The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his left elbow injury was not related to his compensable accident.  A hearing was held on June 2, 2015 toconsider the matter.

Issue

Whether or not responsibility should be accepted for theworker's left elbow injury as being a consequence of the September 9, 2011compensable accident.

Decision

That responsibility should not be accepted for the worker'sleft elbow injury as being a consequence of the September 9, 2011 compensableaccident.

Decision: Unanimous

Background

On September 9, 2011, the worker was ejected from an off road vehicle when he struck a rock pile. Following the accident, the worker was taken to a local hospital facility for medical treatment and on September 19, 2011 he returned to work. The employer advised the WCB the worker will claim benefits through Manitoba Public Insurance ("MPI").

In July 2012, the worker contacted the WCB indicating that he could not recall making a personal injury claim with MPI. The worker reported that he broke his collar bone in the accident and that it never fully healed. The worker noted that his biggest issue was that his left elbow was permanently bent at 90 degrees since the accident. The worker speculated that when he fractured his collar bone, it pushed into his left shoulder socket causing his elbow to become deformed.

File records confirm that the worker did not have a claim with MPI with respect to the September 2011 accident.

On September 4, 2012, the worker advised the WCB that he stayed overnight in the hospital following the accident and was then discharged. He told the hospital that his elbow was really sore and they told him his elbow was not broken. The worker said his left elbow has been crooked since the accident. He only missed one week of work and then returned to lighter type duties. The worker noted that his employer was aware of him having problems with his collar bone and elbow.

Medical information on file consisted of hospital reports, laboratory test results and consultation reports dated October 4, 2011 and September 26, 2012.

On November 14, 2012, a WCB medical advisor reviewed the medical information at the request of initial adjudication and provided an opinion regarding the worker's injuries. Regarding diagnosis, the medical advisor stated that the loss of range of motion of the worker's left elbow was caused by a fracture of the head of the left radius with depression of the articular surface. This was part of the workplace injury, which also included blunt head injury with loss of consciousness, left lung contusion and fracture of the left mid clavicle. All the above were accounted for by the workplace injury. The medical advisor commented that the recommended CT scan of the left elbow was related to the workplace injury and would lead to recommendations for further treatment.

On January 10, 2013, the WCB advised the accident employer that responsibility was being accepted for the worker's left elbow, head, neck and lung injuries and that the worker was entitled to WCB benefits and services which included medical treatment and wage loss benefits.

On March 26, 2013, the worker underwent the following surgical procedure: Left elbow arthroscopy with debridement osteophyte posterior olecranon and olecranon fossa plus anterior capsular release. On September 16, 2013, the worker underwent left shoulder acromioclavicular joint stabilization with tibialis posterior allograft.

On December 2, 2014, the employer appealed acceptance of the worker’s claim beyond the date of his return to work in September, 2011. It contended that the worker’s issues beyond that date were related to pre-existing injuries that the worker had suffered. The employer’s Vice-President advised the WCB that when she went to visit the worker in hospital after the accident, his parents informed her that the accident was nothing new, for the worker had broken several bones in his moto-cross days.

In a decision dated January 28, 2015, Review Office concluded that the worker’s left elbow injury was not compensable. The worker had not reported a left elbow injury initially, no medical treatment was sought by the worker for his left elbow until some months later, and the medical information did not support a left elbow injury being suffered at the time of the workplace injury. In coming to that conclusion, Review Office noted that the only mention regarding the worker’s left elbow when he was examined after the accident was some tenderness noted in the triage report along with general pain. The consult report of the following day made no mention of left elbow issues, and the surgeon’s follow-up examination three weeks after the accident made no mention of left elbow pain or tenderness. Review Office commented that “the worker had returned to work by that time and given the nature of his work, Review Office finds it highly unlikely that he would not have reported left elbow difficulties had he suffered a fracture at the time of the accident.”

On February 2, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

Subsection 1(1) of the Act defines “accident” to mean “a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.”

Worker’s Position

The worker was accompanied at the hearing by his mother. The panel was advised that she is a registered nurse and that she had accompanied the worker to most of his medical appointments.

At the start of the hearing, the worker was asked if he or his mother would be making the presentation on his behalf. He was told that if he chose to make the presentation, we would permit his mother to make some comments following his presentation. He elected to make the presentation.

That approach proved to be problematic. Despite being told, on several occasions, that questions the panel put to the worker were to be answered by the worker, his mother frequently intervened and either provided an answer, or “corrected” an answer that he had given. On at least one occasion, he looked to his mother for her to answer a question that had been posed to him. In some cases, her answers were based on information that was clearly hearsay, in that she had not been present in the circumstances that were being explored.

The worker testified that at the time of the accident, he was driving a four wheel quad on a road running along the top of the jobsite. It was the end of his work day, and he and the two other crew members were returning to an access point for the project. The worker testified that he was in the lead. They were within two to three kilometers of his destination when he looked back at the others who were travelling behind him and in so doing, he hit a “pile of rocks” on the roadway. He said that he “went for a ride”, that he suffered severe head injuries” and that he “woke up in the Health Sciences Centre” after having been transported there by ambulance. In fact, he had initially been transported to the Concordia Hospital.

