Decision #29/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 20, 2004, at the employer's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 25, 2003, the claimant was working as a cashier when the drive-thru restaurant window unexpectedly and forcefully closed onto her right hand and fingers when she reached up to hand over an order to a customer. The claimant attributed the accident to reaching above the window sensor with her hand. When treated by a physician on August 26, 2003, the diagnosis rendered was a soft tissue injury and the claimant was considered totally disabled from work.

During a September 25, 2003 telephone conversation with the employer's representative, a WCB adjudicator documented the following information:
"She has tried to duplicate the accident but has been unsuccessful in doing so. The window opens/closes from left to right and are controlled by sensors. She said the only possible way is a sensory malfunction or the timing of the sensors were altered. Emp confirmed with [shift-coordinator] clmt's finger was swollen on the DOA [date of accident]. Rationale for accepting T/L [time loss] was explained and understood by [employer representative's name]". …"
On September 25, 2003, the employer's workers' compensation consultant objected to the WCB's decision to allow the claim. According to the restaurant's manager, the consultant stated that the mechanism of injury did not make sense based on the following reasons:
  • the window does not close down, it shuts from the sides;
  • sensors are attached to the window and if any movement is sensed, the window automatically opens;
  • the sensors were tested following the alleged incident and they were found to be in good working order.
In a July 27, 2004 decision, Review Office confirmed that the claim was acceptable. Review Office based its decision on the medical information on file, the mechanics of the accident and the reporting of the incident to the supervising coordinator who noticed swelling of the claimant's right hand/fingers on the date of accident. Review Office found no evidence that the claimant was providing the WCB with a fraudulent claim. On August 31, 2004, the employer's workers' compensation consultant appealed Review Office's decision and an oral hearing was then 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 claimant sustained a soft tissue injury to her right hand when a drive-thru restaurant window unexpectedly closed on her right hand. The employer's representative questioned the mechanics of the injury. He presented visual as well as written evidence, which detailed the manufacturer's specifications with respect to the operation of a drive-thru window. In addition, he adduced further evidence that this particular drive-thru window had never malfunctioned since the restaurant was opened in February of 2000 and that several tests of the equipment failed to duplicate what had happened to the claimant.

While the evidence introduced by the employer's representative was compelling, we nevertheless accept the claimant's evidence as to the mechanism of her injury. We all know from personal experience that there is no absolute guarantee against mechanical breakdown either from normal wear and tear or from freak occurrence.

We found the claimant to be a credible witness. She had been at work for approximately 2 ½ hours prior to the window's malfunction and she had been performing her regular duties without any difficulty. Immediately following the incident with the window, the claimant's supervisor moved the claimant to a different job. As well, it was the claimant's supervisor who filled out the accident report and recorded the swelling of the claimant's right hand. It should also be noted that the claimant sought medical attention on the next day following the incident.

After thoroughly reviewing and considering all of the evidence, we find that the claimant did, on a balance of probabilities, sustain a right hand injury, which arose out of and in the course of her employment. The definition of accident under the Act having been satisfied, we further 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 10th day of February, 2005

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