Public Decisions | The Appeal Commission

Decision #83/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 24, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on May 24, 2000, June 21, 2000 and again on June 27, 2000.

Issue

Whether or not the claimant's shoulder injury arose out of and in the course of the employment.

Decision

That the claimant's shoulder injury did not arise out of and in the course of the employment.

Background

On July 21, 1988, the claimant submitted an application for compensation benefits for a left shoulder injury that occurred in August 1981 during the course of his employment as a labourer. The claimant described the injury by stating, "pike pole got caught in a speed roller. When this happened it dislocated my left shoulder."

Subsequent file records showed that the Workers Compensation Board (WCB) obtained statements from the claimant and several co-workers with regard to the accident. The claimant indicated that he could not recall the exact date of his injury but that it was sometime in August 1981. He stated that he was pulling on a pole to move a log and felt a loud snap in his left shoulder. Several co-workers who were interviewed by the WCB denied witnessing an accident to the claimant's left shoulder at any time. It was also noted from file documentation that the claimant received disability benefits from several different companies for left shoulder difficulties.

After reviewing the statements on file along with medical reports from the family physician and an orthopaedic specialist, the WCB denied the claim in May 1989, as it was unable to establish that an accident occurred at work in August 1981. This decision was appealed by the claimant and the case was referred to the Review Committee for consideration.

On November 17, 1989, Review Committee determined that no compensation was payable under Section 19 of The Workers Compensation Act (the Act) as the claimant delayed in filing his application for compensation for a period well in excess of one year. In addition, Review Committee confirmed the previous decision that it could not be established that the claimant sustained personal injury by accident arising out of and in the course of his employment.

On June 25, 1993, an Appeal Panel hearing was held at the request of a union representative, acting on behalf of the claimant. The Appeal Panel ultimately concluded that the claimant's shoulder injury did not arise out of and in the course of his employment. For further details regarding this decision, reference should be made to Appeal Panel Decision No. 266/93 dated June 25, 1993.

Subsequent file documentation revealed that legal counsel, acting on behalf of the claimant, submitted a request for reconsideration pursuant to subsection 60.91 of the Act in respect to Appeal Panel decision 266/93. In January 2000, the request for reconsideration was granted and a new hearing was held on May 24, 2000. Following the hearing the panel met to discuss the case on May 24, 2000, June 21, 2000 and June 27, 2000.

Reasons

Chairperson Vivian and Commissioner Finkel:

The issue in this appeal is whether or not the claimant's shoulder injury arose out of and in the course of employment.

The relevant subsections of The Workers Compensation Act (the Act) are those applicable to a 1981 claim and therefore for this appeal are 2(1)(a) which defines an accident; subsections 16(1), 16(2), and section 92 which state:

Definitions

a wilful and intentional act that is not the act of the workman; and
any
1. event arising out of, and in the course of, employment; or
2. thing that is done and the doing of which arises out of, and in the course of, employment; and
conditions in a place where an industrial process, trade, or occupation is carried on, that occasion a disease;
and as a result of which a workman is disabled.

Application for compensation

16(1) Where a workman or dependent is entitled to compensation under this part he shall file with the board an application for the compensation, together with the certificate of the physician, if any, who attended the workman, in the form prescribed by the board for that purpose, and such further or other proofs of his claim as may be required by the regulations or by the board.

Must be filed within one year

Enlargement of time limited for applications, etc.

92 Where, in the opinion of the board, an injustice would result unless an enlargement of the time prescribed by any section of this Act or by any regulation for the making of any application, the taking of any proceedings, or the doing of any other act, is granted, the board may enlarge the time so prescribed; and the enlargement may be granted either before or after the expiration of the time prescribed in this Act or any regulation.

This matter came before the Appeal Panel as a new hearing following a request for reconsideration being granted pursuant to subsection 60.91 of the Act based on the receipt of new evidence which was sufficient to constitute a new hearing of the issue under appeal. The new evidence received was a Supervisor's Report of an Injury dated August 5, 1981.

Specifically, the Appeal Panel was asked to reconsider Appeal Panel decision number 266/93 of June 25, 1993. The claimant's position as put forward by his representative was that the new evidence taken with all the information on file including the transcript of the prior hearing, was sufficient to change the previous decision of the Appeal Panel that the claimant's shoulder injury did not arise out of and in the course of his employment.

In considering this appeal the majority has reviewed all the evidence on file, including the transcript of the first hearing and all the evidence put forward at the subsequent hearing of this matter. The majority is of the view that there is insufficient evidence to establish, on a balance of probabilities, that an accident arose out of and in the course of employment.

We note that the claimant has submitted a Supervisor's Report of Injury dated August 5, 1981 that he fortuitously came across some eighteen years following the alleged accident at work. The document appears to indicate that the claimant sustained an accident at work on August 5, 1981. The accident report itself is dated August 5, 1981 and refers to a date of accident of August 5, 1981 at 11.30 am during an 8 to 4 shift.

