The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 19, 1999, at the employer's request. The Panel discussed this case on October 19, 1999, and again on November 16, 1999.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On December 23, 1998, the claimant submitted an application for compensation benefits regarding a fall at work which allegedly occurred on December 8, 1998.  The claimant’s description of injury was as follows:

“I slipped and fell on a snow covered aluminum door that was out behind the maintenance shop at [employer’s name] in Winnipeg.  I fell on my left elbow, knee and hip. The door on the ground was just outside the rear exit of the maintenance shop.”

An Employer’s Report of Injury form, dated December 12, 1998, indicated the following with respect to the December 8th incident:

“Worker allegedly slipped outside of a maintenance facility on a broken door.  An eyewitness disputes this claim.  Attached is 2 eyewitness signed statements.”

In a signed statement, dated December 10, 1998, a co-worker stated the following:

“On Monday afternoon December 8, 1998 approximately 12:00 p.m.  I was parked at the southeast corner of the maintenance building.  I had just dropped an empty trailer in the yard.  I noticed [the claimant] who had just arrived in Winnipeg Terminal.  He stayed in his truck approximately three minutes, then he got out of his vehicle.  He walked to the garage door at the southeast corner by the washbay.  I was looking at him.  As he approached the door, I saw him kick something on the ground.  He entered the building.  About 1 minute later, I noticed [the service manager] and [the claimant] looking down at something on the ground.  Approx. 20 minutes later I noticed claimant filling out compensation forms.  He told me what happened was that he fell on a piece of tin on the ground outside hurting his back.  I told him that was not true as I was watching him the whole time, that he was scamming a claim.  He blushed and kept writing his claim form.  I then told [name] and [name].”

In a signed statement, dated December 11, 1998, the service manager indicated:

“At approximately 12:00 p.m. on December 8, 1998, [the claimant] approached me in the 3rd bay of the trailer shop just coming from the southeast walk in door.  He said to me that he just fell and hurt his back outside the door because of an old door lying on the ground.  I immediately looked to see if he had any traces of snow on his body and he did not.  We immediately went out to look at the spot where he apparently fell and there had been no sign of someone falling in that area as the snow was very light.  Also, when [claimant] was walking toward me in the shop and when we walked to the outside, he showed no signs of a strained back.  It wasn’t until we came back in the building that he walked with a limp.”

On January 11, 1999, a Workers Compensation Board (WCB) adjudicator called the claimant by phone and documented that prior to the accident, the claimant said he was in the building looking for a trailer that he was supposed to pick up.  He went outside to see if the trailer was there.  It was at this point that he slipped on a metal piece hidden in the snow injuring himself.  The claimant indicated that he got up, dusted himself off, looked around for any witnesses, saw none, and then went back to his truck.  The claimant indicated that many of the trucks are satellite dispatched, with a keyboard and display right in the truck.  The claimant said he went to the truck to communicate that he had found the trailer and that he then went back into the building.  The claimant said he was limping and was obviously in pain right after the fall.  His hip and shoulder were sore.

The claimant stated that after he was in the building he ran into the service manager and told him about the buried metal. The service manager then told a young mechanic (claimant did not remember his name) to pick up the piece of metal and throw it into the garbage. When the claimant left the building he noticed the piece of metal in the garbage. The claimant stated that he had no prior problems with his hip or shoulder and that both were fine prior to the start of his shift.

The adjudicator added that he read to the claimant parts of the two letters received from the service manager and co-worker, dated December 10th and 11th, 1998. The claimant, in response, stated that during the time of the accident, he was likely hidden from the service manager’s view. The adjudicator also indicated to the claimant that the co-worker/witness saw him kick something on the ground and asked him what it was. The claimant replied that he didn’t remember kicking anything unless he kicked to see what he had slipped on. “I don’t remember kicking anything. The only thing I can imagine is kicking to see what I had slipped on.”

An employer’s representative informed the adjudicator on January 20, 1999, that the co-worker/witness knew the claimant had just arrived in the terminal because he saw the claimant drive his truck in front of the witnesses’ truck before parking it.

On January 19, 1999, the claimant provided a WCB field representative with a sworn statement. The claimant indicated on December 8, 1998, that he drove around the employer’s yard looking for the trailer he was supposed to take to Fort Frances. As the trailer wasn’t in the yard he pulled up behind the shop and got out of his truck, and went to walk inside the shop thinking maybe the trailer was inside getting worked on.  Sure enough the trailer was inside. The claimant said he went and talked to the trailer mechanic who said it would be awhile before the trailer would be ready so he went out to his truck to send dispatch a message. He had just walked out the back door of the shop (a different door from the one he had entered) and stepped on a snow covered aluminum trailer door and slipped. The claimant said his left foot went out from under him and he fell landing on his left side hitting his left knee, elbow and hip.

