APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230028
OBJECTING PARTY:
worker
REPRESENTED by:
worker REPRESENTATIVE
RESPONDENT:
employer, not participating
HEARING:
HEARING IN WRITING
HEARD by: c. goegan, appeals resolution officer
ISSUES
The worker is objecting to the June 3, 2021 decision of the Eligibility Adjudicator denying initial entitlement to a right forearm and biceps strain.
BACKGROUND
On April 13, 2021, this then-52-year-old rural and suburban mail carrier reported to the employer that they removed a large, heavy parcel from their delivery vehicle by using their right hand to support the bottom of the parcel and their left hand to support the top. The worker reported they felt something shift inside the parcel, which caught them off guard and they felt a pulling sensation between their right forearm and biceps.
The worker continued their regular job duties and sought attention on May 19, 2021. A nurse practitioner diagnosed a soft tissue injury (strain/sprain) with possible partial or complete ligament tears of the right elbow and forearm. In the June 3, 2021 decision, the Eligibility Adjudicator denied initial entitlement based on the worker’s delay in seeking medical attention while continuing regular job duties. The Eligibility Adjudicator reconsidered and upheld the denial of initial entitlement on October 5, 2021.
The worker objected to the June 3, 2021 decision and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-01 – Adjudicative Process
November 3, 2008
15-02-01 – Definition of an Accident
October 12, 2004
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker has initial entitlement to a soft tissue strain/sprain injury involving the right forearm, elbow, and lower biceps.
The Worker’s Position
On the September 27, 2021 Intent to Object Form, the worker indicated that after reporting the injury to the employer on April 13, 2021, they were able to continue their regular job duties by following the employer’s policy that allowed them to leave cards for customers to pick up heavy parcels. They submitted they left numerous cards for customers between April 13, 2021 and May 19, 2021. The worker submitted they did not complain to co-workers during the period as they do not regularly complain and did not feel comfortable confiding in co-workers about their medical issues. They also submitted because of Covid-19, it took some time to obtain a medical appointment.
In the July 19, 2022 Appeal Readiness Form (ARF), the worker submitted medical reports from their orthopedic surgeon, Dr. King, who supports they suffered a work-related injury on April 13, 2021.
The Evidence
A May 19, 2021, Health Professional’s Report (Form 8) from Ms. Banninga, a nurse practitioner, indicated the worker was taking a parcel out of a delivery van on April 13, 2021 (weighing approximately 45 lbs.).
The weight shifted and the parcel slipped, causing right arm hyperextension with immediate sharp pain to the medial right arm, upper forearm, and antecubital arm. Ms. Banninga indicated she was unaware of any pre-existing or similar condition and diagnosed a soft tissue injury with possible partial or complete ligament tears.
The May 21, 2021, Worker’s Report of Injury (Form 6) indicated the injury occurred at 11:30am on April 13, 2021, and was reported to the employer at 12:30 pm the same day.
A May 27, 2021, Musculoskeletal Program of Care (MSK POC) Initial Assessment Report from Mr. Higgins, a physiotherapist, indicated the worker was moving a large parcel off the truck and a heavy item inside the box shifted causing the box to move quickly into the worker’s right forearm. The worker felt a pop in their right arm and severe pain. Mr. Higgins diagnosed a right brachioradialis and biceps strain/sprain.
An April 14, 2021, employer’s Supervisor’s Incident Investigation Report (SIIR), indicated that on April 13, 2021, the worker reported to the postmaster they pulled a large, heavy parcel out of their assigned vehicle. The bottom of the box was supported by the worker’s right hand, and they used their left hand to support the top of the parcel. The worker reported something shifted inside the box, it caught them off guard and they felt a jarring/pulling in their right arm. The SIIR indicated the worker completed a minor injury report with the postmaster upon returning to the office on April 13, 2021, and informed the postmaster they were not intending on seeking medical attention. The report indicated the local area superintendent spoke with the postmaster on April 14, 2021, regarding the incident and asked her to check on the worker and offer modified duties that included “carding” of any larger parcels, so as to not injure themselves further.
The SIIR report also stated that on May 17, 2019, the postmaster contacted the acting superintendent to let her know the worker was thinking of going to the doctor later in the week concerning the April 13, 2021, injury. The employer subsequently followed up with the worker who confirmed they sought medical attention on May 19, 2021. The employer later spoke with the worker who reported their arm pain had not improved in time since the initial incident.
The Employer’s Report of Injury (Form 7) confirmed the details in the SIIR report. The employer also confirmed they were unaware of any prior similar or related problem, injury, or condition.
A June 3, 2021, case file memo indicated the worker delayed in seeking medical attention as they thought the injury was just a strain and they decided to give it a week or so to see if it would pass. As the injury was not getting better, they contacted their doctor on May 11, 2021, and had to wait until May 19, 2021, for an appointment. The worker stated they performed their regular job duties after the injury but refused to take out large/heavy parcels. The worker stated they reported difficulties to the postmaster a few times but did not speak to anyone else. In the same memo, the Eligibility Adjudicator spoke with the employer who indicated the worker continued their regular work after the accident and once they sought medical attention, continued with the essential duties of their work, leaving notification cards instead of delivering packages. The employer advised the Eligibility Adjudicator they would contact the postmaster to verify if the worker reported having difficulty with the job due to an injury.
