Decision #01/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 10, 2003, at the claimant's request.. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Decision: Unanimous

Background

In June 2002, the claimant telephoned the call centre at the Workers Compensation Board (WCB) to report a neck injury that occurred at work on May 27, 2002. The claimant described his injury as follows:
"I was applying fertilizer on an alfalfa field and hit a large pot hole which was not visible. No warning that it was there. I ran into it at about 14 mph. The machine bounced up in the air about 4-5 feet and it did this about 4 times before gradually coming to a stop. They are very large tires 4 ½ feet high by 4 feet wide. It was painful at the time but didn't think too much of it. It gradually got worse over the next few days. I was also getting headaches that would not go away."
In a letter to the WCB dated June 12, 2003, the employer's Claims Coordinator felt that the claim should be denied based on the following reasons:
  • the claimant reported an injury to the WCB for a date that he did not work. He had reported a different injury date.

  • alternate duties were available and were offered to the claimant but he flatly refused due to a garnishee order; and

  • the claimant may have injured himself elsewhere during the period prior to April 30th or after April 30th, which were the days that he was not working for the employer.
A Doctor's First Report dated June 4, 2002, noted that the claimant was diagnosed with a whiplash injury to his neck. The physician stated on his report that the claimant was operating a floater and ran into a huge pot hole on the field on May 26, 2002.

In order to adjudicate the claim, primary adjudication contacted the claimant, his supervisor, the Claims Coordinator as well as a co-worker who allegedly witnessed the accident for further details surrounding the claim.

On July 12, 2002, Rehabilitation & Compensation Services denied the claim for compensation as it was unable to establish that an accident occurred on May 27, 2002. This decision was based on the rationale that the claimant did not report the injury to his employer for several days after the accident and he did not attend a physician for treatment until June 4, 2002.

On October 25, 2002, the case was considered by Review Office based on an appeal submission by the claimant that was received at the WCB on August 30, 2002. The claimant contended that he had reported the accident to his supervisor on May 30th and was told to report the accident to his manager who was unavailable as he was away on vacation. He did speak to the manager a few days later. The claimant stated that if he was more familiar with workers compensation he would have made a report immediately.

In its decision of October 25, 2002, Review Office stated that it was unable to establish that the worker's accident was reported prior to June 3, 2002. Review Office noted that the worker had the opportunity to report the accident on May 28 and 30, 2002 when he spoke with the employer. The worker made no attempt to report the accident on the day it occurred on or about May 29, 2002. Review Office found inconsistent information that had been provided by the witness to the accident and the worker. It also considered the information which had been provided by the employer which confirmed that the claimant was informed of their requirement to report accidents within 15 minutes. The claimant had a previous WCB claim so he would have been more familiar with WCB reporting requirements. Review Office concluded that the weight of evidence did not support the claimant's claim of an accident occurring on May 27, 2002. On February 19, 2003, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker employed in the agricultural services field. His job was to drive a machine, known as a "floater", to apply fertilizer onto a farm field. He filed a claim for an injury which, he said, had occurred while doing this job. His claim for compensation was denied. This decision was upheld upon reconsideration by Review Office. He then appealed to the Appeal Commission.

For his appeal to be successful, the Appeal Panel would have to determine that his injury resulted from an accident which arose out of and in the course of his employment. We have come to that determination.

Prior to making our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant, three witnesses and a representative of the employer.

The nature of the incident which led to the injury is described in the Background section of this decision. From the testimony of the claimant and one of his co-workers, we believe that the incident could very well have occurred as described. We took particular note of the following:
  • Both the claimant and his co-worker testified that the field was rough.
  • The floater has no springs or shock absorbers; but gets its suspension from large, lowly-inflated tires. The seat is on an air shock. It is accepted that these machines are prone to bounce around a lot.
  • The claimant noted that the crop, alfalfa, had been planted a couple of weeks earlier and, thus, was 10 - 12 inches high. This made it more difficult to see potholes or other irregularities in the field.
  • In order to ensure that the fertilizer is placed in straight rows, it is necessary for the driver to keep a close eye on a satellite screen or on a chosen target on the horizon. This makes it more difficult to keep an eye out for rough spots in the field.
  • While he may not have seen the specific incident, the witness stated that he saw the floater bouncing around a fair bit.
  • The witness testified that the claimant did complain about neck pain on, or about, May 27, 2002.
There is some suggestion, in the file, that this witness changed his version of what he saw. We disagree with this suggestion. The witness was consistent in stating that he could not swear that an accident happened, as described - it may have, it may not have. He repeated this before us. We found the witness to be forthright. What was important to our consideration was his confirmation that the field was rough and that he saw the machine bouncing at different times.

It is, also, stated in the file that the claimant was complaining of neck pain prior to the incident on May 27. The suggestion is that he had a pre-existing problem that he tried to blame on his work. We believe that it is not unreasonable that he would experience neck pain, given the nature of the job. We took particular note of the company's strong recommendation that workers wear a neck brace to minimize the possibility of getting neck pain.

Both the adjudicator and the review officer took the claimant to task for failing to report the incident in a timely manner. The employer has an internal policy requiring that accidents be reported to the employer within fifteen minutes of their happening. We considered the following chronology:
  • May 27, 2002 - date of workplace accident;
  • May 28, 2002 - worked full shift - did not report accident;
  • May 29, 2002 - did not report for work - did not phone in;
  • May 30, 2002 - spoke to his supervisor - claimant states he mentioned accident to supervisor - supervisor states he did not;
  • June 3, 2002 - spoke to manager - reported accident.
We are of the view that his failure to report the accident for a week is not sufficient grounds to deny the claim. Subsection 17(1) of The Workers Compensation Act requires that an accident be reported "as soon as practicable, but in any case not later than 30 days after the happening of the accident." While he should have reported it on one of the days following the incident, he did report within the statutory limitation. The fact that the company has its own policy is irrelevant to our consideration.

Based on our review of the file and the testimony presented to us, we have concluded - on a balance of probabilities - that the accident did occur as the claimant has stated. Therefore, the claim is accepted.

However, despite having come to that conclusion, we feel compelled to make some comment on his apparent failure to mitigate the loss of earning capacity resulting from his injury. The following factors should be considered when determining wage loss benefits:
  • The claimant turned down the company offer of alternative duties. We heard conflicting testimony - that it was because of the headaches he was suffering; or, alternatively, that it was because he would make very little, owing to a garnishing order attached to his earnings.

  • There is a suggestion in the file that he would have been laid off on June 7, 2002, as the company had a general lay-off on that date. However, before the panel, the manager testified that the claimant would very likely have been kept on throughout the summer, as there was other work available he was capable of performing.
The appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 5th day of January, 2004

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