The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her left wrist condition was not related to the accident at work on January 26, 2012. A hearing was held on May 22, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On April 19, 2012, the worker filed a claim with the WCB for a left wrist injury that occurred at work on January 26, 2012. The worker reported that she and a co-worker were boosting up a patient who was sliding out of his chair. She had her right arm under the patient's shoulder and her left wrist under his legs. The worker reported that she saw a doctor for treatment on February 6, 2012 and was told that she probably overused her wrist as she was compensating for a compensable left shoulder injury. She was given a prescription and a referral to a physiotherapist. The physician did not authorize any time loss from work. The worker reported that she went to medical appointments on February 16, 2012, March 22, 2012 and April 17, 2012. At the April 17 appointment, the doctor gave her a note to be off work for 10 days.

A Doctor First Report regarding a medical examination on February 16, 2012 indicated that the worker had tenderness on the radial aspect of her left wrist. There was no indication on the report of an accident or injury. The diagnosis was wrist pain NYD (not yet diagnosed) and possible tendonitis. Further medical reports dated March 22, April 9 and April 27, 2012 confirmed a diagnosis of left wrist tendonitis.

On May 3, 2012, the worker advised her WCB case manager that she told her physician on February 6 about her work-related left wrist injury but the doctor wasn't listening. The doctor found her medical chart and saw an old left shoulder injury and just referred to the left shoulder stating that she was overcompensating with her left arm and therefore had symptoms in her left wrist. The worker said she tried to tell the doctor that, if anything, she compensated by using her right side more than the left and that on January 26 while transferring the patient she felt a sharp pain in her wrist which was when the symptoms started. The worker indicated that her left shoulder seldom bothered her.

In a decision dated May 3, 2012, the worker was advised that her claim for compensation was not acceptable as the WCB had been unable to establish that her work activities caused her wrist difficulties. The decision was based on the initial lack of a precise diagnosis, no work-related mechanism of injury, the significant delay in reporting to the employer and in seeking medical attention.

On October 18, 2012, a union representative appealed the decision of May 3, 2012 on the worker's behalf to Review Office. The union representative submitted a letter and chart notes from the treating physiotherapist to support that the worker reported a work-related accident to her left wrist from transferring a patient and that the worker's signs and symptoms were consistent with a severe tendon strain or tear. The representative also referred to a July 22, 2012 MRI report which identified a scapholunate interosseus ligament. The representative indicated that the worker continued to work because her employer suggested that they were too short of staff to allow for time off. When the symptoms were unable to be managed the worker sought medical treatment from a physiotherapist as prescribed by her physician.

On November 19, 2012, the employer's representative agreed with the WCB's decision to deny the claim. The representative indicated that the worker's delay in reporting her injury and delay in seeking medical attention made it difficult to relate her medical condition to her workplace duties. As well, when the worker first attended for medical treatment, a definitive diagnosis was not provided and her condition was not related to a workplace cause or specific accident mechanism. The representative also noted that there were some deficiencies in the investigation of the claim, ie. no witness statement from the co-worker who was assisting the worker and no narrative report from the treating physician.

In a decision dated January 21, 2013, Review Office determined that the claim was not acceptable. Review Office indicated that the worker had previous claims with the WCB and was aware of the requirement and importance of reporting all work injuries when they occur. The worker continued to work her regular duties after the incident of January 26, 2012 up until April 12 and made no attempt to report any difficulties to her employer until April 19.

Based on the worker's delay in seeking medical treatment and reporting an injury to her employer and the physician information that no work-related accident was reported, Review Office found that the evidence did not establish that the worker sustained a personal injury by accident arising out of and in the course of her employment on January 26, 2012. On January 29, 2013, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (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.

Section 109 sets out the ability to enlarge time limits within the Act if an injustice would result. This enlargement may be granted either before or after the expiration of time prescribed.

This appeal deals with claims acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s left wrist condition arose out of and in the course of her employment.

Worker's Position

The worker attended the hearing with a labour relations officer and her union's WCB specialist who made a submission on the worker's behalf. The worker answered questions from her representative and the panel.

The worker told the panel that she worked as an LPN in a small rural hospital. She described her duties at the hospital. She said that she was injured while tending to a stroke patient who was paralyzed on one side. The patient was sliding out of a Broda chair. She and a co-worker attempted to boost the patient as he was trying to slide out of the chair. She said that "When we went to do the positioning, I had my arm - my right arm under his arm and I put my left arm under his leg. When we went to do the boost up, he resisted and pushed and rolled on my wrist. This fellow is a very big man. Boney prominence, so it just kind of crunched into my wrist, so caught me off guard at the time."

