The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker filed a claim for compensation with the WCB on May 4, 2006 for a workplace accident that occurred on April 19, 2006 and that he reported to his employer on April 26, 2006.

The employer disputes that a workplace accident occurred. It says that when you examine the chronology of events, it is clear that the worker only filed a WCB claim to retaliate against the employer placing him in an absenteeism program:

• On April 19, 2006, the worker was scheduled to work a split shift. After working his first shift, he called dispatch to book off the second part of his shift without explanation. He did not report any injury or defect in the vehicle he was driving or in the road conditions.

The employer says that if the worker had had an accident, it would have been better to document the bad road conditions and report it as an accident; he gets paid for WCB time loss; he does not get paid for time off.

• Two days later on April 21, 2006, the worker called into work to advise that he would not be coming into work because he “screwed up [his] back somehow”. When questioned if he was sick the worker simply replied OK and hung up.

The employer says that once again the worker had an opportunity to report an accident and he did not. The worker has made reference in the past to a chronic back problem, and that this might be the case here. Alternatively, the worker has called in sick on multiple Fridays. April 21, 2006 was a Friday.

• On the morning of April 26, 2006 the worker’s supervisor told the worker he was being placed in an absenteeism program. The worker became upset and said he was going to contact his union. He called back later saying that his absences were WCB related because of a workplace injury on April 19, 2006 due to bad road conditions and for which he had seen a chiropractor on April 21, 2006.

The employer says that this was the first time it had heard of a workplace accident, and asserts that obviously the worker made this ‘workplace accident’ up because he did not want to attend the absenteeism program.

The employer also says that the road conditions were investigated by the employer. Though there was crumbling asphalt, it did not think they were sufficient to cause injury.

The worker concedes that he did not report bad road conditions or an accident at work. He could not provide the panel with a reason why. The WCB file documentation does indicate however that he thought his back would get better quickly. Regardless, the worker says that he nonetheless reported that accident within the time requirements of The Workers Compensation Act (the “Act”) and that his workplace injury is supported by his chiropractor’s report dated May 3, 2006 that indicates he saw him on April 21, 2006 regarding an April 19, 2006 workplace accident. The employer disputes the relevance of the chiropractor’s report, stating that it is feasible that this report is mistaken as to the date the worker informed the chiropractor about an accident occurring at work. In other words, it is possible that the worker told his chiropractor about an accident at work some time after having seen him April 21, 2006.

The worker reports that on April 19, 2006 he was driving a route that he had not driven for several years. The road conditions were bad and he could feel the bumping into his back. By the end of his first shift he began to feel lower back symptoms. He called into dispatch to book off his second shift. He went home and iced and rested his back that evening and the next day. On April 21, 2006, as his back was not better, he called in sick then later saw his chiropractor.

This visit has been confirmed by the chiropractor on several occasions as well as the worker’s report to him of such a workplace accident. The chiropractor also confirmed that at the time he saw the worker on April 21, 2006, the worker did not want to file a WCB claim. For this reason, the chiropractor did not submit his report to the WCB until May 3, 2006.

Analysis

Subsections 4(1) and 1(1) of the Act provides that to be compensable a worker must suffer personal injury arising out of and in the course of employment.

In the case before us, the worker’s reporting or lack thereof, does cause the panel to question the veracity of the later reporting on April 26, 2006, one week after the alleged accident occurred. Indeed, prior to that reporting, the worker had had three opportunities to report a workplace accident and did not. The worker was not able to dispel the panel’s concern at the hearing.

That said, the worker’s lack of reporting needs to be weighed against the other evidence before us, namely the road conditions and the medical evidence that the worker did suffer an injury.

The faulty road conditions are not in dispute except with respect to the degree of disrepair. The evidence is that the route the worker drove on April 19, 2006 did have areas of crumbling asphalt though the worker says that it was more than that. The employer downplays the significance of the road conditions, saying that they would be unlikely to cause injury. This comment was made by an inspector employed by the employer. We do not place much weight on this opinion for two reasons. The inspector is not a medical practitioner and we do not have any information as to the technical basis on which that opinion was offered. Further, the legal test is not what is likely to cause injury to the average worker but rather if this particular worker suffered an injury in this particular case.

The other evidence that is not in dispute is that the worker did suffer an injury to his back. What is in dispute is whether this injury was reported to the worker’s chiropractor on April 21, 2006 as being work-related. This is the date indicated by the chiropractor. Though the employer has suggested that the chiropractor could be mistaken about the date he was informed about the accident, this remains a pure suggestion and does not dispel the evidence provided by the chiropractor that he was indeed informed by the worker of a workplace accident on April 21, 2006.