The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for a right shoulder injury occurring on August 25, 2011 was not acceptable. A hearing was held on October 31, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on July 21, 2016 for a right shoulder injury that occurred on August 25, 2011. The worker reported that he used a sledgehammer repetitively on August 25 when he noticed a ripping pain and popping sound in his right shoulder. The worker noted that he reported the injury to his supervisor but did not report it to a doctor. He said his employer had documentation as to what they did that day at work. They were contracted to work in another province for approximately three months. He said he took a day off to rest as he couldn't move his shoulder and that he was placed on light duties for three to four days. Once his shoulder settled down, he was able to use it for about 83%. He said his shoulder never felt perfect afterwards.

The Employer's Accident Report dated August 12, 2016 indicated that a right shoulder injury occurring on August 25, 2011 was not reported by the worker.

A Doctor First Report for an examination on July 29, 2016 indicated that the worker complained of "shoulder pain since five years, back of shoulder, hearing clic (sic) when he moves joint." The diagnosis was right shoulder pain.

On August 3, 2016, a WCB adjudicator contacted the worker to discuss his claim. The worker advised that he did not seek medical treatment between August 25, 2011 and July 29, 2016 for his right shoulder and that he had been off work since 2012. The worker stated that his right shoulder had always caused him problems. Since he started rehabbing his left shoulder (worker has a WCB claim for his left shoulder), his right shoulder had become more aggravated. He did not see a doctor because of his lack of confidence in the Canadian medical system, as he had to go to Germany to get his left shoulder properly diagnosed. The worker said he was injured because he was overworking his right shoulder from his left shoulder problems.

On October 11, 2016, Compensation Services determined that the worker's claim was not acceptable as it was unable to establish that an accident arising out of and in the course of his employment occurred on August 25, 2011. The decision was based on the findings that a work injury was not reported to the employer on August 25, 2011 and the worker's significant delay in obtaining medical treatment.

On October 17, 2016, the worker appealed the decision of October 11, 2016 to Review Office. The employer provided Review Office with a submission dated December 8, 2016, for consideration.

On January 9, 2017, Review Office confirmed that the claim was not acceptable.

Review Office referred to the worker's accident description as noted on the Worker Incident Report. Review Office indicated that the description was more in keeping with an acute or sudden injury, than a repetitive-use scenario as was also suggested by the worker. Acute injuries usually require immediate medical intervention, however, the worker did not see a doctor at that time.

Review Office referred to the August 3, 2016 telephone conversation between the worker and the WCB adjudicator. In light of the contradictions as they related to possible causes of injury, i.e. repetitive-use vs. sledgehammer, vs. overuse due to a left shoulder problem, Review Office found it difficult to place much weight on the worker's recall of events. Weight was also given to the employer's inability to confirm the worker reported an injury, and the lack of medical follow-up at the time he said he was hurt.

On May 3, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

"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 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 self-represented and participated in the hearing by teleconference.

The worker's position was that he suffered a right shoulder injury while working for the employer, and his claim should be accepted.

In response to questions from the panel, the worker said he believed he worked for the employer from August 2011 to June 2012, and that he hurt his shoulder about 3 to 4 months into his employment, or more towards the end of his employment, while they were working in another province. He said he was hired to do "kind of whatever needed to be done."

The worker said that on the day he was injured he was pounding pegs with a sledgehammer for basically the whole day. He estimated that the sledgehammer weighed 10 pounds and he would have pounded 50 to 60 pegs that day for a cement pad. The worker said that his right shoulder started to hurt around lunchtime. It felt like something ripped, just like what had happened to his left shoulder previously. He was working with the supervisor and mentioned it to him at the time.

The worker said he believes that he continued working that afternoon. He did not work the next day, then went back to light duty, which involved cleaning and basically doing nothing for 2 to 3 days. After that, he tried regular duties, working through his injury for another 6 months. He then went to work for another employer, and did residential and commercial renovations, including shingling, until that business shut down 2 weeks later. He tried driving truck for about one month in February 2013, but has not worked since then. He said that he has spent his time basically trying to look after his health, which included having the left shoulder surgery outside the country.

The worker said that he realized he should have reported his injury that day and sought medical help for his right shoulder injury. He said he did not do so because he was frustrated with the health care system, which had not helped him with his left shoulder injury. He saw a physiotherapist about 2 months after his left shoulder surgery in July 2015, and was hoping the right shoulder would get fixed through physiotherapy, but the physiotherapist said he should see a doctor for his right shoulder.

