The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 13, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits and services.

Decision

That the claim is acceptable; and

That this issue was not heard as it has yet to be determined by the Review Office.

Decision: Unanimous

Background

On December 3, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for a right shoulder, arm and neck injury that occurred on November 28, 2003. The worker stated that he was climbing into the cab of his truck with his right arm holding the grab bar when his left foot slipped off the icy step and his whole body weight was placed onto his right arm as he fell and twisted his body. The worker stated that he reported the accident to his employer on December 3, 2003.

In a telephone conversation with a WCB adjudicator on December 19, 2003, the worker stated that he was just finishing up his trip when the accident occurred. He stated that he had parked his truck and thought the injury would be fine without treatment or time loss. The worker indicated that he tried home treatment with no improvement. He stated that he called his chiropractor for an appointment and the earliest date he could get was December 2, 2003. After seeing the chiropractor, he then contacted his employer to report the compensable injury and the paperwork was done on December 2, 2003.

A Chiropractor's First Report dated December 3, 2003, confirmed that the worker was examined on December 2, 2003. The accident history reported to the chiropractor was the same accident history that was provided by the worker to the WCB. The diagnosis rendered was multiple subluxation complexes of the cervical, thoracic and lumbar spine, complicated by sprain/strain and facet irritation.

On December 19, 2003, the worker was advised by primary adjudication that his claim for compensation had been accepted as it was satisfied that the mechanism of injury described was consistent with the clinical findings provided by his physician. Primary adjudication stated that the difficulty in reaching this decision was due to the fact that the worker did not report his injury promptly to his employer nor did he promptly seek medical treatment for his symptoms. The worker was advised that it was his responsibility to report any workplace accident or incident to the employer without delay.

On January 29, 2004, an employer representative provided the WCB with the following concerns about the claim:

• while on compensation the worker contacted the employer once;
  
  
• the worker was hard to contact even after leaving several messages;
  
  
• the worker had no interest in his job after he was on compensation;
  
  
• prior to the injury, the employer had decided to terminate his employment (while still on probation) as he was inexperienced with winter driving;
  
  
• there were no witnesses to the accident and there was a delay in reporting an accident.

On March 3, 2004, a WCB case manager advised the worker that his benefit rate would be reduced based on his 2002 income tax returns. On March 12, 2004, the worker appealed this decision to Review Office.

In a letter to Review Office dated May 14, 2004, an advocate for the employer officially appealed the acceptance of the claim. The advocate argued that the worker's delay in reporting the injury and in seeking medical attention were factors that should be considered to deny the claim.

On September 9, 2004, a worker advisor wrote to Review Office on behalf of the worker. The worker advisor presented argument with respect to the issue of average earnings, stating that "schedule B, 'probable yearly earning capacity' would apply in this case." With respect to the issue of the acceptance of the claim, the worker advisor stated, "The claimant acknowledges that there was a slight delay in reporting but he denies that any other events took place that could have led to his injury. The case manager has correctly pointed out that the injuries are consistent with the mechanism of injury and the case has rightfully been accepted. It is noted on the file the claimant thought that his injury would be fine without time loss and when he had realized the severity of his injury he advised the employer. Under section 17 of the Act, failure to give notice is not necessarily a bar to any claim where it is concluded that the claim is a just one and ought to be allowed."

In a decision dated October 29, 2004, Review Office overturned the decision to accept the claim. Review Office outlined its position that the worker was well aware of reporting practices following a work related injury as he had a prior WCB claim wherein he had delayed in reporting an injury. Review Office did not accept the worker's reasons for his delay in reporting the November 28, 2003 injury. In Review Office's opinion, there was insufficient evidence to establish that the worker sustained injury at work on November 28, 2003. As the claim was not accepted, Review Office determined that the appeal by the worker addressing his benefit entitlement was moot. On November 9, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 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 subsection 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
      
3. an occupational disease

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

After a thorough review of all of the evidence, we find that the worker's described mechanism of injury is consistent with the diagnoses furnished by the various medical care givers. The worker's evidence was that he was climbing up the cab of his truck when his left foot slipped from underneath him. This event then resulted in his whole body weight being shifted to his right arm and as he fell his body twisted. The worker initially sought treatment from his chiropractor on the first available appointment date, which was 5 days post injury. The chiropractor proposed the following diagnoses: "multiple subluxation complexes of the cervical and lumbar spine complicated by sprain/strain." Additionally, the worker's family physician was consulted and his recorded diagnosis was cervical and upper back strain. We find that the worker sought medical treatment as soon as was practicable. We also find that the worker did in fact report his accident to both the WCB and the employer within a reasonable period of time (i.e., 5 days).

We further find based on the preponderance of evidence that the worker sustained an accident as defined by the Act which resulted in injury. Accordingly, the claim is acceptable and the worker's appeal is hereby allowed.

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 1st day of June, 2005