Decision #52/99 - Type: Workers Compensation
An Appeal Panel hearing was held on February 17, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 24, 1999.
Whether the claim is acceptable.
That the claim is not acceptable.
On October 1, 1997, the claimant submitted an application for compensation benefits pertaining to a work incident that occurred on September 18, 1997, while operating a B.T. forklift. The claimant indicated that he was entering a freight elevator with the forklift when the front forks struck the edge of the elevator which was not level with the floor he was driving on. This caused the forklift to stop suddenly and he was thrown against the handle and bruised/strained his right side. Over the next 10-12 hours, the claimant indicated that the pain continuously became worse.
According to the employer’s report of injury dated September 22, 1997, the claimant reported the accident of September 18, 1997, on September 22, 1997. The employer stated that the worker injured his right rib when he was thrown against the steering handle of the B.T. forklift he was driving while entering elevator #3.
A Doctor’s First Report dated September 24, 1997, diagnosed the claimant with trauma to the right chest and abdominal wall. The worker’s history of injury was documented as “injured right chest and abdominal wall - fell over a bar on the fork (BT) lift.” The physician indicated that the claimant was totally disabled effective September 18, 1997.
On September 26, 1997, the employer wrote to the WCB and outlined their concerns regarding the circumstances surrounding the claimed injury and the delay in reporting of the accident. The employer commented that the claimant began his time loss on September 19, 1997, but did not report his injury until September 22, 1997. When the claimant called work on September 19, 1997, the “call in sheet” showed that the reasons for time loss was casual sick leave. The employer was further concerned that the claimant did not seek medical attention until 5 days after the claimed injury.
File documentation contains a September 22, 1997, statement from the claimant which he provided to his employer. The claimant stated that throughout the week of September 14-20 he was working as a porter. While entering elevator #3 on at least 5-6 occasions, the elevator would not properly level itself and the forks or feet of the monotainer would strike the floor or door of the elevator causing the loaded B.T. lift to suddenly stop. When this occurred the claimant indicated that he would bump the steering handle against his arm or chest. On September 18, 1997, this situation occurred numerous times and around 8:40 p.m. the claimant stated he was thrown against the steering handle of the B.T. lift and injured his right side. The claimant stated he did not experience prolonged pain until he rolled over in bed and felt a sudden discomfort on his right side. He stated he did not see a physician until September 24, 1997, which was the earliest date he could get.
In a statement to the WCB dated November 4, 1997, the claimant described the incident that occurred on September 18, 1997, in more detail. The claimant indicated that a co-worker was walking by when the accident happened but he could not say whether the co-worker actually saw the accident. The claimant stated that he told shop stewards and his supervisor about the elevator acting up as well as the Otis maintenance fellow. The claimant indicated that he told his supervisor that he had hurt his stomach shortly after the accident happened.
The claimant indicated that he phoned work the next day to report that he had an injury at work the previous night. The lady that he spoke with asked whether it was casual or sick leave and he told her that it was casual until he saw a doctor. The claimant stated that he went to work and told his supervisor that he had a doctor’s appointment which had not yet taken place.
On November 6, 1997, the WCB obtained a statement from the claimant’s supervisor. The supervisor stated that the claimant might have mentioned that his B.T. forklift hit the uneven surface of the elevator floor however he did not mention that he got injured. The supervisor knew for sure that the claimant complained about the elevator and that he called and booked off casual sick leave on September 19, 1997. It was not until September 22, 1997 that the claimant showed up and filled out a green card for the incident and reported the injury.
A statement was taken from the claimant’s co-worker dated November 6, 1997. He stated that he could not recall the exact date anymore but did recall the incident where the claimant hit the elevator with his forklift. He said that he saw the forklift come to an abrupt stop throwing the claimant forward into the machine but could not say what part of the machine that the claimant hit or with which part of his body. The claimant appeared to be in pain but the co-worker could not recall if he said he was hurt.
The shop steward’s statement of November 6, 1997, indicated that his involvement with the claim would have been on September 22, 1997, when an investigation was carried out. He was not aware of the incident prior to then. He stated there had been problems with the elevators not leveling and that the union wanted to see them fixed.
On December 19, 1997, the WCB advised the claimant that his claim for compensation was not acceptable based on the following factors:
- the worker completed his shift on September 18, 1997 and experienced a sudden discomfort on his right side while at home, rolling over in bed.
- the worker called in sick the following day and did not complete a green card until September 22, 1997.
- the workers’ supervisor and co-workers were unable to confirm an accident was reported prior to this time.
In the opinion of Claims Services, the above information did not establish a personal injury which both arose out of and in the course of the employment.
Following the above decision, the Review Office received submissions from the claimant’s union representative dated January 27, 1998, and April 9, 1998, appealing the decision made by primary adjudication. The Review Office later received submissions from the employer dated March 24, 1998, and April 2, 1998, outlining its position with respect to the claim for compensation.
In a letter dated May 6, 1998, the Review Office could not establish that the claimant sustained an injury by accident at work. The Review Office cited the following factors as a basis for its decision: the inconsistencies and delay in reporting, failing to promptly seek treatment and the lack of a definitive diagnosis.