The worker said that since then he has been seeing numerous doctors and specialists who are trying to figure out what is wrong with his shoulder. He said that no one has provided a medical diagnosis of the condition in his right shoulder yet, but he thinks the problem in his right shoulder is the same as what occurred in his left shoulder, for which he was ultimately diagnosed and surgery was performed outside the country. He said his doctors are currently looking into whether the same surgery can be performed here for his left shoulder.

The worker confirmed that he considered the original injury to be an acute injury caused by the sledgehammer work on the day in question; and the other job duties just kept aggravating his injury afterwards.

Employer's Position

The employer was represented at the hearing by its owner, who was accompanied by a supervisor and another worker.

The owner said that the worker was hired primarily to drive the supervisor and to clean up around the work sites. The employer was informed of the previous injury and the worker had signed a letter indicating that the injury would not affect him if he was hired. The employer believed that the worker's duties were easy ones which the worker could do, and would not be too strenuous for him. The employer was not aware of any problems that occurred. No incident report was ever filed, and no doctor's report was ever provided.

In response to questions from the panel, the supervisor similarly stated that the worker's duties were not strenuous, and involved cleaning up, sweeping and getting supplies and tools as needed. The supervisor said that they had to work in teams; that he always worked with the worker, and the worker never injured himself on the job. He did not recall the worker reporting any injury or having any time loss.

The supervisor said the worker worked for the employer for 8 or 9 months, and the out of province work referred to by the worker started about half way through the worker's employment. He said that the worker was not doing sledgehammer work as he described, or at all. He did recall doing sleepers for grading, where the worker was doing high shots, with an air nailer. The supervisor said that they were doing curbs inside for 2 months until the end of December, and never worked outside all winter. They were using a nail gun to do the curbs and were not using a sledge hammer for that whole 2 month period.

Analysis

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

Information on file, as confirmed at the hearing, establishes that while the worker relies on an acute injury to his right shoulder occurring in 2011, he did not seek medical attention immediately or at any time within the next 5 years for any such right shoulder injury. The First Doctor Report on file relates to an examination on July 29, 2016 and the diagnosis is "right shoulder pain." In the panel's view, this failure to seek medical attention suggests that a work accident did not in fact occur, and at the very least, makes it very difficult to determine what, if any, work injury may have occurred at that time.

The panel further notes that there is a lack of evidence of any acute injury or obvious symptoms at the time, and nothing to connect any such injury to swinging a sledgehammer. While the worker said that he mentioned having hurt himself to the supervisor, the supervisor's evidence was that no injury was ever reported. In his evidence at the hearing, the worker described swinging a sledgehammer 50 to 60 times on the day in question. The evidence of the supervisor with whom he was working, however, was that the worker was not supposed to touch a sledgehammer and would not have been using one for the work he would have been doing. Based on the evidence before us, and given the worker's indication that he already had significant problems with his left shoulder, the panel finds it improbable that he would have been able to swing a sledgehammer in 2011.

The panel also notes the worker's evidence at the hearing that he was generally able to continue working after his injury. He said the injury occurred around lunchtime, and that he thought he worked the rest of the afternoon. According to the worker, he took the next day off, worked 2 to 3 days on light duties, then continued working for the employer for another 6 months. He said he tried to do his regular duties and believes he went back to pegging at some point, but was otherwise unable to indicate what work he was doing. Immediately after his job with the employer ended, the worker went to work for another employer doing renovations. There is nothing to indicate that the worker was not able to do any of the renovation work. According to the worker, this included shingling, which is physically demanding work. In the panel's view, the worker's ability to continue working during this period of time further indicates that he did not suffer a major shoulder injury at work.

In the panel's view, contemporaneous medical information which appears on the worker's 2003 claim file for a left shoulder injury also supports that the worker did not suffer a work injury to his right shoulder. The panel places particular weight on a report from a pain management clinic dated November 14, 2014, in which the consulting physician stated, based on his physical examination of the worker, that the worker had "normal range of motion of his right shoulder," and that "strength of all muscle groups except for the left shoulder which he is reluctant to use was normal."

Overall, the panel notes that both the worker and the employer representatives acknowledged a certain inability to remember what happened 6 years ago. The panel found the worker generally to be a poor historian, including with respect to when and what he was doing at various times. The panel would indicate that while the delay in seeking medical attention and filing a claim are not necessarily fatal to a claim, they are certainly factors which enter into establishing and weighing the evidence.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of December, 2017