The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

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.

This appeal deals with claims acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s right elbow injury arose out of and in the course of his employment.

Worker's Position

The worker was self-represented. He advised that:

"in mid-June I went to start the gas weed eater and it wouldn’t work and I’m not a handy guy and I thought because it had been working before, like the week before, that the harder I would pull on it, it would eventually help the motor and it would kick-start it and off I’d go; and I’d been pulling that many times, getting harder and harder, thinking okay, this time it’ll finally go and it wouldn’t go. I’d get frustrated, I’d put it to the side and I’d try it again in the afternoon to get it going, it didn’t work…so I had tried again in the afternoon. I as well had tried the following day…then I ended up not cutting it…during that process I felt my arm was a little bit stiff and I didn’t think much of it because I knew I was pulling quite hard on, on the mower or on the trimmer and I finished the rest of my, the rest of my day working, didn’t change anything, just had noticed it was a little bit stiff, nothing out of the ordinary from my point of view in terms of, in terms of any kind of real pain. It was just stiff…

So there was no major discomfort there, just that I had obviously used a muscle in my arm that normally doesn’t get used to that degree in doing that. And then as the days went on I still felt the stiffness in my arm…"

The worker said that he started the ice and heat within a week of the injury, after what he thought was a normal period of stiffness based on his experience with stiffness after participating in a sporting activity.

In answer to a question about the frequency of using heat and ice, he replied that he tried to be regular and do it every single day but didn’t do it every single day. He tended to just do it when it started hurting and throbbing.

The worker explained that he was able to continue working by modifying how he performed his duties. He said he is seeking approval and payment for physiotherapy treatments.

Employer's Position

The employer was represented by its treasurer. The representative confirmed the facts provided by the worker relating to the worker's duties and the employer's facilities.

Analysis

The issue before the panel is whether the worker’s claim is acceptable or in other words, whether the worker's elbow injury arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the worker's elbow injury was caused by his job duties on June 15, 2012. The panel was able to make this finding.

In reaching this decision, the panel found the worker to be very credible and accepts his evidence regarding the injury.

The panel finds that the mechanism of injury reported by the worker to be sufficient to cause injury to the worker's elbow area. The panel notes the worker's evidence that he attempted to start the gas powered tool many times in the morning and again in the afternoon. He also attempted to start it the next day. The panel finds that the continuous forceful pulling of the starter cord caused the injury.

The WCB case manager and Review Office were concerned about the onset of symptoms, the worker's delay in reporting the injury to the WCB, and the delay in seeking medical treatment. The panel finds that the evidence adequately addresses these concerns.

With respect to the onset of symptoms, the worker advised that he noticed mild stiffness on the day of the injury. This stiffness continued but he thought it would resolve. After several days his wife, a nurse, suggested that he might have tennis elbow and recommended that he use heat and ice on the elbow. He also researched the condition on-line. He continued to use heat and ice when the elbow pain worsened. The panel finds that the symptoms were evident soon after the accident and worsened over a couple days and did not abate over time. The panel finds that the injury developed directly from the accident and not 15 weeks later as found by Review Office.

With respect to seeking medical attention, the worker contacted his physician's office in June but was informed that the office was closed for the summer. He contacted the physician's office again in the fall and eventually saw the physician. In the interim he continued to use heat and ice. He also continued to work but avoided activities involving his right arm. He did not use the gas powered tool again.

Regarding the delay in reporting to the WCB, the worker explained that he expected the stiffness to disappear and for the arm to improve. As he did not miss time from work and continued his duties with some modifications, he did not think about the WCB and the need to report. He acknowledges that he should have reported sooner. The panel notes that the worker did advise the employer's representative shortly after the incident, well within the required reporting period.

The worker's appeal is allowed.