The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was not entitled to wage loss and medical aid benefits in relation toher compensable right arm/elbow claim of February 27, 2015.  A hearing was held on January 13, 2016to consider the worker's appeal.  

Issue

Whether or not the worker is entitled to wage loss andmedical aid benefits beyond the date of accident.

Decision

The worker is entitled to wage loss and medical aid benefitsbeyond the date of accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right arm injury that occurred at work on February 27, 2015. The worker reported she was demonstrating to a student how to lift and place batteries in appropriate storage sections when she felt a pull in the elbow area of her right arm and severe pain in her elbow. The worker indicated that she carried on with the demonstration. As the pain in her right arm progressively worsened, she sought medical treatment on April 13, 2015. The worker stated that she reported the accident to her supervisor on the date it occurred.

Medical reports on file confirm that the worker sought medical treatment on April 13, 2015 and was diagnosed with a right arm/elbow sprain.

In a conversation with the WCB adjudicator on April 27, 2015, the worker confirmed the accident description as outlined in the Worker Incident Report. She denied any new accidents or incidents after February 27, 2015 to account for her ongoing right arm difficulties and denied prior right arm difficulties or further aggravation from work. The worker related her ongoing difficulties to rolling on her arm at night when she is sleeping. The worker indicated that she continued to perform her regular work duties as scheduled; however, her right arm difficulties progressively worsened. She stated her arm was sore at all times and she was having difficulty lifting and carrying heavier items. The worker stated she delayed seeking medical treatment as she figured her arm would get better on its own. The worker indicated that she has not missed time from work to date and that her supervisor was aware of her ongoing difficulties.

On June 19, 2015, a representative of the employer confirmed that the date of accident was February 27, 2015 and that the worker continued to perform her regular work duties as scheduled and there was no record of complaint. The employer representative confirmed that the worker’s supervisor was away on medical leave. The worker was off work on May 11 and 12, 2015 due to illness. The worker missed time from work on May 20, 21 and 22, 2015 and asked that payroll code this time loss as WCB. The employer did not receive a doctor's note authorizing the worker's time loss. The employer did not know whether the time loss was related to the February 2015 accident or a new one, but assumed it was the February 2015 claim since no new incident had been reported.

On June 30, 2015, the worker was advised that her claim for a right elbow injury occurring at work on February 27, 2015 was accepted by the WCB; however, she was not entitled to any wage loss benefits or medical treatment costs beyond the date of the accident. The adjudicator’s decision took into account that the worker completed her shift on the day of the accident and continued to perform her regular work duties as scheduled. Further, because the worker did not seek medical attention until April 13, 2015, there was insufficient information to establish a direct relationship between the worker's current right elbow difficulties and resulting medical care on April 13, 2015.

On July 6, 2015, the worker appealed the decision to Review Office. On July 8, 2015, an employer representative advised the WCB that upon further investigation, it was determined that none of the worker’s co-workers were aware of her right elbow difficulties and they did not notice a change in the worker's job performance or productivity. Most worked with the worker on a daily basis. The employer was unable to locate any written documentation by the worker's supervisor to confirm the worker's ongoing difficulties and their relationship to the compensable injury of February 27, 2015.

On August 4, 2015, Review Office confirmed that there was no entitlement to medical aid and wage loss benefits as it was unable to establish a relationship between the worker's ongoing right arm/elbow symptoms and the February 27, 2015 workplace accident.

On August 12, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

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 39(2) of the Act provides that wage loss benefits will be paid until the loss of earning ends. Subsection 27(1) provides that medial aid will be paid by WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s Position

The worker’s position is that the claim is acceptable and she is entitled to benefits beyond the date of the accident. She noted that her injury took place in an off-site work location and in the course of demonstrating to a student how to lift and move batteries.

In her submission to the panel and in response to the panel’s questions, she described the mechanism of injury, noting that she reported the injury to her supervisor at the end of the day when she returned to the main site. In the weeks following the injury, her symptoms progressively worsened and ultimately, she sought medical care. On the recommendation of her physician, she treated the injury with physiotherapy but found it didn’t help. She used a brace on her right elbow and favoured her left arm as she worked, to the extent possible.

