The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This case deals with whether the worker sustained an injury at work.

The worker filed a claim with the Workers Compensation Board (WCB) for an injury which he alleged occurred at work on September 12, 2005. The employer argued that the worker did not report a work injury. The WCB determined that the worker’s claim was not acceptable. The WCB’s Review Office confirmed this decision. The worker appealed to the Appeal Commission.

An appeal panel hearing was held on August 31, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on August 31, 2006 and again on December 6, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 21, 2005, the worker reported that he was using a floor crane to lift a grader blade during a manufacturing process and the pulling, twisting and fighting movements in different directions caused him pain in his low and middle back regions along with a sharp pain in his stomach/abdominal wall. He continued working afterwards but the pain worsened. He then told his supervisor and production foreman that he could not do the job because it made his stomach bulge and his back was “killing him”. This was the first time he did this particular job and the pain started approximately one hour into his shift. The worker reported that he had a previous hernia condition in 2000 and a whiplash injury 10 years ago. He said his employer told him to quit as they had no other areas to put him in.

The employer’s human resource person submitted that the worker came to work on September 12 and told his foreman that he was quitting/resigning because of physical limitations. The employer had no record of any incidents. “He was gone within 2 hours and this included cleaning his locker and sitting down with us and doing the exit interview.”

Medical information consisted of a hospital emergency report dated September 12, 2005. The treating physician diagnosed the worker with an umbilical hernia and pulled back muscles.

A Doctor’s First Report dated September 14, 2005 indicated that the worker experienced sudden pain in his abdomen on September 12, 2005 while at work. He noted “a bulge at old surgical scar”. The diagnosis rendered was a ventrical hernia.

The WCB asked the worker to fill out a WCB hernia questionnaire which he did on September 28, 2005.

During a telephone conversation on October 7, 2005, the worker told his WCB adjudicator that his hernia condition was caused while working on the new paint line. There was a blade suspended by a crane that he had to pull on. This pulling created a resistance that required some effort on his part. He did not have to lift the blade as the blade swivels while attached to the crane. He had to pull the blade when it is on rollers. He was pulling against gravity. The rollers are eye-high which made it difficult for him as he was too short to maneuver the blade. He felt his hernia was caused from the swiveling of the blade while it was attached to the crane. He said he worked on the older paint line previously with no difficulty. The worker said he had no lingering effects from his prior 2000 hernia condition.

On October 11, 2005, the employer’s representative expressed concerns with the claim as there was no lifting required where the worker was working. The worker was in the new paint area which was an area equipped with cranes that do all the lifting.

On October 13, 2005, the production foreman noted that the worker never mentioned a workplace injury on September 12, 2005. He said the charge hand (supervisor) came into his office on September 12, 2005 to advise that the worker had requested a move off the “Tocco”. He told the charge hand that this was not possible. The worker then approached him to say that he wanted to move off the Tocco line as the pace was too quick and too much for him to handle. At no time did the worker indicate he was injured. The production foreman noted that while the worker did mention that he had a previous hernia, there was no mention of a re-injury or aggravation. Once the worker was told he could not be moved off the Tocco line, the worker indicated that he would quit the job. At this time, there was still no mention of a workplace injury.

On November 1, 2005, the worker’s claim for compensation was denied as the adjudicator was unable to establish that an accident occurred arising out of and in the course of the worker’s employment. This decision was based on the evidence that the worker made no mention of an injury occurring on September 12, 2005. This decision was appealed by the worker on December 2, 2005 and the case was forwarded to Review Office.

Prior to considering the worker’s appeal, Review Office contacted the charge hand on December 15, 2005. This individual stated that the worker approached him on September 12 and said the work was too fast paced and he wanted to work somewhere else. The supervisor said this was usually a two man line and the worker was an extra person. The duties involved dipping and painting, and pulling blades off the machine. The blades weigh 85 to 130 pounds and the worker would have done this for one hour. He told the worker that it was not possible to move him and that he should speak with the production foreman. He said the worker liked to work in the heat treat room. The worker then left to speak with the production foreman and this was the last time he saw him. The worker did not mention anything about an injury or pain complaints but if he did, he would have asked him to complete a green card.