The worker said that she worked the balance of the day and had a weekend to rest. She said that she was not in serious distress at the beginning.

The worker said that her co-workers were aware she injured her wrist. She said that after a month, she spoke with her manager who advised her to get a brace. The manager told her to use heat and ice applications and assigned a student to help and do any lifting.

In answer to a question as to why she kept working, the worker replied:

"Well, the workload on the floor. And management did tell me she had one lady off already and couldn’t afford to have another off. The staff I work with, we work really good together and I didn’t want to stress them. They were really good to me, letting me take my time with lifts or use the opposite hand, and I just thought if I rest it myself, take my time with stuff on the floor - I was believing maybe it was something more minor and I was waiting for physio, just hoping I can heal it myself and continue working."

The worker said that she did not report the accident to the WCB because she thought that it was like other strains and would resolve.

She advised that she had an MRI which identified a small pin hole tear and a ganglion. She said the tear has healed but the ganglion is too small to remove. Her representative provided the panel with copies of the MRI.

The worker's representative disagreed with the WCB position that the worker had not notified the employer until April 12, 2012. She noted that the worker advised the employer on March 22, 2012. She submitted that the claim is acceptable.

The worker representative said the worker:

• was unaware of Section 17.1 of the Act that suggests that a worker needs to report a workplace injury within 30 days.
• believed that her employer was aware of her difficulties because they were making accommodations for her. They provided her with a student so that she could take a break from the heavy lifting that was required by her job.
• sought medical advice as soon as she could get an appointment and explained that sometimes in rural settings it takes a long time to access health care providers and get an appointment with a physiotherapist.

The representative said that the WCB didn't do much investigation on this claim. The WCB denied the claim during the intake interview and did not seek out clarification as to why the doctor hadn’t filled out the assessment form.

Employer's Position

The employer was represented by an advocate who made a presentation on the employer's behalf. The employer representative advised that the employer agreed with the WCB and Review Office decisions on this claim.

He noted several factors which support a finding that the claim is not acceptable, including:

• a delay in seeking medical treatment
• a delay in notifying the employer
• a delay in filing a WCB claim notwithstanding past WCB claims
• the worker was physically capable of performing her regular work duties with no set restrictions from the date of accident until April 12, 2012
• at her first medical appointment, no definitive diagnosis was provided and her doctor did not relate her condition to a workplace cause or specific incident

The representative said that the injury noted on the MRI report was not consistent with the mechanism of injury described by the worker. The representative submitted that the circumstances of the claim do not meet the criteria set out in the Act defining a compensable accident and injury.

Analysis

The issue before the panel is claim acceptance. In order for the appeal to be successful, the panel must find that the worker's left wrist condition is attributable to her job duties. The panel was able to make this finding. The panel finds, on a balance of probabilities, that the worker sustained a workplace injury on January 26, 2012 when moving a patient. The panel finds that the injury was a scapholunate ligament tear as seen in the July 20, 2012 MRI. The panel does not find a relationship between the ganglion shown on the MRI and the accident.

The panel finds the worker to be very credible and notes that there was a witness to the accident and that her co-workers were aware of the worker's ongoing difficulties, as noted by the statements filed in support of the worker. Regarding the delay in seeking medical attention, the panel finds that the worker sought medical attention promptly given the rural area in which she resides.

With respect to the injury, the panel finds that the mechanism of injury is consistent with the diagnosis. The worker's evidence is that her thumb was pushed backwards and out, causing the tear to the tendon. The panel finds that the quick loading on the wrist by a heavy patient was sufficient to cause an acute tear to the scapholunate ligament, which was ultimately confirmed by the MRI of July 20, 2012. The panel also notes that this diagnosis was identified as a possible diagnosis by the treating physician in a report dated May 28, 2012 which significantly pre-dates the MRI.

Finally, the panel notes that the WCB Review Office attached significant weight to the worker's delay in reporting the accident to the employer. The panel finds that the employer was aware of the injury at an earlier date than April 19, 2012, and in any case, the panel finds the worker's claim to be a just claim under section 109 of the Act and therefore allowed.

The worker'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 3rd day of July, 2013