Decision #53/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny his claim for a left elbow injury occurring in the workplace. A hearing was held on March 18, 2015 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 a left elbow injury that occurred at work on September 25, 2014 while employed as an automotive mechanic. In his claim, the worker described the injury as occurring while attempting to remove a bolt with a breaker bar and then with a pipe. He noted that when the bolt came loose, his left arm jarred and he felt an uncomfortable feeling, like a pop, in his left elbow. He continued to work through the day, thinking it was a minor injury that would soon heal.
The worker returned to work the next day but didn’t have opportunity to see his employer to report the injury. He advised the employer on Monday that his arm wasn’t feeling good and the pain had impacted his sleep the previous night. That same day the employer advised the worker he would be laid off as there wasn’t enough work.
On September 30, 2014, the worker sought medical treatment for the injury and advised the employer he was doing so. On October 1, 2014, the worker made a claim to the WCB.
The Employer's Accident Report indicated that the worker did not miss any time due to the accident and that his last day worked was September 29, 2014. Further, the report indicated the worker was let go on that date due to work performance.
Medical reports received indicate that the worker sought medical attention on September 30, reporting a right arm injury incurred at work, loosening a bolt overhead on September 25, 2014. The medical records indicate the worker stated his right arm was very painful after pulling and that it was progressively worse since the injury, with decreased range of motion, increased swelling, numbness to the dorsum of his right hand and decreased wrist extension. A soft tissue injury was diagnosed, with a referral made to an orthopedic consultant and for MRI testing.
MRI testing took place on October 1, 2014 and confirmed there were no ligament tears, tendon ruptures or other acute findings besides effusion. The orthopedic consult did not occur until October 14, 2014.
On October 2, 2014, the worker advised a WCB adjudicator that he was the only one that had been laid off by his employer. He noted that his employer could be very intimidating which was partly why he tried to work through his injury.
On October 6, 2014, a WCB adjudicator spoke with a co-worker identified by the worker. He stated that he first became aware of the worker's injury on September 29, 2014. The worker mentioned having a sore elbow that day and that it happened the week before.
A manager with the employer advised the WCB there was no report of injury until September 29, 2014 and that the worker had since quit employment with the company. When asked why the employer's accident report indicated that the worker was let go for performance issues, the manager indicated that that information was incorrect. He said there were performance issues leading up to the alleged accident and that the worker came in on Tuesday and grabbed his tools and left so it became clear that he had quit. The adjudicator asked whether the worker actually used those words or provided anything in writing and the manager said no.
By letter dated October 8, 2014, the worker was advised that the WCB was denying his claim for a left elbow injury occurring on September 25, 2014. The adjudicator’s decision was based on the conclusion that the worker delayed in reporting his injury and in seeking medical attention.
On November 3, 2014, the worker appealed the decision to deny the claim. The worker advisor representing the worker noted that the worker's delay in reporting and seeking medical attention was not excessive. The worker was consistent in reporting the incident to emergency, and the diagnosis matched the mechanism of injury. The worker advisor concluded that the evidence supported that the worker sustained an injury to his left elbow during the course of his employment on September 25, 2014.
On December 22, 2014, Review Office confirmed that the claim was not acceptable.
On January 7, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
The issue to determine is whether or not the claim is acceptable.
Applicable Legislation
In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Worker’s Position
The worker described to the panel the circumstances under which he injured his elbow. While at work on September 25, 2014, he was assigned to remove the ball joints and tie rods from a truck on a hoist. He needed to remove an axle nut. He tried to do so with a socket wrench, then a breaker bar and finally used a pipe extension to loosen the nut. He described to the panel that in doing so, he pulled down on the bar with significant force, toward his left side and as the nut loosened, he felt a pop and discomfort, calling out in pain. After finishing the job, he took a break and “walked it off” while stretching the arm. Because this occurred near the end of the workday and his employer was unavailable, the worker did not report the injury that day.
He iced the injury that evening and took a painkiller before going to bed. He felt discomfort during the night.
The worker stated that he noted some swelling the next morning and had trouble dressing. He did mention his sore arm to his employer the next morning but didn’t have a chance to discuss it further as his employer was called away for the balance of the day. He worked that day at a slow pace, using only his right hand as much as possible.