On January 3, 2006, Review Office confirmed that the claim for compensation was not acceptable. It stated that it was unable to confirm that a personal injury by accident had occurred at work on September 12, 2005 as the employer did not confirm knowledge of a work related injury or an accident.

On August 31, 2006, a hearing was convened at the request of a worker advisor, who was acting on the worker’s behalf. Following the hearing, the appeal panel requested additional information from two physicians along with information from the employer’s advocate. The information received by the panel was distributed to the interested parties for comment. On December 6, 2006, the panel met to render its final decision.

Reasons

Applicable Legislation and Policy

For the worker's claim to be accepted by the WCB, the worker must have had an accident as provided in subsection 1(1) of The Workers Compensation Act (the Act). Further, the accident must have arisen out of and in the course of his employment as provided in subsection 4(1) of the Act.

Generally, "arising out of employment" is concerned with whether the activity which gave rise to the injury is causally connected to the worker's employment. "In the course of employment" is concerned with the time, location and activity. Subject to the statutory presumption set out in subsection 4(5), both requirements must be met for the worker's claim to be accepted.

Worker’s Position

The worker attended the hearing with a worker advisor who made a presentation on his behalf. He answered questions asked by the employer’s legal counsel and panel members.

The worker’s evidence included the following:

• he previously worked on the R100 line which he found to be “fairly easy”.

• prior to his shift on September 12, 2005, he did not have any symptoms with his abdomen area while working for this employer.

• he is five foot five inches in height.

• A description of the operation of the Tocco line and his duties in this position. He referred to photos provided by the employer.

• he had trouble performing the duties including the use of a tool called a frog bar.

• his abdominal symptoms began about 1.5 hours into his shift. He felt a tearing feeling in his stomach. He worked in pain for about 45 minutes.

• he told the charge hand that he could not do the job as it was too fast-paced for him. He also stated that he told the charge hand that his stomach was beginning to bulge.

• the charge hand told him to speak to the production foreman.

• he went to see the production foreman and told him he could not keep up with the pace and that the work is too hard. He also said he told him that his stomach was bulging and was causing his hernia to bulge.

• the production foreman told him there was no other areas available and that he was needed in that position. He stated this conversation occurred at approximately 9:00 AM.

• the production foreman told him that if he couldn’t do the job, he had to quit.

• he then attended at the human resource office to complete paperwork for his resignation. He also advised he amended the resignation letter which was prepared by the employer. He added words to reference physical limitations or incapabilities as a reason for quitting. When asked at the hearing what he meant by this, he replied,

“It meant that, it meant that it was making my stomach bulge out and my back hurt, and that was basically what it meant to me.”

• regarding his prior hernia, he advised there was a little bulge before September 12, 2005 but that it did not prevent him from working. He stated that he had a slight bulge for 1.5 to 2 years prior to the accident.

• he underwent a physical exam before commencing work for the employer and that he disclosed his prior injury to the physician.

• after leaving work on September 12, 2005 he went home but because the bulge did not go down, he went to the hospital. He stated that the abdominal bulge was a couple inches more than it had been.

• he had shown the bulge on his abdomen to the production foreman but was uncertain if he had shown it to the charge hand. He later advised that he may not have shown the bulge to the production foreman as he remembered he was wearing coveralls at the time.

• he had a stiff back due to the duties and that he had other bulges on his abdomen which began after leaving work. He said these bulges were not as significant as the one that hurt.

• he had surgery on his abdomen in 2006.

The worker’s representative noted the conflict between the employer’s witnesses and the worker on whether the worker reported the injury. He suggested that the panel “may not ever really get to the true facts”. He suggested that the panel look at the other evidence on the file, and that this will lead to a conclusion that there was a workplace injury. He referred to the reports on the file from the hospital which he suggested support that an injury occurred. He also noted that the worker underwent a pre-employment physical and that no limitations were noted. He also noted the worker’s short stature and that he was new to this job. He submitted that the duties which the worker was performing were consistent with things that can produce or aggravate a hernia.

The worker’s representative provided a written submission dated November 30, 2006.

