Decision #153/19 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A hearing was held on November 27, 2019 to consider the employer's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The employer submitted an Employer Injury Report to the WCB on April 2, 2018 reporting that the worker injured her right upper arm at work on March 22, 2018, described as follows:
Employee overextended her bicep cleaning tape off the wall. Did not effect (sic) her until the next day. Went to physio and doctor the following week for treatment.
The worker provided an incident report to the WCB on April 6, 2018, noting that she performed this task "…on and off for a couple of hours" on March 22, 2018. She stated "My arm felt fine at the end of the day, but when I woke up the next morning my arm was very sore and stiff. When I moved my arm in certain positions the pain was too great. I could not put on a t-shirt."
At an initial assessment with a physiotherapist on March 26, 2018, the worker was diagnosed with a right biceps strain with rotator cuff involvement. The physiotherapist noted the worker's complaints of pain and weakness in her right arm and shoulder arose after repetitive cleaning for hours with awkward movements in small spaces. Recommended restrictions were no lifting over three pounds on the right side, no lifting more than ten pounds with both hands and breaks to rest and stretch throughout a shift.
On March 27, 2018, the worker attended an appointment with a family physician. She advised that she started having pain to her right arm and shoulder after removing tape from the wall. She further advised that she had mild pain on the date of injury and woke up the next day in a lot of discomfort and that her pain was from her right shoulder to her right elbow with her range of motion being very limited. The physician noted there was no swelling in the worker's right shoulder and that she had pain at her bicep tendon, was tender along her bicep muscle and her right shoulder range of motion was limited to 30% abduction and flexion. The physician recommended the worker remain off work.
The worker attended for a follow-up appointment with her family physician on April 4, 2018. At that time, the physician noted that the worker's right arm pain had "…dramatically improved" but she was not at full function or strength yet. Recommended restrictions were to avoid lifting objects greater than ten pounds with her right arm, avoid activities using repetitive right arm and avoid activities requiring use of right arm/hand above shoulder level for two weeks.
In a discussion with the WCB adjudicator on April 6, 2018, the worker confirmed the mechanism of her injury and that her symptoms got progressively worse over the weekend. She advised that she contacted the manager at her workplace to advise she was injured and would be seeking medical treatment. The WCB confirmed this information with the manager and accepted the worker's claim on April 6, 2018.
On July 26, 2018, the worker attended a call-in examination with a WCB medical advisor. The WCB medical advisor determined, based on the examination of the worker, that the compensable right biceps strain had materially healed.
On August 24, 2018, the WCB advised the worker she was not entitled to further wage loss or medical aid after August 30, 2018.
The WCB received a Discharge Report from the worker's treating physiotherapist on September 7, 2018 noting that the worker had fully recovered from her injury.
The employer requested reconsideration of the WCB's April 6, 2018 decision to accept the worker's claim to Review Office on October 5, 2018.
Review Office determined the worker's claim was acceptable on January 4, 2019. Review Office found that the job duties the worker performed on March 22, 2018 were not her normal job duties and that the awkward positions the worker was in during those job duties caused an upper right arm injury. Further, Review Office was unable to find any medical evidence on the worker's file to support that she had a pre-existing condition in her right upper arm. Therefore, Review Office found that the worker suffered an injury arising out of and in the course of her employment and her claim was acceptable.
The employer filed an appeal with the Appeal Commission May 14, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
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.
Section 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 s 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,
(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.
WCB Policy 18.104.22.168, Pre-existing Conditions addresses the issue of pre-existing conditions when administering benefits. The policy states that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The employer appeared on his own behalf. He provided an oral submission to the panel and answered questions of members of the panel.
The employer stated his position that the worker's claim should not be accepted because she has a pre-existing injury in her shoulder that led to or contributed to her injury on March 22, 2018.
The employer confirmed that the worker was involved in removing posters and peeling tape off a wall in the workplace over the course of her shift on March 22, 2018. He noted that she worked for 4.25 hours that day together with 3 other employees and undertook her normal work duties as well as participating in the task that is the subject of the worker's claim. The employer confirmed that there is no concern that the incident occurred or that the worker was injured.
The employer clarified to the panel, the employer's primary concern is that the WCB will charge the employer for costs associated with this claim even though the worker had a pre-existing injury that, the employer alleges, caused or contributed to the worker's injury on March 22, 2018. He believed that the WCB should amend the Policy so as to provide relief to employers if employees that have pre-existing conditions have an injury at a subsequent employer.
The worker did not participate in the appeal.
The question before the panel is whether or not the worker's claim is acceptable. For the employer's appeal to be successful, the panel would have to find that the worker was not injured as a result of an accident that occurred on March 22, 2018 arising out of and in the course of her employment. The panel was not able to make that finding.
The evidence supports the worker's assertion that on March 22, 2018, as a result of her efforts at work to remove posters and tape from a wall, she hurt her right upper arm. The employer confirmed to the panel that the worker was involved in this activity on that day. The worker reported the injury to her employer the next day and asked for her next shift to be covered by another employee. The worker reported to her treating physiotherapist and family physician the same mechanism of injury as later described to the WCB.
The employer raised the question of whether or not the worker had a pre-existing injury that caused or contributed to the injury arising out of the incident of March 22, 2018. He noted that the worker had told another employee about a rotator cuff injury she incurred some ten years earlier in the course of receiving chiropractic treatment. The worker, when questioned about this by the WCB adjudicator stated that she injured her rotator cuff through a chiropractic adjustment about 20 years earlier and that it bothered her for one day until it was readjusted by the chiropractor the next day. She confirmed that she had not experienced any difficulties with her rotator cuff since then.
The panel noted that on July 26, 2018, the WCB accepted a diagnosis of a mild right biceps strain on the basis of the treating physician's report and its own call-in examination of the worker. The WCB sport medicine advisor noted that based on the mechanism of injury it is possible that an initial diagnosis of rotator cuff impingement was apparent, however this was not noted by the treating physician and was not evident at the call-in examination. The claim was accepted by the WCB on the diagnosis of a right biceps strain, which was determined to be "materially healed" at the time of the call-in examination. The pre-existing rotator cuff injury was not related to the accepted compensable diagnosis.
On the basis of the evidence on file, the panel is satisfied on a balance of probabilities that the worker was involved in an accident in the course of her employment on March 22, 2018 that resulted in an injury to her right bicep. The claim is therefore acceptable.
The employer's appeal is denied.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of December, 2019