On June 12, 1998, the union representative appealed the Review Office’s decision and requested an oral hearing.
In a submission dated August 21, 1998, the employer’s representative provided the Appeal Commission with a medical opinion from an independent orthopaedic specialist dated August 6, 1998.
An Appeal Panel hearing was scheduled to take place on August 31, 1998, but was postponed and re-scheduled at the request of the union representative. On February 17, 1999, a hearing was held at the Appeal Commission.
Chairperson Vivian and Commissioner Finkel:
The issue in this case is whether the claim is acceptable. Eligibility of federal government employees for compensation benefits is governed by The Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are administered by agreement in Manitoba by the Workers Compensation Board (WCB). The relevant sections of theGECA are section 2 and subsection 4(1).
Section 2 states in part:
“accident includes a wilful and intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause;
“compensation includes medical and hospital expenses and any other benefits, expenses or allowances that are authorized by the law of the province where the employee is usually employed respecting compensation for workmen and the dependents of deceased workmen.”
Subsection 4(1) states in part:
Subject to this Act, compensation shall be paid to
(a) an employee who
(i) is caused personal injury by an accident arising out of and in the course of his employment, or
(ii) is disabled by reason of an industrial disease due to the nature of the employment;...
The GECR provide that, “an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time the disease was contracted... [is] entitled to receive compensation at the same rate as [he] would be entitled to receive under the Government employees compensation Act if the disease were an industrial disease... .”
Relevant Workers Compensation Board (WCB) policy is Section 44.05.10 which clarifies the definition of accident for GECA claims.
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, does not support a finding that the claimant sustained personal injury by accident arising out of and in the course of his employment on September 18, 1997.
The claimant has claimed that while driving a motorized BT fork lift at work on September 18, 1997 at 20:40 hours, as a result of the elevator not leveling properly, the BT lift came to a jarring halt, lifting him up and forward striking his right torso on the steering column. In sworn statements and documents about his claim to the WCB the claimant reports that the accident was independently witnessed and promptly reported to the employer. The WCB’s investigations revealed the following:
- in the claimant’s Worker’s Report of Injury (Form 3) dated October 1, 1997 when asked to give the names of persons who saw the accident or who were aware of the occurrence at the time, the claimant records the names of two co-workers (G.C. and J. P.);
- in the claimant’s sworn statement dated November 4, 1997 the claimant states in part:
- I told C.M. [his supervisor] shortly after the accident what had happened and that I had hurt my stomach and side. He just walked away. I also told G.C. [ first co-worker].”
[his supervisor] shortly after the accident what had happened and that I had hurt my stomach and side. He just walked away. [ first co-worker].”
- in the supervisor’s sworn statement obtained November 6, 1997 the supervisor recalls that the claimant might have mentioned that his fork lift may have hit an uneven surface of the elevator on September 18, 1997. The supervisor was definitive that no report of an injury was made at that time, that the claimant booked off casual sick leave the next day, and that it was not until September 22, 1997 that the claimant showed up and filled in a green card and reported the accident;
- a sworn statement was obtained from the first co-worker, G.C., on November 6, 1997 who had been identified by the claimant as a witness to the accident. According to the witness statement he was not aware of the incident until September 22, 1997, four days later, when his involvement with the claim would have been to do with the investigation;
- further, in the claimant’s sworn statement to WCB on November 4, 1997 the claimant states in part:
“ J. P. [ second co-worker] came walking by just seconds after this happened, but I can’t say if he saw this. He asked what was wrong and I said I just hit the elevator.”
- a sworn statement was taken from the second co-worker, J. P., who was also identified by the claimant in his Form 3 as having witnessed the accident or was aware of the occurrence at the time. In J. P.’s sworn statement to the WCB, dated November 6, 1997, this witness described a very similar mechanism of injury to that reported by the claimant as having occurred on September 18, 1997 although the witness could not be certain as to the date on which this incident occurred. He states:
“...I do recall the incident when [the claimant] hit the elevator with his forklift. I saw the forklift come to an abrupt stop, throwing him forward into the machine. I can’t say what part of the machine he hit, or what exact part of his body hit the machine. He appeared to be in pain... . but he did look like he was in pain.”
- subsequent to the receipt of these statements the employer provided information to the WCB suggesting that the testimony of the claimant’s second co-worker witness, J. P., be disregarded as records indicated this individual was not at work on the date of accident and therefore could not have witnessed the accident;
- following the discovery that the second co-worker, J. P., was not at the workplace on the date of the accident, the claimant indicated, in a letter dated December 10, 1997, that he could recall several malfunctions of the elevator during the week of September 14 to the 20, 1997. He states:
“ On one of these occasions J. P. ( second co-worker) was walking by the elevator on 2R and witnessed me being thrown off the BT lift as a result of some part of the machine or a monotainer striking the door or floor of the elevator. I recall saying something to the effect to J. That if this elevator isn’t fixed properly I could do myself an injury.”
