The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 16, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on May 16, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On April 13, 2000, the claimant submitted a claim for compensation benefits indicating that her hand condition was related to her employment activities as a sewing machine operator. The claimant described her injury as follows:

"Sewing hems on pants, pulling hem with one hand and pushing with other."

On the Employer's Report of Injury form dated April 17, 2000, the employer indicated the following:

"No report of any injury to anyone on the premises at any time. Further, [the claimant] on April 17, 2000 at 2:15 p.m., while picking up her belongings, denied making a claim and clenched both hands into fists to prove it."

A Doctor's First Report dated April 6, 2000, indicated that the claimant's right hand was painful and swollen. The diagnosis was a strained right hand.

On May 10, 2000, the Workers Compensation Board (WCB) obtained a signed statement from the claimant and the following information was obtained:

• the claimant stated she had no prior difficulties with her hands.
• on March 13, 2000, the claimant worked 10 to 15 minutes to see if she could do the job. On March 15, 2000 the claimant officially started work when she realized that the work was quite hard. Her hands were okay but her left shoulder and upper back was a bit sore and stiff. The claimant thought that it was due to getting used to the position. She asked the employer if she could actually start work the following week and her request was granted. The claimant started work on March 20, 2000.
• the claimant worked full shifts on March 21 and 22, 2000 and her hands were fine for both shifts. On March 22nd the claimant asked her boss (the president of the company) if she could work part-time instead of full time as she was finding the work a bit hard on her left shoulder and upper back. The president indicated that she could work part time but her hourly rate would be reduced. The claimant indicated that she needed the benefits so she told the president that she would try to continue to work full time.
• on March 24, 2000 the claimant worked a full shift and her hands were fine. Gradually over the next two weeks, the claimant said that the back portion of her left upper shoulder started to become quite sore. She gradually noticed that her right thumb was getting sore as well. During the middle of the second week (March 27 - 30), the claimant began to notice that her fingers and top of her right hand were sore. She did not mention her difficulties to the president because the president was "rude all the time" and he always wanted her to "work faster, work faster". During the night, the claimant said she noticed the top of her right hand would be swollen and she would apply ice. During the weekend, there was no improvement in her right hand condition.
• on April 3, 2000, the claimant said she got up for work but found she couldn't because her hand was sore and swollen. She waited a few hours and then decided to call into work and quit. The claimant stated that she told her supervisor that she was quitting and asked her when she could come and get her final cheque. The supervisor told the claimant she would have to talk to the president but the claimant said she didn't want to as he was rude and her hand was sore and swollen. The supervisor did not ask the claimant why her hand was sore and the claimant didn't mention why it was sore either. The claimant asked her supervisor to put her personal belongings away and that she would pick them up at the time she picked up her final cheque.
• on April 17, 2000, the claimant called the president and he asked if she had gone to the WCB. The claimant said yes. She asked her employer about her cheque and he asked if her address was correct. When the claimant said yes, the employer hung up the phone. The employer didn't give her a chance to say anything about her hand. The claimant waited a while and then called her supervisor and asked when she could come and get her belongings and her cheque. The supervisor said she could come in anytime.
• around 2:00 the claimant said she went to work and the secretary gave her back her belongings. The president then came out and asked if she had her things and the claimant said yes but her knife was missing. She then asked the employer for her last cheque and he advised her that the cheque was in the mail and not to come to the workplace. When the claimant asked the employer why he put the cheque in the mail, the employer said he was going to call the police. The claimant indicated that she left premises. At no time did she or her boss discuss filing with WCB.

On May 11, 2000, a signed statement was obtained from the company president. He indicated that at no time did the claimant report that she was having difficulties with her hand. The president could not recall the exact date, but recalled speaking with the claimant after she quit. The claimant had been harassing the supervisor and was threatening to kill her. This was the reason why he advised the claimant to stay away from the workplace and that is why he called the police when she showed up at the workplace. The president said that he mentioned to the claimant about filing the WCB claim and she denied the claim and just said it was her husband. When the claimant came to get her things, she said that she did not have a hand injury and she raised her hands and began opening and closing them. She also carried her things out with her hand.

A statement was taken from the claimant's supervisor on May 11, 2000. The supervisor indicated that the claimant often complained about the fabric or sewing machine but never complained that her hand was bothering her. She recalled that the claimant called her to say that she quit because she didn't like the job and that she was asking for her pay cheque. The claimant was advised that she would have to wait until payday to get her cheque and that her things would be with the girl in the office because as she no longer worked for the employer she was not allowed to come in and roam around. The supervisor indicated that the claimant did not make any threats to her.

On May 11, 2000, a statement was taken from a designer. She indicated that she was in the office when the claimant came to pick up her stuff and wanted to talk to the supervisor. The designer said she went to talk to the supervisor who was reluctant to speak with the claimant. She was told that the claimant's things were by the door. When the claimant went through her things she indicated that everything was not there and she wanted to speak with the supervisor. The claimant was insistent about it and wasn't being polite. The president then came into the office and the designer left it for him to deal with. The designer recalled hearing the employer ask the claimant to leave but the claimant kept insisting on speaking with her supervisor. It was noted that the claimant did not threaten the designer in any way.