We note considerable discrepancies between what is indicated on the accident report and other evidence revealed on file. The claimant indicated at the second hearing that he was actually injured on the 4th August 1981 on the 4.00 p.m. to 12 p.m. shift. Daily Labour Reports signed by the claimant's supervisor for August 1 to 5, 1981 on file indicated that the claimant was not at work on August 5, 1981 as he had been marked out sick on the Labour Report for that date as verified by his supervisor.

We also note from the Labour Reports that the claimant's crew worked the 4 p.m. to 12 p.m. shift on the 5th August, 1981 whereas the accident report indicates that the claimant was injured on the 5th August during the 8 to 4 shift. We note a further discrepancy in dates in that the claimant's attending physician gave sworn evidence on June 25, 1993 that the claimant had first come to see him on August 5, 1981 with a painful left shoulder of three days duration, suggesting that any injury would have occurred on or about August 2, 1981. This is also consistent with the attending physician's narrative report of January 3, 1989.

In our review of the specific circumstances of the alleged injury we note in an interview with a WCB field representative on July 12, 1999 the claimant provided a detailed narrative of the alleged injury. He describes the accident to be of sufficient severity that "we shut everything down." The claimant asserts the incident was witnessed by a co-worker, who was his work partner on a conveyor belt at the time of the alleged accident. This co-worker/partner was named as an eyewitness in the Notice of Injury Report signed by the claimant. However on our review of information obtained from the co-worker eyewitness in 1989 we note that he denied any knowledge of an incident occurring at the work place in 1981.

The claimant also asserts in the interview of July 12, 1999 that he discussed the incident with his foreman during that shift. However we note that the claimant's foreman who allegedly signed the accident report of August 5, 1981 gave a sworn statement to the WCB on April 13, 1989 indicating that he did not recall anything about a left shoulder injury to the claimant in 1981.

The file further reveals that the claimant was examined by an attending physician on August 5, 1981 but no report of injury was submitted to the WCB. Instead, the claimant and doctor completed documentation for a claim with the employer's group insurance plan and the claim was processed as a non-work related claim from that time onward. We note in this regard that both the treating physician and the claimant signed the application documents related to the 1981 claim through the private insurer.

The claimant was subsequently examined by an orthopaedic specialist who submitted his account to the WCB as well as a narrative report dated November 5, 1981 as the claimant had apparently indicated to the specialist that he had pain and marked crackling in his left shoulder for two months duration and that three to four weeks ago he had felt pain in his shoulder when he pulled on a heavy log at work.

We note this again points to yet a different date, and in our view, suggests the possibility of an intervening event. We further note that the orthopaedic specialist also submitted a report to the employer's disability insurer for the claimant dated November 5, 1981, the same date as the narrative report submitted to WCB. This appears to indicate that the claimant took the relevant insurance forms to the specialist for signing as we note the specialist's office is in the city. We note that the WCB did not inform the orthopaedic specialist that this was not considered a work related claim until correspondence to him dated December 18, 1981.

On receipt of the report from the orthopaedic specialist the WCB appears to have initiated an investigation as to whether or not an accident occurred at work. In this regard we note the WCB forwarded a letter to the claimant on November 13, 1981 to the same address for the claimant as provided to the WCB by the orthopaedic specialist. The file documentation suggests that the orthopaedic specialist's report was the first advice received by the WCB which suggested a possible work related injury. The letter of November 13, 1981 stated the following:

In order that the board may deal with any claim that you may have by reason thereof, it is necessary that you complete the enclosed " Claim for Compensation" Form #3. The form upon completion should be forwarded to the Board as quickly as possible.

Upon receipt of this form, duly completed, we shall be able to proceed further in this matter." (emphasis added)

Although the November 13, 1981 letter was clearly addressed to the claimant, we note that the family physician provided a response to the WCB which was acknowledged by the WCB on November 26, 1981. The physician's response was typed directly onto the WCB's November 13, 1981 letter by staff and stated:

" This is to advise that Mr. [the claimant] did not have an industrial accident in November 1981 - He has not been working this month at all. He is presently on sick leave from work." (emphasis added)

At the same time that the WCB investigated the possibility of an accident with the claimant, it appears a similar investigation was undertaken with the employer. In this regard we note, by letter dated December 16, 1981 the employer responded to the WCB advising that the claimant did not sustain an injury to his left shoulder while in their employ. In fact we also note in documents related to the 1981 claim through the private insurer that both the treating physician and the claimant signed the application.

The claimant has alleged that the filing of WCB claims was discouraged by the employer thus explaining the claimant's receipt of private insurance in respect to this matter. We find that the evidence does not support this allegation.

