entitlement to Wage Loss Benefits

The second issue is whether or not the worker is entitled to wage loss benefits for January 5 and 6, 2012. In order for the employer's appeal to succeed, we must find that on those dates, the worker had no loss of earning capacity as a result of her compensable right wrist injury. On a balance of probabilities, we are unable to make that finding.

The employer submits that it had light duties available for the worker and that there was no objective evidence to support that the worker was totally disabled from work on those two days in January. It was noted that on the Employer's Return to Work Capability Form, the physician did not mark the section stating that the worker was completely disabled from any type of activity.

On reviewing the Return to Work Capability Form, the panel notes that the physician indicated that the worker would be able to return to modified or alternate duties on January 9. This is consistent with a Fitness Memo dated January 5, 2012, also completed by the physician, which stated that the worker could return to work on January 9, 2012, and recommended "rest, elevation till (sic) 9^th."

January 9, 2012 was a Monday. The days at issue in this appeal are January 5 and 6, 2012, which were a Thursday and Friday. January 7 and 8 were on the weekend which were the worker's regular days off.

In the panel's opinion, it was reasonable for the worker to remain off work completely for the balance of the week on the advice of her physician. The worker had already worked for two days at different, less demanding duties and found that her right wrist condition was not getting any better. The physician's authorization to remain off work until January 9, 2012 to rest and elevate her arm is sufficient to satisfy the panel that the worker had no earning capacity on January 5 and 6, 2012, despite the availability of light duties from the employer. It was reasonable for the worker to remain at home to rest her arm for a few days before returning to the workplace.

For the foregoing reasons, the panel finds that the worker is entitled to wage loss benefits for January 5 and 6, 2012. The employer's appeal on the second issue is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of September, 2012