The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was insufficient evidence to support that she suffered a work related accident on August 4, 2016. A hearing was held on June 22, 2017 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB on August 22, 2016 for an injury to her right shoulder and left elbow that occurred at work on August 4, 2016. The worker reported that she was moving a heavy box when the accident occurred and that the box contained books and records. She did not know the weight of the box. The worker noted that she reported the injury to her employer on August 11, 2016, as she thought her injury would get better on its own and her boss was on holidays that week.

Information obtained from the employer was that the worker did not report an incident. The worker called on August 11, 2016 to advise that she was going on sick leave because of tennis elbow which was diagnosed by a pharmacist. The worker advised that because of her tennis elbow, she was unable to perform her duties such as vacuuming and that her pharmacist told her to take two weeks to rest. The employer's pay and benefits consultant stated that she had a long discussion with the worker regarding arthritis, bursitis and ageing.

In a doctor's first report dated August 15, 2016, the family physician described the accident or injury as "hurt arms lifting client." The diagnosis outlined was a right rotator cuff strain and left tennis elbow.

On August 24, 2016, the worker was seen by a physiotherapist for an initial assessment. The worker's description of injury was "Was lifting a heavy box from floor onto a bed and felt pain to R shoulder and left arm." The diagnosis was right shoulder strain and left lateral epicondylitis.

The worker discussed her claim with a WCB adjudicator on August 25, 2016. The worker stated that she picked up the box off the ground with both hands and placed the box on the shelf which was a bit higher above her head. She felt a pull in her right shoulder and then the left elbow became sorer while she was still at work. The injury happened in the afternoon after 2:00 p.m. and she worked until 4:00 p.m. She works 8 a.m. to 4 p.m. shifts. The box was pretty heavy. It was full of books and records and she was not sure of the weight.

The worker said she delayed in reporting the injury to her employer because her supervisor was away all week. She did not know to whom to report the injury. She assumed it was a pulled muscle and thought it would get better. On August 10, 2016 her shoulder and elbow continued to bother her so she called the supervisor on August 11, 2016. She told the supervisor that she injured her arm and shoulder at work, and the supervisor told her to take the rest of the day off and to go and see a doctor.

The worker advised she sought medical treatment on August 15, 2016. She said the doctor asked her how she hurt herself and she said she hurt herself at work. The doctor did not ask specifically what she does at work.

The worker noted that August 5 to 9 inclusive were her days off and she worked a full shift on August 10. On August 11, she worked from 8 to 1 p.m. and has been off since. The worker said she was pretty sore on August 5 to 9 and she self-treated prior to seeking medical treatment with a heating pad.

In a decision dated September 7, 2016, Compensation Services advised the worker that her claim for compensation was denied as the WCB was unable to establish that a work-related accident occurred on August 4, 2016. The decision was based on the delays in seeking medical care, injury reporting and inconsistencies in the mechanism of injury reported to the employer, doctor and physiotherapist. On October 11, 2016, a worker advisor appealed the decision to Review Office.

On December 13, 2016, Review Office determined that the claim for compensation was not acceptable. Review Office referred to the arguments put forth by the worker advisor in her submission of October 11, 2016 and it referred to specific file information to support its findings that there was insufficient evidence to support that the worker sustained an accident on August 4, 2016 as defined in subsection 1(1) of the Act. On January 19, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on June 22, 2017.

Following the hearing, the appeal panel met to discuss the case and requested that additional information be obtained from the employer, the attending physician and the treating physiotherapist prior to making a final decision. The requested information was later received and was forwarded to the interested parties for comment. On September 6, 2017, the panel met further to discuss the case and to render its decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB’s Board of Directors.

Subsection 4(1) of the Act provides that 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.

“Accident” is defined in subsection 1(1) of the Act as follows:

“accident” means a chance event occasioned by a physical or natural cause and includes

(a) a willful 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.

The Worker’s Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker’s position was that the evidence supported that she experienced a right shoulder and left elbow injury on August 4, 2016, as a result of a workplace accident, and her claim should be accepted.

It was submitted that the worker would have reported the injury immediately but did not know to whom to report it as her supervisor was away. She also initially thought the injury was simply a pulled muscle and would improve. When she spoke to her employer the following week, she mentioned that she had injured herself and was advised to see a doctor, which she proceeded to do. The doctor recorded her report that she sustained an injury at work and referred her to physiotherapy.

The worker further submitted that there was consistency in terms of reporting. She consistently described the mechanism of injury as occurring when she moved a box. The first report of the physiotherapist confirmed the reporting of an accident and the mechanism of injury was consistent with the worker’s report.

Employer’s Position

The employer’s representative submitted that the claim should be denied. The employer relied on the fact that there were delays in seeking medical care, delays in reporting the injury and inconsistencies in the mechanism of injury reported to the employer, the doctor and the physiotherapist. The employer insisted that the worker had ample opportunity to report the claim more quickly than she did, but failed to do so and initially advised her employer only that she should be off sick, not that she had injured herself at work. The actual report to WCB was not made until weeks after the injury itself and was only submitted when prompted to do so by the WCB.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment. For the reasons that follow, the panel is able to make that finding.

The worker provided a description of events on the day of her injury and described the mechanism of injury. Although she did not know the weight of the box she was trying to lift, she described it as full of books and records and as being "pretty heavy." She said she picked it up with both hands off the ground and attempted to place it on a shelf that was above her head. She described immediately feeling a pull in her right shoulder and pain in her left arm. Over the course of the day her left elbow also became sore.

The worker said she assumed she had pulled a muscle and thought it would improve on its own over time. She did not immediately report it to her supervisor as her immediate supervisor was away for the week. When the injury did not heal on its own as the worker had hoped, she contacted her supervisor the following week and reported the injury to her. The supervisor advised her to see a doctor.

The report to the supervisor was made August 11, 2016. The worker attended her doctor’s office on August 15, 2016. She reported her injury as stemming from an incident "at work." Her doctor referred her to physiotherapy. The physiotherapist recorded her description of injury as occurring after lifting a heavy box from the floor to a bed.

The worker stated that this was her first time filing a claim and that she was not familiar with the process and reporting procedures.

Although the panel noted inconsistencies, or wording differences, in some of the employer’s reports, the panel finds that these inconsistencies in reporting by the worker were not enough to dissuade the panel. The panel finds, rather, based on our review of all of the evidence before us, that there was a continuity of symptoms and description of the mechanism of injury which was consistent with the diagnoses of a right rotator cuff strain and left lateral epicondylitis. While there are small discrepancies in reporting by the worker, the panel found the worker's evidence overall to be credible.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a right shoulder and left elbow injury arising out of and in the course of her employment on August 4, 2016. The worker’s claim is therefore acceptable and the appeal is allowed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of October, 2017