Decision #164/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she did not sustain a work-related injury to her right middle finger in October 2013 and therefore her claim for compensation was not acceptable. A hearing was held on December 4, 2014 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to her right middle finger that occurred at work on October 23, 2013 while unloading boxes from a trailer. The worker indicated that she pulled one of the boxes down and felt an immediate tug in her right middle finger. She kept on working as she had to finish her work at the job site. The worker indicated that she first sent a message to dispatch and then she phoned the safety compliance manager on October 23, 2013 to advise him of her injury.
The safety compliance manager filed the Employer's Accident Report on October 30, 2013 and stated:
"She thinks she was lifting a box and stretched/pulled her finger. She figures it was the 23rd but not sure. When I spoke to her on the 24th she said it wasn't work related, that she flicked her finger and it was sore. Didn't know what she did. Yesterday October 29th she said she was going to see a doctor today October 30. Just told me today that it may be from work."
The WCB obtained medical information which showed that the worker attended for treatment on October 25 and on October 30, 2013. The worker described her injury as flicking something off her hand. The diagnosis was a sagital band rupture.
On October 31, 2013, a WCB adjudicator documented information she obtained from the worker regarding the work duties she performed which she felt caused her middle finger injury and how she reported the injury to her employer. The worker also commented that when she got back into her truck after moving freight she noticed something on her thumb and she used her third right finger to flick something off it and then she experienced immediate and intense pain in her finger. The adjudicator also contacted the employer's safety compliance manager to obtain additional information regarding his knowledge of the worker's right middle finger injury and the reporting of same by the worker.
By letter dated November 15, 2013, the worker was advised that the WCB was unable to accept her claim for compensation and that no responsibility could be accepted for wage loss or medical treatment related to her right middle finger injury. The WCB case manager stated:
In our October 31, 2013 discussion you explained on or around October 23, 2013 while sitting in your truck cab, you flicked some debris off your hand with your right middle finger. You experienced immediate significant pain, and loss of strength and mobility in the finger. Although you were at work, you were not flicking debris off your hand as part of your work duties.
While you confirmed that you initially reported to your employer the act of flicking your finger, upon reflection you felt that your work activities of moving boxes leading up to the accident could have resulted in your injury. You recalled experiencing some minor discomfort at that time...You consistently attributed your finger problem to a non-work related mechanism of injury when speaking with your employer and healthcare providers. It was only after significant reflection, you provided an alternate description of accident. Following a review of your claim, it is the opinion of Compensation Services that you were injured at work, however you were not performing your work duties when you were injured. You were performing a personal act of flicking your finger. As such, Compensation Services will not accept any responsibility for this claim, including wage loss and medical treatment."
On April 22, 2014, the Worker Advisor Office asked the WCB to reconsider its decision of November 15, 2013 based on new medical information from a plastic surgeon dated February 28, 2014 who stated:
"[The worker] stated feeling discomfort prior to finishing moving her freight, but continued to unload her vehicle. Intense pain was noted once [the worker] removed working gloves and flicked her finger. I cannot determine the exact time or mechanism of injury, however, in my opinion [the worker] was more likely to have injured her hand while moving freight, and did not become cognizant of the intensity of the injury until removing her work gloves, which essentially acted as a protective splint."
The worker advisor further stated:
"While you concluded finger flicking was a "personal action," we suggest there is no evidence on file to confirm this was unrelated to [the worker's] work activities on October 23, 2014. Furthermore, while [the worker] initially believed flicking her finger caused her injury, the treating surgeon has provided the opinion that the sagital band rupture more likely occurred in relation to the physically-demanding work involved with the unloading of freight."
In a memo to file dated May 29, 2014, a WCB case manager documented that she called the employer's safety compliance manager for additional information. The safety compliance manager indicated that the first time he found out about the incident was when the worker posted a picture on Facebook on October 24, 2013 that she "dislocated finger." He then called the worker on October 24, 2013 to further clarify. The worker stated her finger was just sore and it was not work-related. The employer confirmed that the worker sent a satellite message to dispatch on November 10, 2013 that she cracked a bone in her pinky finger. She was going to the doctor and was then stating it was work-related. This was the first satellite message they received from the worker. The worker did not send a satellite message on the date of the incident, October 23, 2014.
