Decision #30/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 15, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 15, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On October 8, 1998, the claimant filed a compensation claim for a scrape injury to his right leg that occurred at work on September 5, 1998. In a letter attached with the application form, the claimant indicated the following:

  • on September 5, 1998, he scraped the back of his right leg on a deck plate while wrenching his feet free from a generator well. The claimant stated that he did not know about the scrape until he went home and took a shower.
  • as his leg was stiff and slightly swollen on September 6th , the claimant called work in the afternoon to say he was sick. During the next few days he kept his leg elevated and the swelling went down. When he returned to work on September 10th and 11th , his leg became red and swollen. On Saturday, September 12th, his leg was still sore so he made an appointment to see his doctor.
  • on September 14th the physician indicated that his leg was infected and antibiotics were prescribed to fight the infection. The doctor offered to put the claimant on compensation but the claimant felt he would be off work for only a very short period.
  • on September 15th the claimant went to work to give notice of his condition and to fill out the proper insurance forms as he was under the impression that he'd only be off work for a short period.
  • when seen for re-examination on September 16th the doctor told him that the antibiotic pills were not working and that he had 2 hours to report to the hospital. On the same afternoon the claimant was admitted for treatment.

In a letter dated October 21, 1998, the employer's advocate requested that the claim for time loss benefits be declined on the following basis:

  • the claimant chose not to see a physician until September 14, 1998, and although he was fully aware of the necessity of reporting injuries in a timely manner, he chose not to report the September incident to his supervisor until approximately one month later.
  • on the application form for insurance benefits, the claimant answered no to the following questions noted on the form: "Is the disability the result of an accident?" and "Is there a possibility of Workers' Compensation liability?"

In a sworn statement dated November 17, 1998, the claimant clarified that he phoned his shift supervisor on September 14th to say that he had been seen by his doctor and was told by him that he had an infection in his leg and to stay off work. The claimant did not provide any specific details, other than his leg was a problem. He requested insurance forms to fill out as he thought he would only be off work for a short time.

With respect to why he answered no to the question on the insurance form with respect to whether his disability was the result of an accident at work, the claimant explained that he believed his injury was only an infection in his leg. The claimant indicated that what prompted him to report this as a WCB claim on October 6, 1998 was that he never realized the seriousness of the problem and never anticipated that he was going to have such problems or have to miss so much time from work. The claimant requested benefits from September 12, 1998 until his return to work.

On November 23, 1998, Claim Services determined that the claim for compensation was not acceptable under section 4(1) of the Workers Compensation Act (the Act). It was noted that the claimant had ample opportunity to provide notice to his employer that he had been injured at work prior to the time he reported it on October 6, 1998. Considerable weight was placed on the fact that the claimant signed a form for insurance benefits indicating that the disability from which he was suffering was not the result of an accident at work. On February 12, 1999, a union representative appealed this decision to Review Office.

In a decision of February 26, 1999, Review Office confirmed that the claim for compensation was unacceptable based on the following points:

  • the claimant had many opportunities to report his injury as a work related matter (i.e. on September 6th, 10th , 11th or 12th) to his employer but he failed to do so.
  • the claimant completed insurance forms which were clearly filled out for a non-work related injury.
  • Review Office did not accept the union's argument that the claimant did not complete the forms appropriately because he did not consider the scratch on his leg to be an accident. It was noted that on prior WCB claims, the claimant reported other minor accidents to the employer within a few days of the incidents occurring. Review Office did not accept the contention that the claimant did not fully complete the forms but left them in the hands of a clerk who completed them on his behalf. "Once the worker has signed the forms he is responsible for having read what is contained on the form especially the responses to specific questions regarding the work relatedness of the injury."
  • the evidence as presented did not establish that the claimant sustained a personal injury by reason of an accident that arose out of and in the course of his employment on September 5, 1998.

On September 18, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of the Act provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, “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.”

The employer’s advocate advanced the argument there was no corroborative evidence on file to substantiate that the claimant’s injury had occurred at work. With all due respect, we are of the view there is more than sufficient evidence to allow us to reach a contrary conclusion.

The claimant’s having sustained an accident, which resulted in personal injury, is corroborated by the following body of evidence:

The employer in conjunction with a union representative from the health and safety committee together with the claimant conducted an accident investigation. A witness was called to outline the purpose of such an inquiry.

“All parties are involved, which is normally the immediate supervisor that was on duty at the time of the incident, the person that got hurt and a union representative from the health and safety committee would gather together and jointly investigate the accident. They’d take measurements and weights and whatever it took to decide whether that accident was probable cause for further accidents, so that we could take precautionary measures, to make sure the accident happened as described and if there was any - - you know, the purpose of the investigation is to avoid further accidents.”

The employer’s accident investigation form outlines how the accident happened:

“While qualifying a D12 generator on locomotive 7008, he was sitting on the generator deck plate, and his feet became wedged in the generator well. On standing up, he had to wrench his feet free and in doing so [he] scraped the back of his right leg on the generator deck plate. The generator well was in an oily condition.”

The co-chair of the health and safety committee testified with respect to a conversation that he had with management about the alleged accident.

“I approached Mr. [name], who was then the, I guess, human relations officer, and I asked him why they were flagging [the claimant’s] claim. And I said to him, ‘You know that the accident happened in the workplace. You know that from the fact that the accident investigation that took place was done in conjunction with his supervisor. Why are you questioning it?’

He responded to me that, ‘Because of the past history that [the claimant] has had with Compensation, he should have known that he should have followed the proper procedure.’

And at that point I said, ‘So what we’re saying is we know the accident happened in the workplace. He followed - - and for failure of not filling out the proper documentation, you’re denying claim?’

And he said, ‘Yes’.”

Finally, the claimant, during the course of his oral testimony, recalled a conversation that he had with his foreman/supervisor sometime after the incident in question. It is important to note that this foreman was the same individual who had assigned the job task to the claimant on the date of injury as well as represent management in the accident investigation.

“What happened was were chatting and he remembered whatever, whatever. He says, ‘Yes’, he says, ‘you changed your overalls and you had the other ones and one of the legs was ripped off and whatever and covered in oil.’

I says, ‘Yes.’ I says, ‘I got it stuck underneath the plate.’ And we were chatting back and forth.”

As a secondary line of argument, the employer’s advocate suggested that in addition to there being no corroborative evidence of an accident having occurred, the claim should be rejected because there had been delay by the claimant in reporting the incident. While we acknowledge that there were definite irregularities with respect to the claimant’s reporting of the accident, we, nevertheless, believe this to be an appropriate case to exercise the discretion afforded us by section 109 of the Workers Compensation Act to extend the time for filing an application for benefits. The section states:

“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.”

In light of the weight of evidence, we find that the claimant did, on a balance of probabilities, sustain an accident resulting in personal injury, which arose out of and in the course of his employment. Accordingly, the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of February, 2001

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