Employer’s Position

The employer was represented by legal counsel who made a submission on behalf of the employer. The staff member responsible for human resources assisted legal counsel and gave evidence under oath. The employer called two additional witnesses who gave evidence under oath.

Charge Hand: The first witness called by the employer was the charge hand who was responsible for assigning work placements. The charge hand evidence included the following:

• the worker was assigned to the Tocco line on the day in question.

• a description of the operation of the Tocco line including the duties and activities involved in working at the machine. He provided the opinion that work on the Tocco line is physically the same as work on another line where the worker had previously worked.

• he demonstrated the duties to the worker and observed the worker performing the duties for approximately 15 minutes. He advised that he observed the worker fumbling with the crane which is used in this position. He noted that when picking up a blade the worker missed the hole and knocked the blade over. He also acknowledged that the worker had fallen behind with the work.

• he spoke to the worker on two occasions. On the first occasion the worker asked to be moved to another position to which the charge hand replied that the other position was being performed by another worker.

• on the second occasion, at approximately 8:30 AM, the worker again asked to be moved and complained that the pace of the position was too fast, to which he replied that this was the position that he was assigned to and that he should speak to the foreman if he wanted to be moved.

• he did not tell the worker to quit.

• the worker did not indicate at any time that he had been injured, that his stomach was bulging, that his back was hurting, or that he was too short to work at the position.

• it is hard to keep people working at the Tocco line.

Production Foreman: The second witness called by the employer was the production foreman. His evidence included the following:

• he was responsible for daily production schedule, adherence to safety policies, and quality issues.

• the worker reported to him.

• at approximately 8:15 AM the worker came into his office and advised that the Tocco line was too fast paced for him and that he cannot work at it. He advised that he responded by telling the worker that he was needed at that job. He advised that the worker asked if there was somewhere else he could work to which he responded:

“And I said, “No, there’s nowhere else for you to work. If you can’t work on the Tocco, then you need to – you have a choice. The choice is that you work on the Tocco because there’s nowhere else for you to work or you have the choice of resigning.”

• the worker responded that he would have to quit.

• a denial that he told the worker to quit. He stated “I said he had two choices. One was to continue working on the Tocco line or resign.”

• he and the human resource staff member met with the worker in the office after he had emptied his locker.

• a denial that the worker had told him he was injured, was too short to do the job, that the work was making his stomach bulge, or that the job was hurting or straining him.

• at the end of the conversation with the worker, the worker advised that he had a hernia in the past. He denied that the worker told him about a current hernia. He advised that he did not pursue the topic of the past hernia with the worker.

• the employer does accommodate injured workers and described the accommodation process.

• the employer required the worker to sign a letter of resignation and that the worker asked that the letter be amended to indicate that he was resigning because of physical limitations.

• he did not ask the worker about the physical limitations or seek clarification from the worker. He stated that he assumed it was because the job was too fast paced.

HR Manager: The final witness called by the employer was the human resource manager. The HR manager’s evidence included the following:

• she is the sole HR staff member at the employer’s plant.

• a pre-hiring medical was performed by a physician retained by the employer and that the physician advised the employer that the worker had no physical limitations but that there was a possibility of some elective surgery in the future. She advised that she was not aware of the type of elective surgery nor of a prior hernia.

• the new employee orientation program which included instructions on dealing with workplace injuries. She advised that the worker attended the orientation.

• the worker and production foreman came to the office to complete paperwork for the worker’s resignation. At that time she asked the worker why he was quitting and he responded that he was quitting because he had physical limitations. Regarding his reason for quitting, she stated,

“My understanding was [production foreman] had come in and given me a heads up that he was quitting because it was too fast-paced out there and my understanding was that was his physical limitation, was that it was too fast.”

• the worker did not tell her that he had injured himself or was in pain.

• he looked fine.

• the employer has a medical management policy to deal with accommodation of injured workers.

• there was an ergonomic assessment of the Tocco line and some other positions at the worksite. She provided some information on the assessments and confirmed that it was available if required by the panel.

The employer’s legal counsel advised the panel that the employer attended the hearing because of the allegation contained in the file material that the employer had received notification of an injury and then forced the worker to quit to avoid a WCB claim. She advised that the employer finds the allegation offensive.