The claimant said he then got himself up and shook himself off. He looked around to see if anyone had seen him fall but he didn’t see anyone. He continued on to his truck to send a message to dispatch about the trailer. He limped back inside the shop and reported it to the shop supervisor. He stated that he took the shop supervisor outside and showed him where he had fallen. The shop supervisor didn’t really say much but when they went back inside, he told a young mechanic’s helper to go remove the door. The claimant then went upstairs to the driver’s room and called dispatch to let them know what happened. The claimant advised that as he limped to the office the young mechanic had stopped him to ask exactly where the door was and he told him. He then proceeded to limp to the office to complete a WCB form. The claimant then left work and noticed that the door had been picked up and put into the garbage bin outside the shop. He then went home to rest until his doctor’s appointment.

In a sworn statement, dated January 19, 1999, the service manager indicated the following:

“[The claimant] approached me in the shop and said he fell and hurt his back outside the shop on a piece of metal.  I went outside with him and he showed me where this occurred.  The snow was only disturbed slightly and it did not appear as if anyone had fallen and [the claimant] did not have snow on him.  I did not question him about it as he normally would not report to me.  He had only said he fell and hurt his back, no other body parts were mentioned.  As well, when [the claimant] first approached me in the shop he was walking normal.  It wasn’t until after we went back into the shop that he began to limp.  It was definitely a slippery surface, I will not deny that and I immediately told one of the mechanics [name] to remove the door because someone had just slipped on it.  I am not aware if [the claimant] sustained an injury away from work nor am I aware of his extracurricular activities.  I don’t know where [the claimant] got the idea of a ‘young mechanic’.  [The mechanic] is an older man and he himself removed the door.  I asked [the mechanic] personally if he removed the door himself and he told me he did.”

On January 19, 1999, a sworn statement was taken from the mechanic who indicated the following:

“I only saw [the claimant] the one time on December 8, 1998.  He had come up to me and I told him that his trailer was ready.  He told me not to worry about it because he just hurt himself.  I asked him what happened and he fell outside and was going home.  I didn’t see him walking and don’t recall if he appeared to be in any pain.  The [service manager] came to me and asked me to remove a trailer door that was laying outside so no one would get hurt.  I went outside and removed the door.  I was not aware of the door being there prior to [the service manager] telling me.  The door was covered with snow.”

On January 28, 1999, a sworn statement obtained from the co-worker/witness indicated, in part, the following:

“I didn’t see him getting out of his truck because his door was on the opposite side where I could see him.  I walk towards the door of the garage.  I saw him sort of open the door and then stop and back up slightly.  He was looking at the ground and then was kicking something with his foot on the ground.  Sort of scraping the snow away.  He then went into the shop.  He was not limping at the time.  Unless he fell so fast that I didn’t see him but I was watching him the entire time.  About 30 seconds later I saw him come outside with [the service manager].  I don’t recall what [the claimant] looked like or how he was walking at that time.  They both went back into the shop.  I only saw him go into the shop the one time.  I only saw [the claimant] come in and out of the same entrance, the southeast door.  There was no chance that he came out of another door.  The east and west doors are too far away.  It wouldn't have made sense for him to go out those doors because his truck was parked right at the southeast door.  The only other doors are the large shop doors.  About 20 minutes later I saw [the claimant] at the desk inside and he was limping.  I asked him what happened and he told me that he fell outside.  I started laughing and I said I was watching him the whole time and didn’t see him fall.  He got red in the face and said ‘bullshit, I fell’.  Yesterday, I received a phone call from [the claimant] asking me to recant my story.”

On January 29, 1999, a WCB adjudicator spoke with the witness/co-worker who said that he was looking at the claimant’s truck because it was not the claimant’s usual truck.  The truck apparently belonged to another employee who was off on compensation.  The co-worker/witness said that it was possible not to see the claimant leave the truck, enter the building, do a quick look around and exit the building, fall and return to his truck, as he was doing his paper work while sitting in the truck.  The co-worker volunteered that he did not think the claimant was a liar and that it was normal for employees to speak roughly to each other in jest. With regard to the comment made by the co-worker that the claimant asked him to recant his story, the co-worker told the adjudicator that he had some discussion with the field rep about the wording of his statement.  At no time had the claimant asked him to lie.  The claimant simply questioned him about his assertion that he had been watching the claimant the whole time.

On February 4, 1999, the WCB advised all parties the claim for compensation was acceptable as the weight of evidence established that an injury had occurred at work.  The WCB acknowledged that the claimant slipped on a snow covered metal door and injured his left knee, elbow, back and hip on December 8, 1998, after his first exit from the building.  It appeared that the claimant’s second entry into the building was witnessed by the claimant’s co-worker from his truck.  The co-worker said it was possible for the claimant to have entered and left the building the first time without being observed.  The shop supervisor also confirmed the presence of a slippery door on the ground at the place where the claimant claimed to have slipped.  He also acknowledged that the claimant reported the injury to him immediately after it occurred.   In addition, the history of injury reported to the doctor by the claimant was consistent with his description in the sworn statement.

