Public Decisions | The Appeal Commission

Decision #66/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 14, 199, at the request of the employer's representative. The Panel discussed this appeal on April 14, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

An Employer's Report of Injury or Occupational Disease dated September 22, 1997, indicated the claimant was dusting and vacuuming shelves at ground level. The vacuum was on a push cart approximately 3 feet high. The vacuum was pulled off the cart striking the claimant on the right temple. The date of injury was reported as September 19, 1997, and was reported to the employer that day. The injuries reported were a slight headache and damaged eye glasses.

On October 16, 1997, primary adjudication advised the claimant that WCB would not accept responsibility for costs or repair of his eyeglasses as he did not suffer a personal injury which was required under Section 27(3) of the Workers Compensation Act (the Act). Primary adjudication noted that the claimant's supervisor confirmed that the claimant had a headache and that he saw his broken eyeglasses but was unable to substantiate the existence of a visible personal injury such as a bruise or scratch.

Subsequently, the claimant's supervisor contacted the WCB questioning why the WCB was not covering the costs or repair of the claimant's eyeglasses. The adjudicator explained to the supervisor that when contacted previously he told WCB staff that no personal injury was seen. The supervisor, at this time, told the adjudicator that he saw a bump on the claimant's forehead and noted that the claimant did not seek any medical treatment.

On October 21, 1997, primary adjudication obtained a sworn statement from the supervisor. The supervisor indicated that the day the claimant broke his glasses he did not see any sign of a physical injury, i.e. no cut, abrasion, swelling, discoloration or anything unusual and that's what he told the timekeeper. He stated the claimant told him there was a bump where he got hit. The supervisor further stated however, that he did not see a lump but did see the broken glasses.

Primary adjudication subsequently wrote to the claimant indicating that no change would be made to its earlier decision as personal injury could not be substantiated. Primary adjudication stated that it accepted responsibility for the injury itself, meaning it acknowledged that an injury occurred.

On October 22, 1997, the claimant telephoned the WCB stating that the storekeeper III saw the injured area. The witness was placed on the phone and he told the adjudicator that he heard the accident, turned around, and went to ask the claimant if he was okay. The witness said he could see a reddish mark, maybe a scrape on the claimant's right temple below the hairline.

In a statement dated October 29, 1997, the storekeeper stated he was at the shop the day the claimant broke his glasses. He stated that he heard a sound and when he turned around he saw the vacuum on the floor along with the claimant's eyeglasses. The claimant had a red mark on the left side of his forehead, just above the temple. He was two feet away from the claimant. The storekeeper said you could not really see the mark from the front as he was to the side of the claimant. About one hour or so later in the day you could see that the mark was starting to swell.

The Field Representative who took the storekeeper's statement on October 29, 1997, wrote a memo to file dated October 29, 1997. The Field Representative was of the view that the statement given by the storekeeper should be considered "suspect" as the witness, after his statement was taken, caught up with the Field Representative to say he made a mistake and that the red mark was actually on the right side and not the left side as he had stated earlier. On October 30, 1997, primary adjudication again wrote to the claimant stating that much of the information presented on his file was contradictory and that it had not been substantiated that personal injury occurred.

On November 3, 1997, the claimant requested the Review Office to reconsider primary adjudication's decision on the following basis:

to claim that the witness' information was contradictory based on a simple and common mistake versus left and right, was completely unfair.
to expect either of the witnesses to make a correct medical judgment and statement of injury, when neither are trained in this field, was again unfair.
the reddish mark that was seen by one witness and not the other was easily explained. The storekeeper looked at the injury a lot more closely; the stores supervisor did not examine the injury at all, only the broken spectacles; the storekeeper noticed the red mark a full hour after it occurred, thus enabling the mark to develop.

In a submission to Review Office dated December 18, 1997, the employer's representative stated, in part, "....we have difficulty accepting that Section 27(3) of the Workers Compensation Act has been satisfied. We believe that the initial reports, indicating that no personal injury had occurred, would, in our opinion, be the more accurate. The subsequent attempts on the part of Mr. [the claimant] to establish that personal injury did, in fact, occur must be looked upon rather dubiously given the noted discrepancies."

On January 9, 1998, the Review Office determined that responsibility could be accepted for the costs in regard to the worker's damaged eye glasses. They noted that although the worker's supervisor was not aware of any personal injury, the co-worker who was interviewed on October 29, 1997, saw a red mark and later a swelling where the mark was seen. Although the co-worker could not specifically state whether it was on the left or the right side, Review Office did not consider this to be unreasonable given that it was six weeks following the incident and therefore he may not have been 100% sure whether it was the left or right side. It was confirmed, however, that there was a red mark and swelling had occurred later.