The employer’s legal counsel submitted that the evidence establishes that no injury was reported to the charge hand, production foreman or HR manager. She submitted there are inconsistencies in the worker’s evidence regarding the timing of the various incidents that took place on September 12. She also submitted that the worker exaggerated the difficulty associated with the operation of the machine. She stated that when all the evidence is considered, it does not establish that the worker suffered a personal injury by accident arising out of and in the course of employment.

The employer’s counsel provided a brief written submission dated December 4, 2006.

Analysis

The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker suffered personal injury by accident which arose out of and in the course of his employment. In other words, that the worker sustained a workplace injury while performing his employment duties. The panel did make this finding. The panel finds, on a balance of probabilities, that the worker was injured at the workplace while performing his employment duties and that his claim is acceptable.

The panel finds that while performing his duties on the Tocco line on September 12, 2005 the worker felt a tearing feeling in his abdomen and that a prior hernia site extended or bulged out significantly, requiring the worker to attend the emergency ward of the local hospital. The panel is satisfied that the bulging of the abdomen occurred as a result of the work activities of September 12, 2005.

In reaching this decision, the panel considered the issue of credibility. The panel noted the employer’s concern regarding the worker’s credibility including his evidence regarding the timing of various incidents, the operation of the machinery and the assertion that the worker had notified the employer of the injury. The panel found the worker to be a poor historian who was unsure of many events and contradicted himself. The panel also noted the evidence of the employer’s witnesses, such as their acknowledgement that they did not inquire why the worker added a reference to physical limitations to the letter of resignation and did not inquire about the worker’s comment regarding a prior hernia. The panel found the employer’s witnesses’ conduct on these matters to be puzzling. However, the panel makes no express findings on whether the worker reported the incident to the employer witnesses, but finds there is sufficient information regarding job duties as well as external evidence and medical information to support a decision that the worker’s claim is acceptable.

The panel notes that the worker was fit for work prior to commencing employment with the employer even though he had a pre-existing abdominal problem. This is established by the physical examination which was conducted by a physician retained by the employer on August 23, 2005. The physician cleared the worker for work at the worksite. He advised the employer that “no concerns about the present ability to perform his duties. He likely will have some elective surgery in the future which will lay him up for a bit but this can likely be arranged during one of the lay-offs.”

The physician provided the panel with a report dated October 8, 2006. The report confirms that the physician was aware of the worker’s prior abdominal injuries and the existence of an incisional hernia. This acknowledgement by the physician is consistent with the worker’s evidence that he disclosed his prior injuries to the physician.

There is also uncontradicted evidence from the worker that he was able to work at other duties of a heavy nature for the employer before September 12 without injury or symptoms.

In finding that a workplace injury occurred on September 12, 2005, the panel places weight upon the following evidence:

• Emergency Triage Record from local hospital dated 10:45 AM September 12, 2005. This record notes the worker reported “was working at [employer] and pulling heavy blades off shelf when I felt a bulge in my stomach.” The report notes, amongst other findings, an umbilicus bulge. This report was made within approximately two hours of leaving the worksite.

• Outpatient & Emergency form from local hospital dated September 12, 2005. This record diagnoses an umbilical hernia and pulled back muscles.

• Doctor’s First Report dated September 14, 2005. This report diagnoses a hernia and notes that the worker had developed a bulge at the site of an old wound. The report also notes that the worker described the injury as happening while at work.

Although there was concern expressed about the worker’s exaggeration of the job duties, the panel finds the evidence in total supports the worker’s position that he found the job to be difficult. The panel notes that the Tocco line had been ergonomically assessed and that the physical demands analysis classified the job “…at a Heavy strength demand level, although the majority of the work is within a Medium category.” As well the panel notes this was the first time that the worker had worked at this position and was seen by the charge hand to be fumbling. There is also evidence of the worker’s repeated requests to be moved to another position which confirms that he found the work difficult.

In conclusion, the panel finds on a balance of probabilities that on September 12, 2005, the worker suffered an injury to his abdomen while performing his job duties with the employer. We therefore find that he sustained personal injury by accident that arose out of and in the course of his employment with the employer as required under the Act. The claim is acceptable and the worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of January, 2007