By Monday, September 29, 2014, the worker identified that this wasn’t a minor injury and he told his employer about it. The worker was notified by his employer the same day that he would be laid off. The worker sought medical attention on September 30, 2014 and notified WCB of his claim on October 1, 2014.
The worker takes the position that he sustained a personal injury as a result of a workplace accident that occurred on September 25, 2014 and that his claim should therefore be accepted. His position is that the delay in seeking medical attention and making his claim to WCB is explained by the fact that minor injuries are commonplace in his line of work and that he wasn’t aware, until several days had passed and the symptoms did not improve, that medical attention would be required.
Employer's Position
The employer did not participate in the appeal.
Analysis and Decision
In order to find that the worker’s claim should be accepted, the panel must find on a balance of probabilities that the worker suffered personal injury by accident arising out of and in the course of employment. The panel was able to make this finding.
The worker’s evidence as to how he sustained injury to his left elbow is consistent with the report he made on seeking medical attention several days later. The initial medical evidence from the worker’s first visit notes that the worker reported the injury occurred the afternoon of September 25, 2014 as the worker was seeking to loosen a bolt. The worker reported that the injury to his left arm was “++ painful” and was progressively worsening. Range of motion was decreased and there was “++ swelling,” numbness to dorsum of hand and decreased wrist extension.
The worker himself described that he tried to “shake off” the injury immediately after it occurred, assuming it was a minor injury of a kind typical in his line of work. He went home shortly thereafter and iced his elbow in the evening for a couple of hours. He noted that the discomfort was tolerable with a painkiller taken before bed but it was uncomfortable going to sleep.
The next morning, he needed assistance from his wife in dressing. He noted that there was a little lump in the elbow and that the elbow seemed swollen. He went to work on Friday morning and finished the job he started on Thursday, working “one-handed” as much as possible.
By Monday morning, the worker indicated he realized that the injury was not minor. That was when he told his employer about the accident.
The worker first sought medical attention the next day, as already noted above. Based upon the initial consult, he was referred for an x-ray and an orthopedic consult. The x-ray revealed there was no fracture. The doctor’s first report indicates an initial diagnosis of a soft tissue injury. The orthopedic consultant requested an MRI, which took place on October 1, 2014. The MRI report indicates subcutaneous edema involving the posterolateral margin of the elbow, but the MRI did not find any evidence of biceps tendon rupture.
On October 14, 2015 the worker saw the orthopedic consultant for follow-up. The report of that date indicates that the worker’s elbow range of motion has improved but not fully. Further, pronation and supination still cause him some pain. Physiotherapy was prescribed to address range of motion issues.
The panel finds that the reported mechanism of injury is consistent with the progression of symptoms described over the days following the injury. The worker’s symptoms worsened over the course of the days following his injury and were beginning to improve by the time of his orthopedic consult on October 14, 2014.
In the initial adjudication of this claim, an issue was raised with respect to delay in reporting.
The worker provided the panel with his explanation for not reporting the injury to his employer until four days later and for not seeking medical attention until five days later.
He explained that when the injury occurred late in the day on Thursday, September 25, he at first believed it was a typical “minor” injury that would soon heal. He left for the day shortly thereafter, without having a chance to speak with his employer before leaving.
The worker explained that although his symptoms of pain and swelling worsened overnight, he worked the full day on Friday, September 26, taking his time and working in such a way as to accommodate the injury to his elbow. He clarified that he did not have an opportunity to speak with his employer that day as his employer was out of office all day except for a few moments in the morning. When, over the weekend, his symptoms continued to worsen, he decided to report the incident to his employer on Monday, September 29. When he did so, he was advised he would be laid off. He sought medical attention the very next day and reported the injury to WCB the following day.
We accept the worker’s explanation for why he did not report the injury to his employer until sometime later and further for why he did not immediately seek medical attention. We do not consider this to be a situation of late reporting. The worker’s explanation is reasonable and accounts for the gap in time between the injury and the report to the employer a few days later.
Based upon the worker’s submissions, the medical findings and the evidence of the mechanism of injury, we find on a balance of probabilities that the worker did injure his elbow by accident
arising out of and in the course of employment on September 25, 2014. His claim is therefore accepted.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 5th day of May, 2015