The Appeal CommissionThe Workers Compensation Act of Manitoba

As stated in the preamble, this appeal deals with claim acceptability. At the heart of this appeal is whether the worker suffered an accident at work on March 2, 2006.

Background

The worker works as a subcontractor in logging. His job consists of cutting trees with a chainsaw, attaching them to a skidder, cutting them into eight foot lengths and throwing the end pieces into a pile. He is right hand dominant.

The Incident

On March 16, 2006, he filed a claim with the WCB for a left shoulder and neck injury that he related to his work activities on March 2, 2006.

The worker was not sure what had caused his injury but thought it might have been when he pulled himself up onto the skidder. The first step of the skidder is approximately two feet from the ground. He therefore has to grab a handle just above his head with his left hand and pull his entire weight onto the skidder.

At the hearing, the worker testified that when he pulled himself up onto the skidder on March 2, 2006, he felt a pull in the muscle between the left side of his neck and shoulder. That muscle progressively tightened throughout the day but he did not think much of it given that his job is physically demanding.

The worker did not take stock of the pain and stiffness in his shoulder until he was on his way home from work. By the time he got home, the pain had increased and by the next morning it was worse. He did not report the accident immediately to the WCB as he thought it would heal. Instead, it got worse and he eventually sought medical treatment on March 15, 2006. He did however ask his brother to notify the employer. His brother sent a note to the WCB confirming this.

The employer disputed that the worker injured himself at work on March 2, 2006 and denied that the worker’s brother notified him on March 3, 2006. He said that he saw the worker on both March 2 and 3, 2006. The worker did not tell him about injuring himself and he did not notice anything wrong with him. However, he did lay the worker off on March 3, 2006 due to a shortage of available work. The worker says that he never received a lay-off slip and was not formally told of the lay-off until March 16, 2006.

The Medical Evidence

On March 15, 2006, the worker saw his family physician. The family physician’s first report to the WCB notes that the worker advised him that his symptoms started March 2, 2006. On examination he did not find any nerve root irritation. The worker was able to elevate his arm with pain. It was his opinion that the worker likely suffered a muscle injury to his left rotator cuff. He prescribed some anti-inflammatories and physiotherapy.

The worker was also seen by a chiropractor on April 3, 2006 who diagnosed him with acute left cervical and left rotator cuff strain.

An x-ray taken on April 6, 2006 ruled out calcific tendinitis. No bone or joint abnormality was detected.

After physiotherapy treatment, the worker was able to return to work gradually as a logger in April 2006. At the hearing, the worker testified that his left neck and shoulder have not bothered him since that time.

On June 1, 2006, a WCB orthopaedic consultant to Review Office reviewed the worker’s file. It was his opinion that there was no clear diagnosis of an injury that could be related to a workplace accident. He thought that if the worker had sustained significant trauma, he would have felt the effects of the injury immediately. In light of this, he thought the worker more likely suffered from bursitis or non-calcific tendinitis which are degenerative in nature and not related to a workplace accident.

Worker’s Position

The worker says that his claim is acceptable as he suffered a workplace injury that was reported to his employer the day after it occurred.

Employer’s Position

The employer disputes that the worker suffered a workplace injury on March 2, 2006. He says that he never saw an accident and was never told of one until two weeks later.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the worker suffered an accident within the meaning of subsections 4(1) and 1(1) of The Workers Compensation Act (the Act). A balance of probabilities simply means that we must be satisfied that it is more likely than not that an accident occurred. We are able to make this finding.

The employer disputes that an accident occurred for two reasons: he did not notice anything when he saw the worker on March 2 or 3, 2006, and he was not notified of an accident until March 16, 2006.

Subsection 17(1) of the Act provides that a worker shall provide the employer with notice of an accident as soon as practicable, and not later than 30 days after the accident. Failure to provide notice is a bar to a claim unless the worker can rely on one of the exceptions provided for in subsection 17(5).

In the case at hand, the worker’s claim is not barred as he did provide notice within 30 days of the alleged accident. The argument about the tardy reporting is therefore really designed to place doubt on the occurrence of an accident. In other words, if the worker did have an accident as alleged, why did he not report it?