The worker noted that she took a few sick days as a result of the injury in May 2015 but soon returned to work. She indicated that her supervisor had always been aware of her ongoing difficulties but was away from work for medical reasons. He did finally provide an email which confirmed her ongoing complaints.

The worker submitted that the appeal should be allowed as the workplace injury on February 27, 2015 was accepted by the WCB and the effects of that injury continued as of the date of her claim.

Employer's Position

The employer did not participate in the appeal.

Analysis and Decision

To find that the worker is entitled to benefits beyond the date of the accident, the panel must find on a balance of probabilities that at that time, the worker continued to suffer personal injury as a result of an accident arising out of and in the course of employment that would require medical aid or cause her to suffer a loss of earning capacity after that date.

In the course of her submission and in answering the questions of the panel, the worker demonstrated and described for the panel how the injury occurred. She explained that at the time of the injury, she was lifting a heavy battery from knee level using both arms in a straightened position and her upper body in a stooped position. As she lifted, her attention was drawn to the student working near her causing her head to turn right and her right arm and wrist to turn left. She noted what she described as a “click” but did not have any pain at that time. She carried on with her duties through the balance of the day and informed her supervisor of this incident at the end of the day.

The worker noted that she does similar lifting most workdays, but that the items lifted and their weights vary widely. In the weeks that followed this incident, the worker continued with her job duties and noted that her right arm became progressively more painful. As a result, she relied increasingly upon her left arm to compensate. She explained that at one point she couldn’t pick up a toothbrush or use her right hand at all.

The medical reports on file confirm that the worker obtained medical care for an injury to her right arm on April 13, 2015. The worker reported increasing pain that she had been treating with ice and heat. Her physician diagnosed the injury as right lateral epicondylitis, prescribed medication and recommended she use an elbow support and seek physiotherapy treatment. No x-rays were taken.

On questioning, the worker explained her statement to the WCB adjudicator on April 27, 2015 with respect to rolling on her arm. She noted that she believed the injury was not improving because she would roll onto that arm in the night, but that she did not attribute the ongoing complaints as being caused by her sleeping position.

At the earlier instances of decision making, there was concern that the evidence did not support a link between the injury of February 27, 2015 and the claim made on April 14, 2015. This concern arose from the fact that the employer was not able to confirm the information provided by the worker either through evidence of her coworkers or her direct supervisor, who was away on a medical leave.

The panel reviewed an email on file from the worker’s supervisor, provided to the WCB on October 26, 2015, subsequent to the Review Office decision. This document helped to fill in the gap between February 27, 2015 and April 13, 2015 when the worker first sought medical attention. The supervisor confirmed the tasks assigned to the worker during the period leading up to and following the injury to her arm and that he advised her to seek physiotherapy as she needed to be able to use her injured arm to do her job. The supervisor confirmed that there was no pre-existing injury and that the injury occurred as a result of and in the course of the worker’s employment duties.

In the panel's view, the evidence of the supervisor, not available to the adjudicator or the Review Office lends support to the worker’s position that there was continuity between the injury that occurred on February 27, 2015 and the injury for which the worker sought medical attention on April 13, 2015 and made a claim to WCB on April 14, 2015.

The panel further finds that the mechanism of injury as described to the panel by the worker and as set out in the medical reports on file is consistent with the diagnosed injury of right lateral epicondylitis.

In considering whether the worker continued to suffer personal injury as a result of the accident of February 27, 2015 after the date of the accident, the panel gives significant weight to the email evidence from the worker’s supervisor. This evidence is consistent with the worker’s own evidence in support of her claim for wage loss and medical aid benefits beyond the date of the accident.

Based upon the totality of the evidence before us, we find, on a balance of probabilities that the worker continued to suffer personal injury as a result of an accident arising out of and in the course of employment that would require medical aid or cause her to suffer a loss of earnings after that date. The worker is therefore entitled to wage loss and medical aid benefits beyond the date of accident.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 5th day of February, 2016