The employer's representative appealed the Review Office's decision to the Appeal Commission on January 28, 1999. On April 14, 1999, an Appeal Panel hearing was conducted.

Reasons

The issue in this appeal is whether the claim is acceptable. The relevant subsections of the Workers Compensation Act (the Act) are subsections 1(1) which defines accident and subsection 27(3) which provides for compensation for repair, loss, or breakage.

Subsection 1(1) states:

Definitions

1(1) "accident" means a chance event occasioned by a physical or natural cause; and includes

(b) any

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

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

Subsection 27(3) states:

Compensation for repair, loss breakage

27(3) In addition to any other compensation under this Part, the board may pay to a worker who suffers an injury resulting from an accident or sustains damage to an artificial limb arising out of and in the course of employment the cost, or part of the cost, of repairing or replacing the worker's eyeglasses, contact lenses, dentures, hearing aid, artificial eye, artificial limb and any other prosthetic device, and clothing worn at the time of the accident.

Relevant Workers Compensation Board (WCB) policy is Section 44.120, Repair and Replacement of Damaged Personal Appliances. The policy states in part:

This policy establishes when the WCB will cover the cost for the repair or replacement of these items, consistent with regular adjudicative practice that the standard of proof to establish that a worker suffered "personal injury by accident" is based on a balance of probabilities.

A. Policy

FOR ACCIDENTS OCCURRING ON OR AFTER JANUARY 1, 1992

1. The WCB will pay for the repair or replacement of personal appliances and/or clothing if the damage or loss of the personal appliance or clothing conforms with the following criteria:

(ii) the accident must have caused either a personal injury or damage to an artificial limb.

2. Compensation for damage or loss of a personal appliance (or clothing) may be paid where information establishes on a balance of probabilities that there was a personal injury caused by the work related accident.

We reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant suffered a personal injury by accident arising out of and in the course of employment and that responsibility should be accepted for the costs associated with the resultant damage to the workers eyeglasses. In reaching this conclusion we placed weight on the following evidence:

the Employer's Report of Injury or Occupational Disease dated September 22, 1997 reveals that the worker reported immediately to his supervisor at 0950 a.m. on September 19, 1997 that an injury had occurred at 0945 a.m. on that day;
in the same report when asked to describe fully what happened to cause the injury, the claimant's supervisor indicates that the claimant was dusting and vacuuming at ground level, with the vacuum on a cart above him, when the vacuum was pulled off the cart hitting the employee in the right temple;
in addition, when asked to state all injuries reported, the supervisor records a slight headache and damaged eyeglasses and the name of a witness to the accident;
in a WCB memorandum to file dated October 16, 1997 an adjudicator confirms that the claimant advised his supervisor that he had a headache and that the supervisor saw the broken glasses although he did not actually see the accident occur;
in a note to file dated October 22, 1997 the witness identified on the Employer's Report of Accident informed the WCB adjudicator that he heard the accident, turned round, asked the claimant if he was all right and could see a reddish mark on the claimant's right temple. Although in a later statement this witness had some difficulty recalling which temple was involved we place no weight on this in light of the fact that the information was provided so long after the compensable accident;
in relation to the above noted evidence the panel observed at the hearing that the claimant has a florid, reddish complexion which would make later recall of the location of a reddish mark more difficult;
at the hearing the claimant provided evidence which was consistent with his previous evidence on file that he was struck on the right temple by the falling vacuum which resulted in the immediate development of a headache and considerable damage to his eyeglasses. This evidence is corroborated by that of his co-worker who indicated to the WCB adjudicator on October 22, 1997 and in his sworn statement of October 29, 1997 that he heard the accident and was immediately concerned for the claimant and asked him if he was all right.

In light of all the evidence noted above we accept the evidence of the claimant as consistent and corroborated and therefore credible. We find that the weight of the evidence supports the occurrence of personal injury by accident as defined by section 1(1) of the Act and that the claim for the costs of eyeglasses satisfies the requirements of WCB Policy 44.120.

We find that the evidence clearly supports a temporal relationship between the accident occurring, the damage to the claimant's eyeglasses and the onset of his headache which is further supported by the subsequent evidence of a mark on the claimant's right temple. In this regard we place greater weight and reliability on the most proximate evidence to the accident as outlined above.

The evidence on file and given at the hearing is consistent with the occurrence of a blow to the head which caused a headache and damaged the claimant's eyeglasses and therefore we find, in the circumstances of this case, that the development of the headache is the resultant injury stemming from the accident. Therefore the employer's appeal is denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of May, 1999

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