On March 4, 1999, the employer appealed the acceptance of the claim.  The employer was not disputing the fact that the claimant was suffering from an injury as the medical evidence supported this fact.  However, what was in dispute was whether the injury took place while on the employer’s premises and “arising out of and in the course of employment”.  The employer indicated that two eye witnesses signed written statements contradicting the claimant’s claim.  These two individuals did not have anything to gain by making false accusations.

In a decision, dated April 23, 1999, Review Office confirmed the decision to accept the claim for a personal injury arising out of and in the course of the employment.  Review Office stated that in this particular case, although the worker’s fall was not witnessed, his report to the employer and to his physician were consistent.  The employer reported the worker was limping while coming out of the office on the day of the accident.  A mechanic and the service manager have confirmed that the worker reported slipping on a metal door.  The service manager later requested the mechanic remove the metal door that was laying outside so no one else would get hurt.  The mechanic confirmed that he did remove the door as requested on the date of accident.

Review Office concluded that there was no evidence to prove the contrary and found the weight of evidence to support the worker’s sustaining personal injury arising out of and in the course of employment on December 8, 1998 and was therefore entitled to benefits.

On May 25, 1999, the employer appealed the acceptance of the claim and an oral hearing was held on October 19, 1999.  The hearing was adjourned sine die to allow the submission of final written arguments from both the employer and the worker advisor.  On November 16, 1999, the Panel met to render its final decision.  It considered submissions from both the worker advisor and employer dated October 29, 1999, and November 10, 1999, respectively.

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

(a) A willful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

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

In determining whether or not there had, in fact, been an accident, we carefully reviewed the evidence of the claimant and of two independent witnesses. This process raised significant discrepancies with respect to the claimant’s version of the events surrounding his alleged accident. In a statement given to the WCB, the claimant described the incident as follows:

“I drove around the yard looking for the trailer I was to take to Fort Frances. The trailer wasn’t in the yard so I pulled up behind the shop and got out of my truck and went to walk inside the shop thinking maybe the trailer was inside the shop getting worked on. I went inside the shop and sure enough the trailer was inside. I went and talked to the trailer mechanic (don’t know name but of European descent). He said that it would be awhile before the trailer would be ready so I went back out to my truck to send dispatch a message from my truck because we are hooked by via satellite. I had just walked out the back door of the shop (a different door from the one that I had come in from) and I stepped on a snow covered aluminum trailer door and I slipped. My left foot went out from under me and I fell landing on my left side hitting my left knee, elbow and hip. I got myself up and shook myself off.  I looked around to see if anyone saw me fall but didn’t see anyone. I felt pain in my knee, elbow and hip and a bit of pain into my left shoulder. I continued on to my truck and sent a message to dispatch about the trailer. I limped back inside the shop and reported to the shop supervisor, (name of person).”

The mechanic testified about his encounter with the claimant on the date in question. 

Q.  Do you recall having any conversation or contact with Mr. [the claimant] on that day?

A.  Well, yes, when he came to the shop I was working inside the shop on a trailer that he was supposed to take somewhere. So I remember him coming inside and he told me, he says – no I says, “There is your trailer, it’s ready, you can have it now.” And he said, “Forget about it now,” he says, “I hurt myself outside”, so he’s going to the doctor or whatever, somewhere.   

Also of importance was the testimony of a fellow employee who had occasion to observe the claimant at the worksite around the time of the alleged incident.

“On Monday afternoon December 8, 1998 approximately 12:00 p.m. I was parked at the southeast corner of the maintenance building.  I had just dropped an empty trailer in the yard.  I noticed [the claimant] who had just arrived in Winnipeg Terminal.  He stayed in his truck approximately 3 minutes, then he got out of his vehicle.  He walked to the garage door at the southeast corner by the washbay.  I was looking at him.  As he approached the door, I saw him kick something on the ground.  He entered the building.  About 1 minute later, I noticed [the service manager] and [the claimant] looking down at something on the ground.  Approx. 20 minutes later I noticed [the claimant] compensation forms.  He told me what happened was that he fell on a piece of tin on the ground outside hurting his back.  I told him that was not true as I was watching him the whole time …”.

We prefer to attach more weight to the evidence of the two independent witnesses as opposed to the claimant’s testimony.  Accordingly, we find that the claimant did not incur an accident arising out of and in the course of his employment as alleged.  Therefore, the claim is not acceptable and the employer’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of December, 1999