In a case file memo dated June 3, 2021, the employer advised the Eligibility Adjudicator the worker did not complain about their injury or job duties, did not make any comments, and did not ask for job modifications between April 13, 2021, and the day they sought medical attention.
A February 4, 2022, report from Dr. King, an orthopedic surgeon, stated that in April 2021 the worker suffered an injury in her right elbow while at work. Dr. King indicated that the worker was unloading a large work item from their vehicle. The weight shifted and they felt a stretching pain in their right arm. The worker did not fall and there was no other trauma. The worker denied previous difficulties or limitations in that arm and Dr. King indicated the worker reported the injury at the time and sought medical attention approximately two-weeks later when the swelling and pain did not resolve. Dr. King described prior diagnostic investigations and opined the worker’s physical examination findings were in keeping with right lateral epicondylitis potential damage of the biceps tendon, however, noted a previous ultrasound was not able to identify a lesion. Dr. King confirmed that without an MRI investigation, he could not make a definitive diagnosis or prescribe definitive treatment.
Findings
According to Policy 11-01-01 (Adjudicative Process), an allowable claim must have the following five points:
An employer
A worker
Personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history
When examining proof of accident, decision-makers may consider:
Does an accident or disablement situation exist?
Are there any witnesses?
Are there any discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
Any discrepancies or delays in reporting the accident, the onset of symptoms, seeking medical attention or stopping work must be reasonably explained based on the facts and circumstances of the case.
Policy 15-02-01 (Definition of an Accident) states the definition of an accident includes both a chance event and a disablement. A “chance event” is an identifiable unintended event that results in an injury while an injury itself is not a chance event. A “disablement” includes both a condition that emerges gradually over time or as an unexpected result of working duties.
There is an important difference between an injury that results from a chance event and a disablement. When a chance event results in an injury during the course of employment, it is presumed the injury arose out of the employment (unless the contrary is shown).
In the case of disablement, that presumption does not exist. The evidence must show the injury not only occurred during the course of employment but also that it occurred because of work. The fact that a worker has symptoms at work does not mean the work activities caused the injury or aggravated an underlying condition responsible for the symptoms. It is not enough to speculate on the possibility of a relationship between work and an injury.
There is no dispute in this case that the worker reported injuring their right forearm, elbow, and biceps at work as the result of a specific lifting incident on April 13, 2021. The evidence in the record consistently states the worker described lifting a heavy item by supporting the weight of a parcel with the right arm while placing the left hand on top. The reports consistently describe the contents of the parcel shifting and catching the worker off guard, following which they felt pain in the right arm in the area of the elbow.
Accordingly, I find there are no significant discrepancies in the worker’s description of the accident to the employer or their health care providers.
The real issue to be determined is “proof of accident” and whether the explanations for the discrepancy between the day the injury reportedly occurred and the date the worker sought medical attention while continuing regular duties are reasonable, given the circumstances.
Given the evidence before me, I find there is sufficient proof of the accident. The worker first explained that they initially thought the injury was a strain and would give it some time to see if it would pass. They reported they initially contacted their clinician on May 11, 2021, but could not obtain a medical appointment until May 19, 2021. I find both explanations are reasonable as in my view the delay in seeking medical attention was not excessive. The worker also explained they did not feel comfortable discussing their medical issues with co-workers and were able to continue managing their regular job duties before seeking medical attention by following the employer’s internal policy that allowed them to avoid delivering heavier items by leaving cards with customers so the customers would have to pick up any heavy parcels themselves. I also find those explanations reasonable, in light of the employer’s SIIR report indicating the local area superintendent instructed the postmaster to check on the worker and offer modified duties that included “carding” of any larger parcels so as not to injure themselves further. Accordingly, I accept there is sufficient proof the accident occurred as reported by the worker.
I also find the initial diagnoses of a soft tissue injury, or a strain/sprain involving the right forearm, elbow, and lower right biceps to be medically compatible with the described accident history. As noted previously, I find the worker consistently described the same accident history throughout the record and there is no evidence suggesting they had a prior right elbow problem as the Form 7 indicates the employer was unaware of any prior right arm problem. Similarly, there is also no evidence of a significant intervening event occurring between April 13, 2021, and May 19, 2021, that could reasonably have resulted in a right elbow, forearm, or biceps injury. I recognize that the reporting from Dr. King contains the diagnoses of lateral epicondylitis and possible damage of the biceps tendon; however, I find those diagnoses consistent with the initial medical reporting and I note they relate to the same areas of injury consistently reported by the worker. I also find it significant that Dr. King only described the April 13, 2021, accident in his February 22, 2022, report.
Noting the above, I find the balance of the evidence supports the worker sustained a personal work- related injury of the right forearm, elbow, and lower biceps, initially diagnosed as a soft tissue sprain/strain, arising out of and in the course of their employment on April 13, 2021, and is medically compatible with the reported accident. Accordingly, I accept that all five of the required points referenced in Policy 11-01-01 (Adjudicative Process) are satisfied and initial entitlement is in order.
CONCLUSION
I conclude the worker has initial entitlement to a soft tissue injury (strain/sprain), involving the right forearm, elbow, and lower biceps. The nature and duration of any benefits flowing from this decision is remitted back to the Operating Area for determination.
The worker’s objection is allowed.
DATED November 10, 2022
C. Goegan
Appeals Resolution Officer Appeals Services Division