Decision #03/08 - Type: Workers Compensation

Preamble

This appeal deals with whether the worker’s claim for a right arm injury that he alleged occurred in the workplace on May 20, 2007 is acceptable. Both primary adjudication and Review Office denied the claim on the grounds that it could not establish that a workplace injury occurred. The worker disagreed and appealed to the Appeal Commission and a hearing was held on December 4, 2007. A worker advisor represented the worker at the hearing.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on May 29, 2007 for right shoulder and neck pain that he says occurred on May 20, 2007 and was reported to the employer on May 21, 2007. The worker described the accident as follows:

“I don’t really know how I hurt myself. I may have been filling the coolers or getting rid of the empties when I noticed pain in my right shoulder, going from my neck, down my right arm to my right elbow. I finished my shift on 20/05/2007. I called [the manager] and I told her I was hurt, that I would finish my shift on 20/05/2007 but I wouldn’t work the next day. I went to [medical clinic] on Tuesday, 22/05/2007...”.

The employer’s injury report signed by the worker’s manager dated June 7, 2007 indicated “he did not report any injury to me”. The date of injury was recorded as being May 19, 2007.

Medical information confirmed that the worker attended for medical treatment on May 22, 2007. He described to the physician that he places beer on shelves and lifts cases above his head. The diagnosis was right shoulder spasm and right radial entrapment. The physician noted that the worker was capable of light duty work and was to avoid the use of his right arm. Treatment plan included medication and physiotherapy treatment.

The worker sought treatment at a sports medicine clinic on June 22, 2007. His entrance complaints was recorded as “Injured neck May 20 while lifting over head. Felt snap to neck.” The diagnosis rendered was a neck strain.

Upon speaking with a WCB adjudicator on June 4, 2007, the worker explained that his employer asked him to sign a document to resign from employment. He was not given a reason why the employer wanted him to resign but felt it had something to do with filing a WCB claim. He said he would not sign the document. The worker indicated that he was employed with the accident employer as a stocker/vendor for 2.5 years. He then left and worked a year elsewhere but then returned to the accident employer in October or November 2006. He was a part time employee and worked an average of 4 days a week. His main duties were manually stocking the cooler with beer and working the cash register. He lifts cases of beer (24 or 30 bottles) off shelves and grabs a case with each hand. He lifts about 30 cases of beer per shift. He makes a swinging motion with his arm to stock cases on top of each other. The worker stated he injured his right shoulder while loading the cooler and stocking shelves with cases of beer. He felt pain and pinching in his right shoulder and had to stop for a while to rest his arm. It was a Sunday shift and he mentioned the accident to a co-worker but could not recall the name of the co-worker.

The WCB adjudicator contacted the worker again on June 6, 2007. The worker indicated he had no other accidents outside of work after the date of accident. He indicated there was a 30 pack case of beer which he had to remove from the cooler and it was stacked high above his head. He used both hands and lifted the case and turned to the right side. He then noticed a pain like a pinched nerve hence he decided to stop what he was doing. His co-worker (“N” ) was with him that time and they were both stacking and removing cases. He mentioned to him that he hurt his arm and he tried to finish his shift with difficulty. The worker said he tried to work on May 21, but his symptoms were increasing. He thought the pain would go away by trying to lessen his work load but his symptoms continued. He decided to report the accident to the employer and told them that he could not work the following day due to pain.

A letter from the worker’s manager (undated) to the WCB indicated that she spoke with N about the worker’s arm being sore and N “sort of laughed” and said the worker hurt his arm from taking a motor out of his car. The manager said she then told the worker what N said and he did not comment. Later in the week, the worker first mentioned something about compensation and she told him that this was not a compensation issue as he did not get hurt at work. The worker said he did and said that he told her on May 20, 2007. The manager stated further that she has had problems with the worker before in that he put in a claim for two hurt elbows and she found out later that the worker was arm wrestling with the bouncer and that’s how he hurt one of his elbows.

On June 7, 2007, the WCB adjudicator contacted N, who said he could not recall the exact date but he worked with the worker the day before the reported incident. He said the worker was fine the day before. When the worker reported for work on the day of the alleged incident, he said he could not do much or help because he injured himself while removing the engine from his car. N said the worker continued working and did not do much because of his difficulties.

In a decision dated June 14, 2007, the WCB denied the worker’s claim for compensation on the grounds that his employer was not aware of a specific accident to his right shoulder and from the evidence provided by the co-worker that the worker injured himself outside of work.

On July 4, 2007, a worker advisor asked the WCB adjudicator to reconsider her decision of June 14, 2007. The worker advisor submitted that on a balance of probabilities, the worker was injured at work, he reported the accident to his employer and sought appropriate medical attention and therefore his claim for compensation should be accepted. He also submitted photographs that he felt discredited the employer’s suggestion that the worker was hurt pulling an engine from his car.

In a letter dated July 18, 2007, the WCB adjudicator informed the worker advisor that no change would be made to her original decision. The adjudicator pointed out that the worker identified a specific task which could have caused his injury when speaking to her by phone and yet on his claim form he stated he did not know how he hurt himself. She noted that the medical report from the doctor reported that the worker placed beer on shelves and lifted cases above his head but no specific accident was identified. As both his employer and a co-worker were unable to confirm a workplace accident, she was unable to establish that a workplace accident occurred. On July 31, 2007, the worker advisor appealed the adjudicator’s decision to Review Office.

