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MEMORANDUM 409/90. DATE: August 23, 1990 ALL WCAT STAFF SUBJECT: DECISION NO. 409/90. Accident (occurrence) - Delay (reporting injury).

MEMORANDUM 409/90 DATE: August 23, 1990 TYPE: A TO: ALL WCAT STAFF SUBJECT: DECISION NO. 409/90 Accident (occurrence) - Delay (reporting injury). The worker appealed a decision of the Hearings Officer
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MEMORANDUM 409/90 DATE: August 23, 1990 TYPE: A TO: ALL WCAT STAFF SUBJECT: DECISION NO. 409/90 Accident (occurrence) - Delay (reporting injury). The worker appealed a decision of the Hearings Officer denying entitlement for a shoulder condition, which the worker claimed resulted from moving a heavy piece of equipment. Although there was a delay of about one week in reporting the injury, there was corroborative evidence that the worker lifted the equipment, felt a sharp pain in his shoulder and let the equipment fall to the ground. There was no other credible explanation for the worker's condition. The appeal was allowed. [7 pages] Panel: Lax Cook Barbeau Date: 22/08/90 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 409/90 This appeal was heard in Toronto on June 1, 1990, by a Tribunal Panel consisting of: J.L. Lax : Vice-Chairman, P. Barbeau: Member representative of employers, B. Cook : Member representative of workers. THE APPEAL PROCEEDINGS This is an appeal by the worker from a decision of the Hearings Officer dated May 12, 1989, denying the worker entitlement to compensation benefits for an injury to his left shoulder on the basis that the injury did not arise from a work accident. THE EVIDENCE The worker appeared and was represented at the hearing by J. de Winter of the Office of the Worker Adviser. The employer appeared and was represented by M. Raymond of L.A. Liversidge and Associates Limited, management consultants. The Panel heard oral testimony under oath from the worker and from a co-worker called on his behalf. We also heard evidence from the job foreman called on behalf of the employer. We reviewed the Case Description materials and two Addenda consisting of documents from the Board's file. These were marked as exhibits. We also received a copy of the Doctor's First Report at the hearing which was also marked as an exhibit. THE NATURE OF THE CASE The worker claims to have suffered an accident at work on September 18, 1987, which has given rise to a left shoulder disability. There was a short delay in reporting and seeking of medical attention, but the worker has subsequently undergone extensive medical investigation to identify and treat this problem. The Hearings Officer denied initial entitlement on the basis that the worker's testimony was not corroborated. This, together with the delay in reporting and seeking of medical attention led the Hearings Officer to conclude that the worker had not established that his left shoulder injury occurred as a result of a work accident on September 18, The issue for the Panel is whether or not there was a work accident on September 18, 1987, which has caused the worker's left shoulder disability. THE PANEL'S REASONS The worker began working for the accident employer as a general labourer in the summer of 1987, several weeks before the event giving rise to this 2 appeal. Previously, he had performed similar duties for another employer. His normal duties consisted of digging holes and laying of telephone cables. He was also responsible for cleaning up the tools and equipment and returning them to the truck at the end of the day. In order to lay telephone cable, it is necessary to dig holes about three to four feet deep and three to four feet in diameter. A tool, called a torpedo , is then laid down in the hole. A torpedo is a hollow cylindrical tube with a weight inside it. It is attached to an air compressor and is used to break through the ground to create a passageway for the cable. There are apparently three sizes of torpedoes, the smallest weighing about five kilos and the largest weighing about 45 kilos. On the day in question, the largest torpedo had been used. The worker picked it up with both hands to return it to the truck, but in view of its weight, could not maintain a grip with his hands. He rested it against his shoulder which caused the weight inside the torpedo to slide down. At that moment, the worker felt a pain at the back of his shoulder. He allowed the torpedo to slide off his shoulder to the ground. There is some inconsistency in the evidence as to what happened next. According to the worker's testimony, a co-worker came running toward him and asked if he was okay. The co-worker denies this but acknowledged both in a written statement and in his evidence before us that he did see the torpedo slide off the worker's shoulder and fall to the ground. The worker says that driving home from the job site that day, he complained about pain in his shoulder and that the co-worker advised him not to report the accident, but to wait and see if the pain goes away. The co-worker denies giving such advice, but recalls the worker telling him that he hurt his shoulder when he picked up the torpedo. September 18, 1987, was a Friday. The worker had no clear recollection of his activities over the weekend although he did recall that he was in pain. On Monday the worker returned to the job site. The worker recalls that on that particular day the work was particularly strenuous as they were laying heavy cable. This