Decision #120/12 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed that the worker's claim for compensation was acceptable as an accident arising out of and in the course of his employment. A hearing was held on September 13, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On March 12, 2012, the worker filed a claim with the WCB for a left shoulder injury that occurred at work on December 15, 2011. The Worker Incident Report stated:

On the previous Thursday (December 15) my shoulder started to bother me, so I filled out incident report and spoke to [supervisor]. Told him my shoulder was sore and starting to ache and asked for a smaller order as it was near shift end.

December 18 I was picking an order in the freezer. I was ¾ of the way into my order, it was about a 260 case order. My pallet was already over my head. When I went to put a case of food onto the pallet and it was the 3rd or 4th case and my left shoulder gave out and my box hit the floor and I could feel burning and tingling in my left shoulder and couldn't put my arm over head any more. So went to [supervisor] and told him about my shoulder and I was going to have to get it checked out. Filled out another incident report and went to [hospital].

The employer's accident report dated December 21, 2011 indicated that the worker injured his left shoulder on December 15, 2011 based on the following accident description:

picking box, turned to place on pallet, lost strength in shoulder and dropped box on pallet. Loss of strength and tingling progressed through shift.

On December 30, 2011, an employer representative advised the WCB that he had some concerns with the claim. He noted that the worker asked his supervisor on December 8, 2011 if he had employee benefits coverage for athletic therapy. They were not sure what body part or area the worker was enquiring about but he was told that his employee benefits package did not cover athletic therapy. A compensation claim was then filed by the worker. The employer representative also noted that on the incident report provided by the worker, the worker related his left shoulder difficulties to repetitive work duties. He also mentioned that he lost strength in his arm while taking down boxes but did not report a specific incident or event at work to account for the symptoms he experienced.

On January 6, 2012, the worker spoke with his WCB case manager by telephone and the following information was obtained:

  • his left shoulder difficulties or soreness began about a month prior to reporting to the WCB. His workload increased about mid November due to the busy season.
  • his job as a selector for a distribution center involved working in a freezer. He gets the order form and drives a forklift through the warehouse grabbing various frozen cases of items. A case can weigh from a half pound to over 20 pounds. The worker individually grabs each case and places it on a pallet to be placed on a trailer for delivery.
  • the worker is right-hand dominant.
  • the worker said he spoke to two supervisors about the onset of his left shoulder difficulties in early December. He asked if the company benefits package included physiotherapy or athletic therapy. The worker said he sought physiotherapy treatment in 2008 and benefited from it.
  • he continued to work his regular work duties with complaints.
  • from 2008 to date his left shoulder bothered him off and on but he continued to work his regular work duties and did not require medical attention.
  • on December 15, 2011, his left shoulder was a bit sorer after completing his shift. He mentioned his difficulties to a supervisor. He did not seek medical attention since he thought his shoulder would improve on his days off.
  • he returned to work on December 18, 2011. About 45 minutes into his shift while lifting a box weighing about 60 pounds over his head level to place on the pallet, his left shoulder gave out. He dropped the box and began to experience tingling sensations but completed his shift.
  • the worker sought treatment at a hospital emergency centre and missed time from work on December 19, 2011 as he was at the hospital for an extended period of time.
  • he returned to work on December 20, 2011 on modified duties. His symptoms had improved since he returned to work on light duties.
  • the worker said he has constant discomfort along the front of his left shoulder (medial deltoid area) almost down to his left elbow. When he raises his left arm above head level, he feels a snapping sensation/cracking-like sound across the bone in the left arm between the shoulder and elbow.

On January 11, 2012, the worker's supervisor advised the WCB case manager that he was aware of the worker's prior left shoulder difficulties. Around December 1, 2011, the worker requested information on company benefits regarding athletic therapy. The worker told him that his left shoulder was bothering him and he related his current difficulties to his current work duties. The worker was asked if it was the same shoulder that he injured two years ago and the worker replied yes. The worker worked his regular work duties without complaint from 2008 to 2011. He confirmed that the worker accepted overtime shifts from November 14, 2011 on during the busy Christmas season.

By letter dated January 12, 2012, the employer was advised by the WCB case manager that the worker's claim for compensation was accepted as a relationship had been established between the his left shoulder injury and an "accident arising out of and in the course of" his employment. The case manager noted in her decision that the accident reports submitted by the worker and the employer showed that the worker was operating within his normal job duties at the time of the incident. The worker's mechanism of injury was confirmed during the investigation of the claim and the medical information provided a diagnosis that was consistent with the worker's mechanism of injury.

On January 26, 2012, the employer's representative appealed the above decision to Review Office. The employer provided rationale to support their position that the worker's left shoulder difficulties were not due to a work-related accident and that the worker only filed a compensation claim as he was told that he did not have benefit coverage for athletic therapy.