The worker testified that the pile of rocks, which was to be used as “rip-rap”, had not been there when he travelled that portion of the jobsite earlier in the day. He described the pile, comprised of larger rocks (five to ten inch boulders), as being 5 to 6 feet in height. He said the pile was sitting in the middle of the jobsite road.

The worker testified that he was off work for the first week following the accident. He then returned on light duties. He stated that for the first week back, he was “good" to his arm. He said that he then started pushing himself to get back to his normal duties and that he was performing his normal duties by the end of September. They included being able to lift a minimum of 50 pounds. He was sweeping floors, driving and fueling vehicles and using two hands to chain down equipment that needed to be moved. He was also operating skid-steer vehicles (a bob cat and front end loader), and “making top soil in the yard.” The worker also testified that all of the work that the employer assigned to him fell within his then physical capabilities. There was no suggestion that the employer was pressuring him to perform more onerous duties.

The worker testified that toward the end of October, he would have been “throwing sod.” The worker testified that his injury resulted in his arm being permanently bent in a 90 degree position but that he hadn’t been aware of that because for the first while, his arm was in the sling. He also testified that he diagnosed his inability to straighten his arm as “sling arm,” a term that he himself coined, and that he believed that it would “eventually come around.”

The issue of the sling illustrates the difficulty that the panel had with both the worker’s evidence and his mother’s interjections. The worker initially testified that he “was in the sling for quite some time … at least until November.” His mother then interjected by saying “I’m thinking two months.” Shortly thereafter, the worker testified that he resumed his regular duties after his arm came out of the sling. He adopted his mother’s evidence that this occurred two months after the accident. In speaking to his contention that his purported elbow restriction dated back to the accident but not before, he stated that “my arm was in the sling so long for me not to know that there was a problem with my arm. It kind of healed that way.” It was subsequently put to him that when he was examined three weeks after the accident, the examining physician would have removed his arm from the sling for the purpose of the examination. He acknowledged that this did happen, but he said he and the doctor were focusing on the shoulder and neither of them gave any consideration to his concerns regarding his elbow. The worker then stated that within a few weeks after the accident he was doing all the jobs that he had regularly done, and in doing so, he was using his left arm.

Subsequently, the worker stated that for the first two weeks back he functioned with “one-arm mobility” and that he remembered “having to sneak my arm out of the sling once in a while to try to use it.” He said that he was in a sling for the first month. His mother then interjected by saying “More than that.” The worker then followed that by stating “… my full agreement with you would be a minimum of one month in a sling. Up to two months in a sling…”

Later, the worker acknowledged that by the end of September (i.e. three weeks after the accident), he was working with his hand out of the sling for the better part of the day.

The panel questioned the worker on previous injuries that he might have suffered. He stated that he played soccer and football, that he raced dirt bikes, snowmobiles, and stock cars, and that he had crashed before but had never incurred an injury or broken a bone. He agreed that he was somewhat of a daredevil. He then went on to state that in 2009, he tore his ACL while snow-boarding, and that he had suffered head injuries on at least two occasions.

Employer’ Position

The employer did not participate in the appeal. It was its position, however, that the issues with the worker’s left elbow were related to injuries that the worker had suffered prior to the accident.

Analysis

The issue before the panel is whether or not the worker’s left elbow injury was a consequence of the September 9, 2011 compensable accident.

In order for the appeal to succeed, the panel must find that the worker’s accident of September 9, 2011 caused or contributed to his left elbow injury. On a balance of probabilities, we are not able to make that finding. In the panel’s opinion, the worker’s left elbow injury was not related to the accident of September 9, 2011.

The panel notes the worker was transported and treated in local healthcare facilities on the date of the workplace injury. He was diagnosed and treated for an undisplaced fracture of the mid shaft of the left clavicle. He was discharged the following day. No medications were prescribed. He was advised to resume activity as tolerated and to avoid vigorous activities and heavy lifting for 4 to 6 weeks. His left arm was placed in a sling “for comfort.” He was to see the orthopedic surgeon for a follow-up in two weeks.

The hospital charts do not contain any reference to any complaints that the worker had made with respect to pain in his elbow, other than tenderness that was noted at the first healthcare facility.

The worker was seen on a follow-up basis by the treating surgeon on October 4, 2011. He was reported to be doing well. No mention was made with regard to any pain or other issue that the worker was experiencing with his elbow. He was to be seen on a further follow-up six to eight weeks later. However, it appears that no further follow-up took place.

At the hearing, the worker testified the injury resulted in his arm being permanently bent in a 90 degree position. The panel finds, however, that the worker’s testimony regarding the permanent 90 degree bend in his arm is inconsistent with the medical evidence and the activities that he undertook in the year following the accident.