is corroborated by the foreman who testified at the hearing on behalf of the employer. The worker made no complaint to the foreman on that day and continued to work without complaint to the foreman for the next three days. The co-worker recalls that the worker did complain about his left shoulder on each of those days. On Thursday, September 24, the worker told the foreman for the first time that he had injured himself the previous Friday and that he could not come to work that day. The foreman found this information surprising since the worker had appeared to him to be fine during the previous days. The worker visited his family physician, Dr. L.P. Kramer, on September 24, The worker claims that he reported the work accident to his doctor on that visit, but there is no reference to a work accident in the doctor's notes of that visit. At the hearing, the worker stated that the doctor had completed a Form 8. For reasons which are not entirely clear to us, this document was not included in the Case Description materials and the employer's representative did not think he had seen it in the documents released to him from the Board file. The worker's representative was able to produce a copy of it from his own file and on consent, it was received as an exhibit at the hearing. The Form 8 discloses a history of injury consistent with the worker's testimony. We therefore attach little weight to the fact 3 that the doctor's chart for September 24, 1987, makes no reference to the work accident. The worker returned to Dr. Kramer for a second visit on September 28, The doctor's note of this visit does record a history of accident. We accept the worker's evidence that he gave an accident history to Dr. Kramer when he first saw him on September 24, 1987, and believe that this was not included in his note through inadvertence. The worker's injury was initially diagnosed as a left scapula injury and treated conservatively with pain medication and rest. In October 1987 he was referred for physiotherapy and ultimately was seen by an orthopaedic specialist, Stephen J. Ritchie in December. Dr. Ritchie suspected a pulled trapezius muscle. The shoulder was injected in January 1988 and again in February with no relief. A further orthopaedic assessment with Dr. M.G. Rock of University Hospital in London was arranged for April Dr. Rock was concerned to ensure that the worker's scapula was appropriately aligned and ordered a CAT scan which was negative. Dr. Rock noted some unusual clicking noises in behind the scapula and along the chest wall but was at a loss to explain this. Dr. Rock referred him on to Dr. Hawkins at St. Joseph's Health Centre. However, the consultation was taken by Dr. William Regan. In Dr. Regan's report to Dr. Kramer dated October 5, 1988, he reports: DIAGNOSIS: 1. Possible tear of the trapezius in the medial aspect. 2. Possible superior angle bursitis. 3. Possible nerve traction injury to trapezius causing dyskinetic movements of the scapulothoracic region. DISPOSITION: He has had one injection into this area and I am going to repeat it to see if we can alleviate his pain. At this point we will at least know if, indeed, it is emanating from a possible tear of the trapezius. Following this the only logical solution is exploration of this area if, indeed, we are able to relieve his pain with an injection. He is certainly unable to work at this time as he has marked pain to palpation over that area and is completely unable to lift objects... On October 24, 1988, the worker was injected and asked to return in eight weeks time. Dr. Regan's consultation report of August 2, 1989, is as follows: We reviewed [the worker] in the out-patient clinic on the 31st of July, He does continue to have pain over his medial border of his scapula with crepitation as he protracts and retracts his scapula. His E.M.G. studies do not demonstrate any nerve entrapment problem. This is a scapulo thoracic bursitis which is very difficult to manage operatively. Since he has failed all 4 conservative modalities, we have offered him a chance by resecting the superomedial border of his scapula and the bursa. He is going to think about the above procedure, but I do not feel he will have much chance at getting back to heavy labour without this done and even with surgery, he only has approximately a 50% chance of success. I do feel he understands the significance of this injury and he will get back to us if indeed he wants to go ahead with surgical intervention. The worker made one attempt to return to employment in the summer of 1988 when he accepted a job priming tobacco. He was unable to continue with this employment. In November 1989, he returned to employment as a general labourer, although his duties do not involve any heavy lifting. He continues to be in pain but has decided against surgery. Both the co-worker and the foreman signed written statements to the effect that they had no knowledge that the worker hurt himself on the job on September 18, However, the co-worker also provided two additional written statements which corroborate in part the worker's account of the events which took place on September 18, At the hearing, the co-worker was invited to explain these apparently inconsistent statements. The co-worker did not agree that they were inconsistent. Rather, he explained that he was not a doctor and therefore could not know whether or not the worker had injured himself on the day in question. For this reason, he was prepared to sign a