Decision #14/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on December 9, 2003, at the employer's request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 26, 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a left heel injury that occurred at work on May 23, 2003. The claimant stated that his injury occurred while he was on a ladder putting boxes away and the ladder slipped, causing him to fall 20 feet to the ground. The accident was reported to the employer on the same day.

The Employer's Accident Report with regards to this claim stated the following: "Employee was negligent, did not follow directions and caused the injury - we are not taking responsibility for this one!"

Medical information revealed that the claimant attended a local hospital on the day of accident. The diagnosis rendered was a fracture of the left calcaneus. In a follow-up report dated May 25, 2003, an orthopaedic specialist recommended that the claimant stay off work and that his recovery would be slow. Surgical intervention was not necessary. It was felt that the claimant would not be back at work until the middle of August.

In a memo to file dated June 5, 2003, a WCB adjudicator documented the following information after speaking with the employer:

"She said that clmt [claimant] did not follow direction;

They asked him to move the boxes from one area to another using the portable staircase;

This ladder was an extension ladder that went about 15 feet in the air;

[claimant's name] said he would use the ladder;

The warehouse man said its not safe and to hang tough while he got the portable ladder;

Clmt did not listen and went up ladder and fell;

He knew and told (sic) that it was not safe."

The adjudicator advised the employer that misconduct would not apply in this case as it appeared that the claimant did not use the ladder knowing he would get injured.

The adjudicator then called the claimant to find out if he was told to use the portable staircase. The claimant stated that the portable staircase extended about 10 feet and the boxes that he was placing up had to go 20 feet high. Therefore, the portable staircase would not reach. The claimant then went up an extension ladder to see if it was safe. When he went up the ladder the second time, he took a box with him and when he was at the level height to place the box the ladder started to slide. The ladder was not extended all the way.

The claim for compensation was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant commencing May 24, 2003.

On June 2003, the employer appealed the acceptance of the claim stating that the worker refused to follow instructions, therefore causing himself bodily injury. The employer submitted a statement (undated) from the warehouseman with the submission.

In a decision dated July 8, 2003, Review Office confirmed that the claim was acceptable. Review Office indicated that it was evident that the claimant clearly did not follow the employer's instructions. "However, prior to ascending the ladder with the carton, the worker climbed the ladder empty handed, to ensure his safety. The worker's explanation for not following the advice of his employer, was that the portable staircase was not high enough, for carton placement."

Review Office noted that the claimant was performing an employment related function when his accident occurred. As he tried the extension ladder first without the carton, Review Office did not believe it had been established that the worker demonstrated a reckless disregard for his safety. Review Office was of the opinion that the worker was not guilty of serious and wilful misconduct and therefore the claim was acceptable. On October 7, 2003, the employer disagreed with Review Office's decision and a non-oral file review 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 keeping 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. An accident is defined as, "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."

As the background notes indicate, the employer has challenged the WCB's acceptance of this claim on the basis that "Mr. [the claimant] did not follow proper instruction therefore causing him bodily injury."

It should be remembered that Workers Compensation is a no-fault system. Regardless of whether or not the worker was contributorily negligent (i.e. the worker's carelessness was a contributory cause of the accident) is irrelevant. The accident sustained by the claimant, resulting in injury, arose out of and in the course of his employment, while he was performing his regular work duties.

We therefore find the claim to be acceptable. Accordingly, the employer's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 20th day of January, 2004

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