On May 30, 2014, it was determined that no change would be made to the original WCB decision to deny the worker's claim. The WCB case manager noted that there was conflicting information regarding the date the reported injury took place in addition to what had caused the right middle finger problem. Based on the employer's evidence, when speaking with the worker on October 24, 2013, the worker said her problems were not work-related. There was no mention of a history of moving windows. Despite the opportunity to report the incident, the worker delayed reporting the injury to her employer. It was the opinion of Compensation Services that a workplace accident on October 23, 2013 could not be confirmed. On June 10, 2014, the Worker Advisor Office appealed the decision to Review Office.
On August 7, 2014, Review Office was unable to confirm that the claim for compensation was acceptable as it was unable to establish that an accident occurred based on the inconsistent information on file. Review Office stated:
- it did not place weight on the plastic surgeon's medical opinion of February 28 as it was inconsistent with the worker's report. The plastic surgeon's opinion was speculative as to what had caused the worker's injury.
- the worker provided different mechanisms of injury and different levels as to the intensity of her discomfort. It was therefore unable to find that the worker sustained an injury while performing her work duties.
- a sagital band rupture would represent an acute injury that would produce immediate symptoms and impact the level of functioning with the right hand. It could not account for this type of injury in relation to the worker moving freight.
- the worker's actions of flicking her finger would not lead to the diagnosis of a sagital band rupture.
On September 1, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
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.
This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s right middle finger injury arose out of and in the course of her employment.
Worker's Position
The worker was self-represented. She was accompanied by her brother. The worker outlined her reason for appealing and answered questions from the panel.
The worker's evidence included the following information:
Job duties
- the worker is a long haul truck driver
- she is responsible for unloading the truck onto the loading dock on each delivery
- the loads consists of kitchen cabinets which are packed in cardboard boxes with steel straps
- the boxes vary in size and can exceed 6 feet in height and 200 pounds in weight
- she wears gloves which assist with gripping boxes. She also wears the gloves while re-fueling.
October 23rd accident The worker demonstrated the mechanics of unloading the freight. As she is only five feet tall, some of the boxes are higher than her and some are stacked higher than her. She said that in getting the higher boxes down to the trailer floor, she would use a combination of pulling and wiggling the boxes repositioning her hands and fingers along various edges of the boxes, and using her body to support the boxes while sliding them to the floor. To move boxes to the back of the trailer, she would carry, pull or push the boxes. On October 23, 2013 she did get assistance with a larger box. The worker disagreed with the information on file from the employer representative regarding their communications surrounding the injury. Employer's Position The employer did not participate in the appeal. Analysis The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be acceptable the panel must find, on a balance of probabilities that the worker's right middle finger injury arose out of and in the course of her employment. After careful consideration of the facts, the panel finds, on a balance of probabilities that the worker's injury arose out of and in the course of her employment. Accordingly, her claim is accepted. In reaching this decision the panel attached significant weight to the worker's evidence of her duties on the morning of October 23, 2013. The worker demonstrated the actions and particularly the use and location of her hands in moving freight on the trailer. The panel notes that at many times during the process, the weight of a box is resting on the worker's cupped hand, primarily along the inside edge of the third finger. The worker said that she felt the tug in her hand when she was moving a heavy box which was stacked on another box. There was some discomfort but she continued to work. She advised the panel that when she had completed the task of moving the freight, the worker removed her gloves and proceeded to drive approximately 45 minutes to a truck stop when she put her gloves back on, refueled, and removed her gloves. In that period of time she had ongoing discomfort on the middle back of her hand. She then flicked her finger and felt intense pain. The panel finds that in the process of moving the freight, the worker sustained the workplace injury. The panel also finds that the sagital band was injured during this process and that the flick, which occurred after the freight was moved, completed the tearing process. With respect to the "flick," the panel finds that it is highly unlikely that the simple act of flicking a finger would result in rupture of the sagital band. The panel finds that it is more likely that the sagital band was injured while the worker was moving the boxes, especially given the worker's demonstrations of the lateral forces between the index and middle fingers. In this respect, the panel accepts the evidence of the treating specialist that the worker "was more likely to have injured her hand while moving freight..." The panel notes that the Review Office opined that "the worker's actions of flicking her finger would not lead to the diagnosis of a sagital band rupture." The panel agrees and, as noted above, find that rupture occurred while moving freight and that the act of flicking the finger completed the rupturing process. While there are inconsistencies in the file regarding reporting of the injury and the timing of the "flick," the facts establish that the worker was moving freight on the morning of October 23, 2013, felt discomfort during this process of moving freight, and had an injured hand. In the panel's opinion the evidence, on a balance of probabilities, supports a finding that the injury is work related. The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 12th day of December, 2014