statement that he had no knowledge that the worker hurt himself on the job. He did however see the worker drop the torpedo off his shoulder and he did hear the worker complain about a sore shoulder. He did not however actually see the worker lift the torpedo and said so. While it is true that the worker's evidence that he lifted the heavy torpedo is uncorroborated, we find that all other aspects of this incident are corroborated. If the co-worker saw the torpedo fall off the worker's shoulder, there can be no other inference from the evidence except that the worker picked it up. Further, we agree with the co-worker that his statements are not inconsistent. Rather, they record what he observed (i.e. the torpedo falling off the worker's shoulder) and what he heard (i.e. the worker's complaints of a sore shoulder). The co-worker was unwilling to conclude that an injury had occurred because he did not feel capable of establishing this. In our view, this has been established by the medical evidence, some of which has been referred to above. In summary, the evidence establishes the following: - the worker lifted a torpedo weighing close to 100 lbs. on September 18, 1987, and rested it against his shoulder; - the worker felt a sharp pain in his shoulder and had to let the torpedo fall to the ground; - a co-worker observed the torpedo falling to the ground; - the worker complained to the co-worker that his shoulder hurt and made continued complaints of shoulder pain on the three days he worked following this incident; 5 - the worker visited his family doctor on September 24, and there were physical findings of a shoulder injury. In this case, we do not find the delay in reporting the accident and the delay in seeking medical attention to be significant. The worker is a general labourer and told us that he often has aches and pains as a result of his work. He acknowledged that he knew the procedure for reporting accidents, but explained that he hoped and expected that the shoulder pain would go away. When it did not, he consulted his doctor. It is possible that the strenuous work which was performed on the Monday following the incident, exacerbated the worker's condition. It is also possible that the worker did not experience the full effect of the pulled muscle until several days later. We appreciate that the employer is not obliged to prove that there was no accident, the onus resting on the worker to prove that there was. However, the employer has been unable to suggest a credible explanation for the worker's injury. It seems to us that in order to find against the worker in this case, we would have to rely on one of the following theories: 1. That there is nothing wrong with the worker's shoulder and he fabricated the entire incident. We reject this as the medical evidence clearly establishes that the worker has a left shoulder injury and that this injury could reasonably have occurred as a result of lifting a 100 lb. torpedo as the worker claims. Further, we found the worker to be credible. Although there are inconsistencies in some of his evidence, we find that these inconsistencies are explained through faulty recollection due to the passage of time. It was pointed out that there were some details of the worker's evidence which were inconsistent with evidence given at the hearing before the Hearings Officer. We find it reasonable that the worker would have recollected details at the time of the first hearing differently in that this hearing was closer in time to the event. In any case, none of the differences in evidence were on significant points and we accept the worker's account of the events of September 18, That the worker's injury did not occur as a result of a work accident. There was some suggestion in the Case Description materials, and particularly in the notes of the Board Investigator, that the worker played soccer competitively and could have injured his shoulder through a sports injury rather than the work injury he claims. The worker's representative questioned the worker on this point and we were told that he does not play soccer competitively, although from time to time he had participated in a recreational pick up game. The employer's representative did not question the worker at all on this point and the weight of evidence does not support this theory. In order to find that the worker's injury was caused in this way, we would have to entirely disbelieve the account of the accident given to us by the worker and corroborated, at least in part, by the co-worker. The evidence does not support this. 3. That the worker's shoulder injury is as a result of an underlying condition and was not caused by the accident on September 18, There is simply no evidence that the worker had any problems with his left shoulder prior to the day he lifted the heavy torpedo. Dr. Kramer 6 had been his family physician for four or five years prior and we would expect there to be some reference to this in the medical reports. There is simply no medical or other evidence that the worker's current injury arose as a result of a pre-existing condition. For all the above reasons, we are satisfied that the worker has shown that he sustained a work accident on September 18, 1987, as a result of lifting a heavy torpedo which caused his left shoulder disability. THE DECISION The appeal is allowed. DATED at Toronto, this 22nd day of August, SIGNED: J.L. Lax, P. Barbeau, B. Cook.
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