In particular, we note the evidence of the claimant's attending physician at the first hearing was that he was very familiar with situations involving work related as opposed to non-work related claims and in this instance had filed a series of weekly indemnity forms with the employer's group insurance plan. His further evidence was that he took direction as to how to file claims from his patients and not the company.

Additionally, we note from the evidence at the first hearing in 1993 that the claimant was specifically asked if he had ever been pressured into going on weekly indemnity versus workers compensation, to which the claimant replied, "I can't recall." In later testimony the claimant also denied any first hand knowledge of any company practice to that effect.

We note inconsistent and contradictory versions of events from the claimant consistently throughout this file which in our view undermine his credibility and therefore that of his claim.

In conclusion the majority find that the evidence is insufficient, on a balance of probabilities, to establish that the claimant's shoulder injury arose out of and in the course of employment.

In addition to the above finding we feel compelled to discuss the application of subsection 16(2) to the facts of this case. We note as raised during the second hearing that the claimant did not initiate a WCB application for benefits until July 1988, some seven years after the alleged incident at work, a significant delay in the reporting of an accident which appears to coincide with a time when his disability benefits were in question.

In our view this delay hampers and compromises the ability of the WCB to investigate and adjudicate claims appropriately and undermines the spirit and intent of the Act. We note that the WCB did subsequently investigate the claim to the best of their ability. We find that the significant delay in reporting also hinders the ability to gather the relevant evidence as amongst other consequences witnesses are no longer available, or events can no longer be clearly recalled. This delay of itself also undermines a causal relationship between the claimant's shoulder problems in 1981 and any incident at work.

We find this to be supported by the claimant's election to pursue private insurance as supported by his attending physician and the orthopaedic specialist. Furthermore despite the orthopaedic opinion at the time which suggested the possibility of a causal relationship to work we note no action is taken by the claimant to establish a WCB claim which leads the majority to conclude, on a balance of probabilities, that an accident did not occur.

We also note that following the 1981 alleged incident that the claimant appears to have a number of claims both work and non-work related, for example in the years of 1982, 1983, 1984 and 1985 which have been pursued through both WCB and private insurance. The work related claims appear to have been reported in a timely fashion which leads to serious questions in our mind as to the reason for the claimant's seven year delay until July 1988 in applying to WCB to recast the 1981 claim from non-work related to work related. We find subsection 16(1) places a responsibility on the worker to apply to the WCB in a timely fashion.

We are led to conclude that while we find that there is insufficient evidence, on a balance of probabilities, to establish an incident at work to account for the claimant's left shoulder problems, that if there was any incident at work the claimant voluntarily elected not to pursue a claim through Workers Compensation.

We therefore concur with the Review Office in its decision of November 17th, 1989 that the claimant had ample opportunity to have filed a claim for compensation benefits prior to July 21, 1988 and find that the claimant would in any event be statute barred by subsection 16(2) of the Act as we find no injustice in the circumstances of this case that would allow the majority to consider exercising their discretion to extend the time limit beyond the one year limitation in subsection 16(2). Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of August, 2000

Commissioner's Dissent

Commissioner Malazdrewich’s dissent:

I disagree with the majority in this matter, and would have found in favour of the claimant.

The claimant contends that he was injured at work in an accident which occurred in August 1981. He acknowledges that he received weekly indemnity insurance benefits in respect of this accident but states that he was convinced by his employer to accept these benefits and “light duty” work rather than submitting a claim for Workers’ Compensation benefits.

I believe that the evidence and file documentation supports the claimant in this regard. Among the earliest documents in the file is the actual “Statement of Claim” which is one of the originating documents in the file which triggers weekly indemnity and/or long term disability benefits. It is significant, in my view, that this report is signed by the employer’s Safety Officer of the day. If this injury were not sustained in the workplace, there would be absolutely no reason for the employer’s Safety Officer to be involved with the application for benefits. I believe this supports the worker’s claim that he was urged to apply for benefits other than WCB benefits and offered light duties in the workplace.

Reference was made in the 1993 hearing to the fact that the claimant met, on a couple occasions, with representatives of the employer to review the claimant’s injuries sustained in the workplace. In the records, there is no mention of an August 1981 workplace injury. I submit this is totally in keeping with the claimant’s testimony. If, indeed, the employer persuaded the claimant to accept weekly indemnity rather than Workers’ Compensation benefits for this incident, it would hardly be open to the employer to then add the incident to other work related injuries.

Further evidence in favour of the claimant is derived from the sworn statements of co-workers. Indeed, some of these have stated that they did not recall a workplace injury to the claimant in August 1981. If they did not recall it, that does not militate against the claimant, but simply enforces that in 1989, some people didn’t recall what happened in 1981. Not at all unexpected. What is significant in these statements, though is that at least one co-worker remembered the claimant getting hurt at work in 1981 and at least two others recalled hearing about a workplace injury to the claimant in 1981.

