Decision #157/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 20, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 20, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

While employed as a labourer at a poultry plant on May 12, 2000, the claimant reported an injury to his left middle finger which resulted in a severed tendon. The claimant described the accident as follows:

    "I was working on line in sorting room and reached up to stretch and hand/finger was cut (poked) on metal grate above."

The employer's version of the accident, as noted on the Employer's Report of Injury form, was noted as follows:

    "While working in the sorting room, sorting chicken at waist level for an unknown work reason, he reached overhead to grab onto a piece of metal pipe. The cover that was around the metal pipe let go resulting in cutting his left middle finger. It was investigated and was reported by the supervisor that horse play was involved when reaching up to grab the metal pipe."

Medical reports confirmed that the claimant was diagnosed with a flexor tendon laceration to the left middle finger and that he had undergone surgery (a flexor digitorum profundus repair) on May 16, 2000.

File documentation showed that a Workers Compensation Board (WCB) adjudicator conducted an investigation into the claim, which included several discussions with the claimant and his employer surrounding the mechanism of injury. In addition, the adjudicator also spoke with the claimant's co-worker. In a decision letter dated July 24, 2000, primary adjudication determined the following:

  • that the WCB would accept responsibility for the claim;
  • that the act of jumping and grabbing the piping was considered wilful misconduct on the part of the claimant (reference was made to section 4(3) of the Workers Compensation Act (the Act)). The claimant was therefore disqualified from benefits for three weeks and would not start to receive wage loss benefits until May 26, 2000.
  • that the claimant could not have performed modified duties in the cold as it was not recommended by his attending physician. Benefits would therefore be paid from May 26, 2000 to July 20, 2000 when the attending physician determined that the claimant was fit to return to modified duties.

The claimant returned to modified duties on August 2, 2000, using only his unaffected right arm. He was paid wage loss benefits up to August 8, 2000 when he ceased work due to a new right arm injury. A new claim was then filed for the right arm injury, however, the WCB denied acceptance for the claimant's right elbow/forearm complaints as either being related to his left hand injury or as a new workplace injury.

In December 2000, the claimant's union representative appealed the WCB's decision of July 24, 2000 and presented argument that the claimant was indeed entitled to wage loss and to medical aid benefits retroactively for the entire period of his time loss, i.e. "that the initial (3) weeks' coverage must not be denied him."

Prior to considering the case, Review Office attended the employer's work site on March 8, 2001 to view the workstation where the claimant lacerated his fingers while in the course of his duties. Details regarding the work site visit are contained in a memo dated March 8, 2001.

On March 9, 2001, Review Office overturned primary adjudication's decision that the claim was acceptable. Review Office noted that the claimant had changed his version of events between the time that he filled out his claim form and when he had relayed the information to his WCB adjudicator.

This evidence led Review Office to conclude that horse play was involved in this situation and that the claimant had injured his fingers while swinging over pallets. The claimant had in effect removed himself from his duties to engage in actions that would not be condoned by his employer nor would such actions benefit the employer in any way. On May 14, 2001, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (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

  1. A wilful and intentional act that is not the act of the worker,
  2. 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
  3. an occupational disease

and as a result of which a worker is injured."

According to the claimant's testimony, he injured himself when he attempted to take a short cut by swinging on an overhead pipe in order to get to the conveyor workstation. The fact that the claimant even attempted this maneuver was not in our view horseplay, but rather an exercise of bad judgement on his part. We find that the claimant's actions did not take him outside the course of his employment duties. We further find that the claimant did sustain an accident as defined by the Act and therefore the claim is acceptable. 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 13th day of December, 2001

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