Decision #72/13 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's right shoulder injury arose out of and in the course of his employment.  A file review was held on May 8, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On October 15, 2012, the worker filed a claim with the WCB for a right shoulder injury that occurred on October 9, 2012. The worker indicated that he and a co-worker were digging a grave 42 inches deep. He was using a spade to dig and while doing so he would periodically hit the side of the walls to make them smooth. At this time he felt shoulder discomfort. He said he did not think anymore about it but the next day his shoulder was worse. They were digging for approximately six and a half hours. The worker indicated that he reported his shoulder injury to the foreman on October 10, 2012.

On October 17, 2012, a WCB adjudicator spoke with the worker and the worker confirmed the accident description that he provided to the WCB on October 15, 2012. The worker noted that he felt a minor irritation in his right wrist/forearm while digging and that it progressed as time went on. He started to experience wrist and forearm pain with physical tasks and the pain moved into his shoulder when carrying and lifting. The pain from the wrist moved up his arm and into the elbow. He had no issues with his shoulder prior to October 9, 2012.

On October 23, 2010, the employer's representative provided the WCB with four witness statements to support that the worker's claim was not a valid one. The representative noted in particular that a foreman interacted with the worker and the worker's co-worker on October 10, 2010 around lunchtime and there was no mention of any injury despite it occurring at 9:00 a.m. He also referred to the statement made by the co-worker who was assisting the worker on October 9 to support that the worker's shoulder injury may was not be work-related:

…When we were first digging [the worker] said his shoulder was sore but he was not sure if it came from working out that morning before work or during the digging the day before (the 9th). I told [the worker] to take it easy if the shoulder was sore and let me do more. After coffee driving back out to dig [the worker] said he was sore so I told him to cover his butt and fill out a green card.

[The worker] said 'I'll be more careful and will think about the green card' but was reluctant to fill it out or tell the foreman etc. in case it didn't happen at work. I did the majority of the digging but there was no injury moment.

The adjudicator spoke with the worker again on October 24, 2012. The worker indicated that he goes to the gym everyday as part of his fitness routine. On October 10, 2012 he had intentions of doing some arm work at the gym but his shoulder was sore so he did not do the arm work. After the gym, he went to work on October 10 with a sore shoulder. He denied any aggravation or a new injury. The worker indicated that he mentioned to a co-worker on October 10 that his shoulder was sore. He thought he could work through his issues and not miss time from work but over several days his shoulder/arm pain got worse. The worker advised that he had to extend his arms and pull the shovel at strange angles when digging and it would cause stress to his right arm/shoulder over time.

On October 24, 2012, the employer was advised that the WCB accepted the worker's claim for a right shoulder injury occurring on October 9, 2012. In making his decision, the adjudicator outlined the view that digging holes at the depth of 42 inches was physically demanding work and it required awkward positions of the shoulder. He noted that the worker's symptoms were reported in a reasonable time frame and that the worker sought prompt medical attention. The medical documents on file were consistent with the injury described by the worker. There was no evidence of any pre-existing condition and the worker did not have any prior claims for right shoulder difficulties. The adjudicator concluded that the facts and information supported that the worker's shoulder injury arose out of and in the course of the workplace.

On October 26, 2012, the employer asked the adjudicator to clarify the inconsistencies between the information provided by the co-worker and that provided by the worker on October 24. In a response dated October 30, 2012, the adjudicator stated:

Worker told me he has no history of any shoulder issues prior to October 9th…

When I discussed his injury and the employer concerns (coworker/foreman statements) with the worker on October 24th, I inquired as to why he feels his symptoms were work related as opposed to his comment of uncertainty to his coworker he indicated:

· That his symptoms did not develop suddenly it was unclear to him at the time that he could develop this type of injury over period of several days (digging on Oct 9th/October 10th).

· Worker also indicated that after discussing his symptoms and his activities at work with his doctor on October 11th that it was advised that these types of injuries can develop.

On November 28, 2012, the employer appealed the acceptance of the claim to Review Office. The representative referred to file evidence to support that the worker did not report his October 9, 2012 injury until October 11, 2012 and the information from the co-worker who did not witness an accident and who commented that the worker was not sure if his shoulder discomfort came from working out or from digging on October 9.