In a decision dated August 9, 2007, Review Office determined that the claim was not acceptable. It considered the arguments presented by the worker advisor but did not find that this information established that a work injury occurred. Review Office believed that the most compelling evidence was that provided by the co-worker who related a different accident history. On September 6, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The central issue in this case deals with whether the worker’s right shoulder complaints are causally related to his work at a beer vendor on May 20, 2007. For the panel to accept the worker’s appeal on this issue, we would have to find that his shoulder injury was indeed related to the performance of his work duties, on a balance of probabilities. The panel was unable to make that finding, and finds the worker’s claim not to be acceptable, for the reasons that follow.

Legislation:

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the circumstances under which claims for injuries can be accepted, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

The Worker’s Position:

At the hearing, the worker specifically related his shoulder injury to the hauling down of a particular 30-bottle case of beer from a overhead shelf on May 20, 2007. The worker and his representative also argued that the co-worker’s evidence regarding a non-work-related source for the worker’s shoulder difficulties should be discounted. The worker presented photographs of his car, to demonstrate that the alleged non-work activity (removing his car engine) did not take place, and thus the co-worker’s evidence should be given no weight.

The Employer’s Position:

The employer did not participate in the hearing, but its position earlier on the file (through a supervisor) has been that the worker’s injury was not work-related, and that although there had been several conversations between the supervisor and the worker on that day and subsequent days, the employer was aware of a shoulder problem but it was not attributed by the worker to the workplace until later that week.

Analysis:

As noted in the background and from the evidence presented at the hearing, the worker suffered an injury to his right shoulder/neck on or about May 19 or 20, 2007. There are two divergent stories presented as to how the worker’s shoulder difficulties arose. The nature of the injury itself is that it could have been caused by either story, meaning that our decision is based entirely on a determination of where or how the injury was caused. One version is work-related, which would lead to the panel’s acceptance of the claim. The second is not work-related, which would lead to a denial of the claim.

The respective versions of events are supported by statements and evidence provided by a number of individuals at and following the time of the worker’s injury. These statements contradict each other, and as such, the panel has determined that it will make its decision on the basis of credibility. After due consideration, the panel has found that the version provided by the worker supporting a work-related cause was not credible, and therefore has found that the requirements of a workplace accident, as defined under the Act, have not been met.

In support of this finding, the panel relies on the following observations:

. Change in accident history:  Originally, the worker provided a non-specific cause of his injury, stating that it arose from his general duties hauling cases of beer at a beer vendor, in his first conversations with the WCB.  Later (and at the hearing), he referred to a specific 30-can case of beer that he had moved from a high shelf, and was adamant that this particular lift was the specific cause of his injury.  When asked by the panel at the hearing about this discrepancy, and in particular the delay in his identifying a apecific incident, the panel found the worker's answer - that he did not know how to put the actual event into words - to be unsatisfactory.

· The lack of support of a work accident by his co-worker N: The worker advises that N was working with him at the time of the incident, and asserts that N saw the event. The panel notes, however, that N specifically told both his supervisor and a WCB adjudicator during their initial investigations that the worker had hurt his shoulder prior to work, changing a motor. N also stated that the worker had performed the lighter portions of the job on that shift, as a result. Under questioning by the panel, the worker acknowledged that he knew N for up to two years prior to the incident, and got along fine with him. The worker could not provide a reason why N would have offered a different version of events. The worker also acknowledged that he never followed up with N, after he found out that N had told his employer and the WCB about the worker removing his car engine. The panel finds that the worker’s lack of follow-up with N to be suggestive of there being more truth than falsehood in N’s statements to his employer and to the WCB.

Under further questioning by the panel, the worker advised that there was also a conversation between the worker and N, right at the time he got hurt, “Well, he saw that I got hurt and the only thing he really said to me was if it’s a Compensation claim he’s not helping me with it.” The panel finds this comment to be striking, given the apparent good relationship between the two individuals, and no evidence as to any ulterior motives by N in making either this statement or his later statements to his employer and the WCB regarding the non-work-related injury. In particular, the panel finds that the wording of this conversation on its face (as well as coupled with N’s later statements) supports an interpretation of an attempt by the worker to establish a false work-related cause of injury, which his co-worker could not support. This conclusion is also supported later in the file, when the worker promised the WCB adjudicator that he would speak to N about recanting his earlier statement, was given a deadline by the adjudicator, but a revised statement was never forthcoming.

  • Photographs of the worker’s car: The worker attempted to discredit N’s evidence as to a non-work related injury by presenting photographic evidence showing that his car engine had not been removed, because grease on the motor mounts had not been disturbed, and thus N’s story of the worker removing his car engine should be set aside. The panel places little weight on this evidence, and considers this point that does not rule out the likelihood of the worker having removed an engine from a different vehicle. As noted earlier, the panel on the whole prefers the evidence provided by N, as corroborated by the employer’s supervisor, to the evidence provided by the worker.

Based on these findings, the panel concludes on a balance of probabilities that the worker’s injuries did not arise out of and in the course of his employment with his employer, as required under subsections 1(1) and 4(1) of the Act. Accordingly, the worker’s appeal regarding the acceptance of his claim is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of January, 2008

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