Decision #73/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on May 7, 2015 to consider the matter.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.
Decision: Unanimous
Background
On October 1, 2014, the worker filed a claim with the WCB for a left hand injury that he related to an incident on August 23, 2014. The worker reported: "I was lifting a suitcase it was way over 50 pounds and I heard a snap in my left hand by my thumb beside by wrist." The worker indicated that he related the incident to his employer on September 16, 2014. The reason for the delay in reporting the incident was because he thought he could tough it out. He used ice, a heating pad and Advil for the inflammation.
The worker advised the WCB that he was right-handed and he told a co-worker about the incident right after it occurred. He said his doctor thought that he probably pulled or snapped a tendon.
A Doctor's First Report dated October 1, 2014 stated: "He was lifting a big bag, and felt pain in left wrist." The diagnosis was left wrist strain - thumb tenosynovitis.
On October 2, 2014, the employer spoke with a WCB adjudicator stating the worker, on September 28, 2014, reported that he hurt his hand in August. She had no idea or record that the worker injured himself in August.
On October 2, 2014, the WCB spoke with a co-worker who stated that he did not see the actual incident and could not say exactly how the worker hurt his hand. He did notice that the worker was holding onto his wrist to comfort it.
By letter dated October 14, 2014, the WCB determined that the worker's claim for compensation was not acceptable as a relationship could not be established between the development of his left hand/wrist symptoms and an accident arising out of and in the course of employment. The WCB's opinion was that the worker continued to perform his regular duties without the need for medical treatment and he delayed in reporting without a known mechanism of injury.
On December 5, 2014, a worker advisor wrote Review Office indicating that the accident employer did not provide any information to the worker on what to do in a case of an injury and the worker had no knowledge that there were forms available by the cashier. This was the first time he filed for workers compensation and he did not file sooner because he had a fear of being terminated. It was felt that the file evidence supported that lifting luggage at work was the accident which caused the worker's ongoing left wrist difficulties which satisfied the provisions under the Act.
On January 22, 2015, Review Office found that the worker's claim for compensation was not acceptable. Review Office noted that after the event on August 23, 2014, the worker continued to work and he did not seek immediate medical attention. There were no witnesses to the event and he did not report a workplace injury to his employer. The co-worker's statement did not confirm an injury "arising out of and in the course of employment." It simply noted that the worker had a painful wrist. Review Office found that the worker's wrist pain was not related to lifting a piece of luggage six weeks prior to reporting it. On March 12, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and the 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.
The worker is appealing the WCB Review Office decision that his claim is not acceptable. The key issue to be determined by the panel deals with whether the worker suffered an injury by accident that arose out of and in the course of his employment.
Worker's Position
The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker answered questions from the panel.
The worker advisor submitted that, on a balance of probabilities, the worker's claim is acceptable. She noted that:
· the employer had provided no instructions or training to the worker on what to do in the case of an injury
· the worker did not know about his right to apply for WCB benefits until informed by his physician
· the worker contacted the WCB after being informed by his physician that he should file a claim
· a co-worker was aware that the worker had pain when lifting
In response to questions, the worker advised that:
· the accident occurred when he was picking up clients at the pick-up site about mid-way through his shift and loading their luggage, in the back of his vehicle with both hands
· when he lifted a heavy suitcase with his left hand, he immediately felt pain but continued to work as the rush (busy portion of the day) was over
· he self-medicated, using Advil and a wrist strap which he purchased at a pharmacy
· he was not aware of the WCB program or the need to file a claim
· when the pain did not clear up, he saw a physician who informed him of his right to file a WCB claim, and he immediately called the WCB and advised of the injury
· he then completed a form at work
· he has been seen by a specialist who gave him a cortisone shot
· he was off work for a few weeks, returned to work and continues working for the employer
Employer's Position
The employer did not participate in the appeal.
Analysis
The worker is appealing the Review Office decision that his claim for a work related injury is not acceptable. For the worker's appeal to be approved the panel must find, on a balance of probabilities that worker sustained a personal injury by accident arising out of and in the course of his employment. The panel was able to make this finding.
In accepting this claim the panel attaches significant weight to the following:
· the mechanism of injury, as described by the worker, is consistent with the diagnosed injury.
· a co-worker was aware that the worker had a sore wrist from lifting luggage. The panel notes that the accident occurred at the pick-up site and not at the workplace so the co-worker would not have been able to witness the accident.
· the worker's evidence that he did not initially consider the injury to be serious, so he self-medicated and treated the injury. When the injury did not resolve, the worker contacted a physician who advised him of his right to file a WCB claim. The panel notes that the worker contacted the WCB on October 1, 2014, the date of his first visit with the physician as noted on the Doctor's First Report.
· the description of the injury in the Doctor's First Report is consistent with the description provided elsewhere in the file
The panel found the delay in seeking medical and the delay in contacting the WCB was reasonable in the circumstances of this claim.
While there were some discrepancies in the evidence, the panel considers these to be minor. The panel found the worker to be a poor historian but finds that the bulk of evidence supports that the worker was injured while performing his employment duties.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of June, 2015