In a letter dated May 12, 2000, primary adjudication informed the claimant that the evidence did not establish that an injury occurred at work, therefore her claim was denied.

On October 5, 2000, a worker advisor appealed the above decision on behalf of the claimant. The worker advisor referred to chart notes which were obtained from the attending physician between April 6 and September 12, 2000. The worker advisor submitted that there was evidence that established that an injury occurred at work. In a letter dated October 18, 2000, primary adjudication advised the claimant that no change would be made to the original decision of May 12, 2000 and that the case would be forwarded to Review Office for consideration.

The Review Office, in its decision of October 27, 2000, stated that it was quite clear from reviewing the case that the claimant never at any time reported injuring her hand to the employer nor did she ever attribute the nature of her employment as causing her hand problem. Review Office was of opinion that the claimant had ample opportunity to have made a report of her injury to her employer and specifically to her supervisor when informing her that she was quitting her job. The worker did not do so, at her own admission. Review Office concluded that the evidence did not support the claimant's contention that she sustained personal injury by an accident that arose out of and in the course of her employment. In March 2001, the worker advisor appealed Review Office's decision and requested an oral hearing.

Reasons

This case concerns a woman who injured her hand while working, for a short period of time, as a sewing machine operator in a garment factory.

The issue that the Panel was asked to determine was whether or not the claim is acceptable.

This appeal arose out of earlier decisions by the WCB Adjudicator and, subsequently, the Review Office, both of which found the claim not to be acceptable. The basis for this finding, in both cases, was largely grounded on the fact that the claimant had failed to report the injury to the employer.

In considering the appeal, the panel found that we had to take into account two separate matters: did the claimant incur an injury which arose out of and in the course of her employment; and did she meet the test set out in section 17 of The Workers Compensation Act in respect of reporting the injury in a timely manner?

For her appeal to succeed, we would have to rule positively on both matters. We held that she did meet both requirements and that the claim is acceptable.

In respect of the first matter, we were persuaded by the evidence of her attending physician, whom she visited within days of quitting her job as her hand was too painful to continue this work. In his clinical notes of the first visit, the doctor noted that she "had a job for two weeks, using her right hand, pulling things and had some arthritic changes there - aggravating it." In his first report to the Board, he diagnosed her condition as "strained right hand." In his subsequent reports, he continued to consider the injury as one caused by her work. In a note, dated Sept. 8/2000, he wrote that her symptoms were "Most likely caused by an acute tendonitis to the right hand. Metacarpal area. - from her job."

The panel also heard - from both the claimant and the representative of the employer - a description of the mechanics of the job duties, which are consistent with the nature of the injury.

Based on this description and the doctor's reports, we find that the preponderance of evidence supports a conclusion that a workplace related injury did occur.

However, that finding is not enough to resolve the issue in this case. The claimant did not report the injury directly to her employer, as required by section 17(1) of the Act. As noted above, it was largely for this reason that her claim was rejected by both the Adjudicator and the Review Office.

The day after she visited her doctor, the claimant reported the accident directly to the WCB. This was one week after her last day of work. Although the "Worker's Report" is stamp-dated a week later, a memo on file corroborates that she did report to the board on the day following the visit to the doctor. Four days later, a board Employer Services Representative - in a phone conversation, followed up by a letter - made the employer aware that a claim had been filed.

We find that, by this course of actions, the claimant did meet the requirement to notify the employer, as set out in the Act.

Section 17(1) of the Act requires the worker to notify the employer within 30 days of the accident. Section 17(2) further requires that the notice be in writing. We know from the above-noted chronology that the employer was made aware of the injury eleven days after the last day of work and was forwarded a copy of the Worker's Report.

While we are of the view that this meets the requirements of the Act, we also considered the alternatives provided in section 17(5), which allows the board to excuse the strict reporting requirements in the following situations:

• that notice for some sufficient reason could not have been given; or
• that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or
• that the board is of opinion that the claim is a just one and ought to be allowed.

We are of the opinion that each of these situations could apply in this case. With respect to (b), we have already noted that the employer did have knowledge of the injury within the thirty-day period.

With respect to (a), we note that there were considerable personality issues between the claimant and the company president, which support her contention that she did not report the injury to him because she was afraid of him. Allegations of abuse were made by both parties. We did not have to make any findings in respect of these allegations, as their only relevance to the determination of the issue was to support that an unfriendly atmosphere existed between the parties. Given this, we conclude that it was not unreasonable that the claimant did not report directly to the employer.

Further, given our findings on subsections (a) and (b), we are of the view that justice would not be served by rejecting the claim on the basis that reporting requirements were not met.

Therefore, we conclude that the claimant did meet the requirements to report the injury to her employer as stipulated in the Act.

Accordingly, we allow the appeal and find that the claim is acceptable.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of June, 2001