In further support of the claimant, and especially significant, is the November 5, 1981 letter from an orthopaedic specialist to the claimant’s family doctor wherein the specialist, referring to the claimant’s injury, states “…this occurred about three or four weeks ago when he pulled on a heavy log and felt a sharp pull around his shoulder with pain in the left shoulder”. This, I submit, further confirms the claimant’s testimony, given that he advised the orthopaedic specialist, mere weeks after the injury, that it indeed occurred in the workplace.

The foregoing is substantiated in an orthopaedic surgeon’s report of November 26, 1984 wherein he states the claimant “… has had some pain in the left shoulder for three years which occurred when he was twisting the arm when pulling some wood”.

All the foregoing indicates that the claimant, and several others, were fully cognizant that his difficulties to his left shoulder were workplace related. Also, all of the foregoing were in evidence at the 1993 Appeal Panel hearing, which concluded that the injury did not arise out of and in the course of his employment. In my opinion, there was ample evidence to conclude otherwise in the 1993 hearing.

The events subsequent to the 1993 hearing have led to a reconsideration, based on one piece of new evidence, that being the purportedly recent discovery by the claimant of his copy of the “Supervisor’s Report of an Injury” form allegedly confirming that the claimant sustained an injury in the workplace on August 5, 1981.

There was considerable discussion as to the veracity of this document, which, if believed to be genuine, would confirm that the claimant was injured at work on August 4, 1981. Reference has been made by the majority to inconsistencies in the document, apparently in support of a premise that the document itself is fraudulent. I reject such notions, while acknowledging several of these inconsistencies.

The “Report” indicates that the date and time of the injury was August 5, 1981 at 11:30 a.m. The claimant’s testimony put the date of injury as August 4. I have no difficulty accepting the premise that the claimant simply filled in the date and time that he completed his portion of the Report. This is consistent with his testimony that he continued working the remainder of his August 4 shift, after his injury. He stated that he attended at his doctor’s office the morning of August 5 and then went to his workplace to complete the accident report …no inconsistency thus far.

The fatal piece of evidence to the theory that the document was completed by the claimant “after the fact” is found in section 5 of the Report, which deals with the claimant’s occupation and age. This portion of the Report is supposed to be completed by the Foreman. If it were completed “after the fact” by the claimant, surely he (the claimant) would know his age on August 5, 1981. It is a matter of record that the claimant was born on June 13, 1961 and was 20 years old on August 5, 1981.

Yet the Report indicates age 18 in this section, an error that could only have been made by another person, and surely not by the claimant, if he were fraudulently completing this report some time later.

Likewise, the claimant had the benefit of the transcript of the 1993 hearing wherein it was clear that the alleged accident occurred on August 4. With the benefit of such hindsight, a reasonably intelligent person (as the claimant appeared to be) would not have made the error of specifying August 5 as the date of injury if he were falsifying this Report.

In further support of the authenticity of this document is the testimony of the employer’s current Vice President of Human Resources and Public Affairs. He stated, in examination-in-chief, that he was satisfied that the Report was “an accident report for an accident that took place basically as the form suggests”. This is the only evidence from the employer at this hearing, and totally supports the worker’s claim.

I have no difficulty accepting the Report as genuine and therefore as conclusive proof of an accident which happened to the claimant, in his workplace, on August 4, 1981.

Finally, the majority considered the proposition that, even if the accident did occur as stated by the claimant, he is disenfranchised from a successful claim because his application for compensation was not filed within one year of the injury.

With respect, I submit that it is not open to the panel to raise the time limit issue.

This was supposed to be a reconsideration of the 1993 Appeal Panel decision. Nowhere, in that Panel’s deliberations was the matter of the one-year ban raised, nor was it raised in this panel’s deliberations.

Given that this is, in law, an “enquiry model” it is incumbent upon the panel to make its enquiries specific to the case the claimant has to meet.

In other words, it is not open to the panel, having not identified the grounds of the timeliness, to then disqualify the claimant on these grounds. Specifically, the transcript confirms that the issue under consideration is “whether or not the claimant’s shoulder injury arose out of and in the course of employment”.

This is the issue identified in advance by the panel, and therefore the only test that the claimant believes he has to meet.

However, if the issue of timeliness were valid, I would have still found in favour of the claimant.

The Worker’s Compensation Act stipulates that the one-year limit is subject to enlargement if an injustice would otherwise result.

I believe that injustice can be found in the fact that the claimant has a disabled shoulder for the rest of his life, and that he was very young (aged 20) and naïve in the procedures of the workplace at the time of this incident.

Based on this, I would have, if required, granted an enlargement of the time limit.

For all of the foregoing reasons, I believe this claim should have succeeded.

B. Malazdrewich, Commissioner

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