On March 21, 2012, Review Office determined that the worker suffered an accident on December 15, 2011 as defined in The Workers Compensation Act (the "Act"). Weight was placed to the following factors in reaching its decision:

  • the worker reported his left shoulder was bothering him on December 15, 2011 while in the course of his regular duties.
  • on his next shift, the worker reported a specific incident where his left shoulder gave out while picking up a box causing burning and tingling in his left shoulder.
  • the worker left work on December 18, 2011 to attend medical treatment. When seen at the hospital the worker reported left shoulder pain related to an injury at work.
  • the mechanism of picking a box is consistent with the diagnosis of a partial thickness tear of the rotator cuff.

On March 23, 2012, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing was held on September 13, 2012.

On September 14, 2012, the Appeal Commission provided the worker's union representative with an opportunity to submit comments relative to an August 26, 2009 Mobile Assessment Centre report that was submitted at the hearing. A response from the union representative was later received dated September 17, 2012 and was provided to the appeal panel. On September 20, 2012, the panel met further to discuss the case and rendered its decision.

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.

The employer’s position:

Two representatives appeared on behalf of the employer at the hearing. It was submitted that the employer had facilities across Canada and the United States and that whenever there was a claim or incident at one of their facilities, it was their goal to determine the root cause so that they could prevent it from occurring again. With respect to this worker's claim, the employer felt that with the evidence that they had collected to date, there were many inaccuracies such that they were unable to determine the root cause. The employer was particularly concerned with the fact that prior to the injury, the worker had made a request to his supervisor with regard to benefits and what types were provided by the company. The employer noted that there was some indication of continuous pain previous to the workplace injury, as well as reports of a 2008 claim to the same area of the body. Several of the medical reports spoke more about the worker's reports of pain rather than actual findings. Finally, the employer raised credibility issues and noted multiple inaccuracies in various matters reported by the worker to the WCB. Reference was also made to a surveillance video which recorded inappropriate behaviour on the part of the worker (roughhousing at work) at a later date while participating in a graduated return to work program. The employer felt that it had been accommodating since day one and was feeling frustrated by the fact that the horseplay incident would suggest that the worker did not have the injury for which he was being supported. This combined with the inaccuracies in the worker's story led the employer to question whether there was an injury at all.

The worker’s position:

The worker attended the hearing accompanied by a union advocate. It was submitted that although the employer had provided a lot of information, much of it was not germane to whether or not the claim was acceptable. Credibility on the important points was not at issue. The worker followed all of the right protocols by reporting the injury to his supervisor and seeking medical attention when necessary. The mechanism of injury was consistent with the worker's diagnosis. He had soreness developing over a period of a few weeks and then suffered a traumatic accident where it is likely that the tear in the labrum occurred. It was submitted that the steps taken were clear, the evidence was corroborated, the medical evidence was clear and the mechanism of injury was consistent with the diagnosis. In the circumstances, there was no doubt about the claim and the WCB could do nothing else than to accept the claim when faced with that evidence.

Analysis:

The 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 a shoulder injury by accident arising out of and in the course of his employment in December, 2011. On a balance of probabilities, we are not able to make that finding.

While the panel acknowledges that there were no direct eyewitnesses to the accident and that there may be some slight anomalies in the evidence, these points are far from sufficient to convince us on a balance of probabilities to set aside the evidence that an incident causing injury to the worker did take place on December 18, 2011. Instead, the panel is persuaded by the following evidence:

  • The mechanism of injury of stacking a 60 pound box on a pallet above shoulder height is entirely consistent with sustaining a left shoulder injury.
  • The employer acknowledged that the job duties did involve body mechanics as described by the worker (ie. handling boxes weighing over 60 pounds, temperatures below -17 degrees Celsius, lifting boxes to and from heights above shoulder level, and pushing boxes with arms above shoulder height).
  • The worker promptly reported the injury to his supervisor on December 18, 2011. There is also the issue of the reporting of an injury on December 15, 2011, but the panel accepts that the worker was only reporting his deteriorating shoulder condition at that time. After the acute incident on December 18, 2011, there was a full-blown injury for which the worker required medical treatment.
  • The worker promptly sought medical attention and was seen by an emergency room doctor. The Emergency Report Form at the hospital notes a history of the left shoulder injury "at work."
  • Notes from a telephone conversation between the WCB adjudicator and the worker's supervisor confirmed that the worker told his supervisor as early as December 1, 2011 that his left shoulder was bothering him and that he related his current difficulties to his current work duties.

Overall, it would appear that all of the usual indicators of an accident are present. While the fact that the worker made inquiries about benefit coverage just prior to the accident may be viewed as suspicious, it may also just as reasonably be viewed as a mere coincidence. The inquiries would also be consistent with a progressively deteriorating shoulder condition, which was significantly exacerbated by the incident on December 18. What is not disputed, however, are the facts that: a) the worker reported for work on December 18, 2011 willing and able to work; b) that he did perform his regular job duties for approximately 45 minutes; and c) that during the course of his shift, he became unable to continue working due to a left shoulder injury and that he sought immediate medical attention for this injury. This evidence is sufficient to satisfy us on a balance of probabilities that the worker suffered an injury while working for the employer on December 18, 2011. His claim is therefore acceptable and the employer’s appeal 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 8th day of November, 2012

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