We note that the claimant’s and the second co-worker’s respective accounts of what was observed are inconsistent not only with respect to dates but also to the described mechanisms of accident and the type of event that was observed.
- in a supplementary statement to the WCB dated December 10, 1997 the claimant states in part:
“ I did not report each of these incidents specifically, because I did not feel that I had been badly injured. This is also the reason I did not report the accident, as previously stated, which occurred at approximately 8.40 p.m. on September 18, 1997 where I was injured until the following day when I called the PIC center and told them I was injured the night before and would not be reporting for work on the 19th of Sept./97.”
We take note that the above evidence from the claimant contradicts that given in his sworn statement of November 4, 1997, that he told his supervisor about his accident shortly after it occurred on September 18, 1997.
- in a letter dated December 10, 1997 on file the claimant indicated that he had telephoned the employer’s call centre on September 19, 1997, the morning following the accident, and reported that he would be absent from work due to an injury occurring in the workplace the night before. At the hearing the claimant further elaborated on that conversation indicating that he had informed them that his absence was casual until he had seen his doctor.
- the absenteeism form completed by the call centre employee for this telephone conversation with the employer showed that the claimant’s absence was recorded as casual sick leave with an expected return to work on the following shift.
At the hearing the claimant and his representative challenged the accuracy of the information contained on the absenteeism form which had been completed September 19, 1997. In rebuttal the employer submitted a full month’s sampling of absenteeism forms completed by the same individual who had taken information from the claimant during the September 19, 1997 telephone call with the employer. A review of these forms reveals that the employee consistently records pertinent information in relation to the reason for the absence from work and the expected return date.
In light of this we place weight on this evidence as being consistent and reliable, and find that the claimant did not report a work related injury during the telephone call to the employer’s call centre the morning following the alleged accident.
We also take note of the following evidence:
- in his statements and, as confirmed by his evidence given at the hearing, the claimant reports a significant sudden jarring event of sufficient force to cause an upward and forward motion. In his statement of November 4, 1997 the claimant indicates:
“ ....brought me to a jarring halt, lifting me up and forwards. (sic) The steering column went straight up when the fork lift hit the elevator floor, lifting me up with it and when I came down I landed on top of the steering column. The steering column was in my stomach and pushed upwards (sic) into my stomach... . I then slid off that and landed on top of the handle that is below and around the steering column.”
- subsequent to this accident the claimant reports completing his shift including taking a coffee break. The Workers Report of Injury dated October 1, 1997 indicates that the claimant’s pain “did not worsen over 3 days till I contacted my Dr.” The Workers Report of Injury (Form 3) specifically identifies the claimant’s supervisor as the person to whom he reported the injury but the date reported to the employer is left blank;
- in his statement to the employer dated September 22, 1997 the claimant again provides a history of sustaining rather significant injuries. However, he states “ I did not experience any prolonged pain until I got into bed after my shift and when I rolled over in bed I felt a sudden discomfort in my right side... .”
- file evidence shows that initial medical treatment was not obtained until September 24, 1997, some six days after the accident, as the claimant states he was unable to get an appointment to see his doctor any earlier;
- when seen by his physician on September 24, 1997 the physician reported tenderness in the lower right anterior chest and right upper abdomen. When seen two days later on September 26, 1997 the physician reports similar findings but specifically states “no bruising”. In response to a request for a narrative report dated October 21, 1997, the physician reports that there was no bruising evident when he assessed the claimant for the first time on September 24, 1997. In a progress report by the attending physician covering an assessment of the worker performed on September 30, 1997 again, there is no indication of bruising.
We note that the claimant has been with the employer for approximately ten years and has had prior claims with the WCB and would therefore have been well aware of reporting procedures and the importance of seeking prompt medical treatment. We also accept the evidence in the initial medical reports of September 24, 26 and 30, 1997 that indicate there was no bruising noted at the time of examination. As these records were contemporaneous with the actual examinations dates we accept this as the best evidence, on a balance of probabilities. The later reports from the attending physician about the presence or absence of bruising we find are merely speculative.
The most difficult aspect of the claimant’s case is the inconsistencies around the reporting of his injury and the conflicting statements which have been made about, or by, individuals who the claimant indicated were aware of, or witnessed the incident. We find that the noted inconsistencies in the evidence and the fact that numerous clarifications were put forward, or were sought, undermine the credibility of the claimant and his claim. Further, had the accident been as acute and violent as that described, then we question why the claimant did not find it necessary to seek immediate medical treatment.
We find that the claimant did not report any accident to the employer until September 22, 1997 which contradicts both his oral and written testimony. The inconsistent and conflicting testimony noted herein, the delayed onset of symptoms, the mechanism of accident, the delay in seeking medical treatment, the lack of bruising to the affected area in light of the mechanism of injury as described, has led us to conclude that there are numerous inconsistencies in the evidence and that the evidence fails to establish, on a balance of probabilities, that the claimant sustained an accident as defined by the legislation (GECA) or the regulations (GECR).
Therefore the claimant’s appeal is denied.
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 8th day of April, 1999