On January 25, 2013, Review Office determined that the worker's claim was acceptable. Review Office placed weight on the following evidence in reaching its decision:

  • Digging and edging a grave was consistent with the medical findings.
  • The worker denied working out or exercising with his arms when he went to the gym on October 10 as they were sore from the workplace accident.
  • The accident was reported by the worker two days after it occurred. Review Office accepted the worker's position that he thought he could work through things and not miss time from work. When the worker realized that he could not, he filed a claim.
  • The worker had no history of right arm/shoulder issues prior to the October 9, 2012 workplace incident.
  • The medical information was consistent with the reported injury.

Review Office indicated that it considered the employer's position but found that the worker did suffer an "accident" as defined in The Workers Compensation Act (the "Act") and that the claim was acceptable. On February 27, 2013, the employer appealed Review Office's decision to the Appeal Commission and a file review 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.

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 is an employer appeal. The employer disagrees with the WCB and Review Office decisions that the worker's claim is acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of his employment.

Employer's Position

The employer was represented by its Workers Compensation Coordinator who provided a written submission, dated April 30, 2013, for consideration by the panel. He also referred to the employer's submission of November 28, 2012.

The representative submitted that "the preponderance of evidence on file, following the balance of probabilities test, would not satisfy" the definition of accident set out in the Act. He noted various inconsistencies in the evidence and suggested that an objective evaluation of the evidence on file would not support the conclusion that the claim is acceptable. He provided medical literature on tendinitis.

The representative noted the co-worker's comment that "when we were first digging (Oct 10th) [worker] said his shoulder was sore but that he was not sure if it came from working out that morning before work or during the digging the day before (9th)." The co-worker also reported that the worker was reluctant to fill a green card out or tell the foremen in case it did not happen at work. The representative noted that the co-worker's evidence contradicts the worker's evidence that he started to have pain in right wrist/forearm when digging. In addition he noted the statements of other co-workers and the supervisor which did not support a finding that the claim is acceptable.

The representative also disagreed with the finding that the mechanism of injury is consistent with the medical findings. He noted that the evidence of injury is also consistent with weightlifting and that the worker weight lifts every day prior to going to work.

Worker's Position

The worker did not participate in the appeal.

Analysis

The employer has appealed the Review Office decision that the worker's claim is acceptable. For the employer's appeal to be successful, the panel must find that the worker's injury did not arise out of or in the course of his employment. The panel finds, on a balance of probabilities, the worker's claim is not acceptable.

In the Worker Incident Report, the worker indicated that he was using a spade to dig a small grave. He indicated that while digging he would periodically hit the side of the walls to make them smooth. The worker reported that he was digging for 6.5 hours on the first day. However, in a statement a co-worker stated that "We each dug for about 20 mins and took turns telling each other when we needed to swap but each swap was generally after 20 mins…I did the majority of digging but there was no injury moment." The worker's supervisor also commented on the time spent by the worker and co-worker in digging a hole. In a statement the supervisor commented that "The digging…should only take 2-4 hours but [worker] and [co-worker] spent one day to complete the task with many rest breaks." The panel accepts this information and finds that the worker was not digging for 6.5 hours.

The panel finds that the worker did not dig constantly for the entire 6.5 hours on the first day and that the actual time spent digging with periods of rest, was not sufficient to develop right shoulder tendonitis or lateral epicondylitis.

The panel also considered the mechanism of injury and the movement/mechanism involved in shoveling a 42 inch deep grave. The panel is unable to identify any actions/movements in digging the grave which are causative of the diagnosed conditions.

Finally, the panel has considered the statements of co-workers provided by the employer which are not supportive of a workplace injury. The panel notes that a co-worker who was working within close proximity of the worker or his partner were aware the worker was injured. As well, a trainee foreman at the site commented that the worker "…had been telling us all that morning, when getting ready for work at 8am, that he had been to the gym that morning before work and had worked his arms, so I was surprised by the injury claim."

The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of May, 2013

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