The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on April 5, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on April 5, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On May 24, 2005, the worker contacted the call centre at the Workers Compensation Board (WCB) to report an injury that occurred at work on April 24, 2005. On this date, the worker claimed that he injured his ribs when he slipped and fell onto the rim of a furnace while working on a 12 foot deck. The worker said he did not think anything about the accident until the next day when he started to cough up blood. He then reported the accident to his employer. The worker further advised the WCB that he had another job helping farmers during seeding time.

The Employer's Accident Report dated May 25, 2005 indicated that this was not a valid claim. It was noted that the worker had not worked since April 14, 2005. On Sunday, April 17, 2005, the worker contacted his production manager at home to advise that he injured his ribs when he fell off a seed drill and landed on a hitch while working with a local farmer.

On April 18, 2005, the worker attended a hospital emergency facility for treatment. He advised the attending physician that he fell and hurt his ribs and that he now had pain with coughing. The diagnosis rendered was a fracture of the 8th rib.

A Doctor's First Report showed that the worker was examined on April 18, 2005 and the date of injury was recorded as being April 17, 2005. The diagnosis rendered was contusion to the chest wall.

On June 14, 2005, a WCB adjudicator documented the following conversation that he had with the worker during a telephone conversation:

"Worker says the accident happened on April 23, 2005. He was working alone so there was no one to report to. He continued working until April 28, 2005 with difficulty. He doesn't recall if he mentioned it to anyone. He told [co-worker], his ribs hurt, but he didn't give an accident history.

Claimant confirmed he worked an entire week before he went to the hospital. Advised worker the dates don't make sense as the Dr. indicates he was treated on April 18/05 for an accident on April 17/05. Worker says maybe he made a mistake with the dates and the accident happened on April 17/05. I advised worker that doesn't make any sense either, because he worked a week before he sought treatment, so that would mean the accident happened on April 9/05. He says he doesn't have a record of the dates so he isn't exactly sure when it happened. He says the accident happened on a Saturday when he was checking the temperature reads on a furnace he was working on.

I asked the worker about the incident with the farmer. He said he was only giving the farmer a hand, he wasn't getting paid. Worker said the incident, slipped off a tyre (sic), happened a week after the workplace accident."

On June 15, 2005, the adjudicator called the production manager. He advised that the worker called him on April 17, 2005 and said he would not be in for the rest of the week because he injured his ribs when he fell on a hitch while working for a farmer.

On June 27, 2005, the co-worker advised the WCB that he did not remember the worker telling him anything about an accident.

In a decision dated July 6, 2005, the worker was notified that the WCB was not accepting responsibility for his rib injury based on the uncertainty of the date of the accident and the information provided by his employer and co-worker.

On August 31, 2005, a worker advisor appealed the decision to Review Office. In a decision dated September 16, 2005, Review Office confirmed that the claim was not acceptable. Review Office found insufficient evidence to establish that the worker sustained an accident arising out of and in the course of his employment. On December 2, 2005, the worker advisor appealed Review Office's decision and a hearing was requested.

On March 23, 2006, the worker advisor provided the Appeal Commission with additional medical reports dating from April 18 to July 20, 2005.

Reasons

The issue before the panel was whether the worker's claim is acceptable. For this appeal to be successful the panel must find that the worker was injured in a workplace accident. The panel was not able to reach this conclusion. The panel finds, on a balance of probabilities, that the worker's claim is not acceptable.

Worker's Position

The worker attended the hearing with a worker advisor who made a submission on the worker's behalf. The worker answered questions posed by his representative and the panel.

The worker described the injury which he said occurred on a Sunday night. He was working on a furnace when he tripped on a lip on the edge of a furnace platform. He fell and hit his side on a ledge which is about ten inches high. He advised that initially his side was sore and he had a shortage of breath. He advised that he "walked it off" at that time. He told the panel that he informed a co-worker who arrived near the end of the shift about his accident. He then went home but the pain increased and he started coughing. He then attended a local hospital. He was told that he had fractured some ribs.

The worker advised that he informed his employer that he fell but did not go into detail about the incident. He described his contact with his supervisor as follows:

"I told him that I had fell. I didn't go into detail where, I just said - I wasn't really too concerned, like at the time, I didn't want him to think I was trying to shaft him or take advantage of a situation or anything.

I told him at the time that I had slipped on a tractor hitch, which if anyone is familiar with farm machinery, hitches are only a foot and a half off the ground, so I can't damage my ribs on a tractor hitch, which it was his impression."

At the hearing, the worker denied that he injured his ribs in the tractor hitch incident.

Regarding his conversation with his co-worker, he advised that he was not aware of why his co-worker did not confirm their conversation about the incident.

The worker advised that he has still not completely recovered from the injury and that on some days his ribs are sore. He is seeking benefits for the time that he was not able to work. He advised that he was terminated from his job.

The worker's representative referred to medical reports which provide a diagnosis that is consistent with the mechanics of the alleged workplace accident. The representative also referred to subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) and WCB policy 44.05 which she considered to be applicable to this claim.

Employer's Position

The employer was represented by two staff. The representatives advised that the employer was opposed to the acceptance of the claim because the worker had initially called his supervisor and advised that he hurt himself in a non-work accident. Information on file and referenced by the employer representatives at the hearing indicates that the worker called his supervisor Sunday April 17, 2005 and advised that he had fallen off a seed drill and landed on the hitch hurting his ribs. The worker advised the supervisor that he would not be at work on Monday.

Analysis

The panel has considered all the evidence including the evidence provided at the hearing and the arguments advanced by the parties and finds, on a balance of probabilities, that the claim is not acceptable. The panel finds that the evidence does not establish that the worker was injured in an accident that arose out of and in the course of employment as required by the Act.

The panel notes that the worker initially advised the employer that he was injured in a fall from a seed drill. The worker acknowledged that he told his employer that he was hurt in a fall on a tractor hitch. The panel finds that the worker has not given a credible explanation for providing this information to the employer and later providing a different explanation. The panel places more weight on the initial report than the version provided later in the week.

The panel notes the worker's evidence that he told a co-worker that he was injured but notes that the co-worker denies receiving this information. As well the panel notes that the worker did not advise his physician or the hospital that the injury was work related.

The panel finds gaps in the worker's evidence regarding the alleged incident. For example the worker could not provide a firm date on which the alleged incident occurred; although he indicated it was a Sunday night, numerous dates are provided. Nor was the worker able to confirm whether he worked after the injury or describe the symptoms that he worked with.

In making a decision on the issue before it, the panel applies the civil standard of a balance of probabilities. In this case the panel is unable to find that a workplace accident occurred as there is insufficient evidence to establish this. The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of June, 2006