Decision #135/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a back injury that he sustained in the workplace on July 30, 2007. Following an investigation into the case, the worker’s claim for compensation was accepted by primary adjudication and confirmed by Review Office. The employer disagreed with the acceptance of the claim and filed an appeal with the Appeal Commission. A hearing then took place on April 15, 2008.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker claimed that he and another co-worker were moving a piece of pipe on July 30, 2007 when he jarred his low back. The worker described the incident as follows:
“…We did a swinging motion, right to left, I said “1” and the other worker threw his side of the piece. I thought we would throw it on “3” so I held on to my side of the piece. It caused me to twist and a lot of weight was transferred to my end causing a jarring motion in my back.”
The worker indicated that he reported his injury to the site foreman on the same day of injury. He said he continued working until about noon and then left to go see a doctor.
The worker attended a hospital emergency facility for treatment on July 30, 2007 at 12:35 p.m. He reported that he was “holding concrete form with partner, went to throw it. Miss timing, then twisting back.” The diagnosis rendered was mechanical back pain.
On July 31, 2007, the employer advised a WCB adjudicator that the worker was working for them on the floodway project. According to guidelines of the floodway project, a worker had to work for a minimum number of hours before he was considered an employee. The employer indicated that the worker did not complete the number of required hours and she was disputing the claim as the worker was not their employee. The worker also submitted his resignation.
The WCB adjudicator spoke with the worker on August 1, 2007. The worker said he applied for the floodway project through a specific employment office. The employer’s representative called and hired him. As far as he knew, he was considered an employee. The worker denied that he quit work. He said he told the site foreman that he did not think he would be coming back but he meant on that day.
On August 7, 2007, the employer’s representative advised the WCB that she asked the worker to complete an internal report regarding the alleged injury and that she would fax it to the WCB when it was received.
The employer’s accident report, received at the WCB on August 14, 2007, stated, “Employee alleges he injured his back while “throwing a cement form” with another employee”. In a letter attached with the report, the employer indicated that the claim was “fraudulent” based on the following factors:
· the worker was employed with the company for a cumulative total of 8 hours;
· the worker was procured by the company for work on the Red River Floodway Expansion Project through use of a mandatory Job Referral Service;
· a worker was considered to be an employee of the company once he had attained 36 cumulative hours working on site;
· the worker gave notice of termination of employment at 12:00 noon on the day he alleged he had been injured. At that time he indicated to his foreman that the work was too hard and the hours were too long and that he could not do this type of work. He indicated he was leaving the site and going to look for another job.
· the worker never reported an injury to the site foreman, the main office or the safety coordinator.
The WCB adjudicator spoke with the site foreman on August 16, 2007. He advised that the worker told him at lunch that his back was sore, that the job was not for him and he was not coming back. He took this to mean that the worker was quitting. The worker mentioned he had hurt his back but no specific incident was reported. He said the worker did not tell him that he was going to look for other work. The foreman stated that no co-workers mentioned an injury or incident.
The adjudicator spoke with the worker on August 16, 2007. The worker insisted that he told his foreman how he hurt himself and that he was going to the hospital. He told him that he would not likely be back that day; he did not say he was quitting.
On August 23, 2007, it was determined by the WCB adjudicator that the worker sustained a personal injury by accident arising out of and in the course of his employment. It was also indicated that the worker was considered an employee of the company according to The Workers Compensation Act (the “Act”). On September 6, 2007, the employer appealed the decision to Review Office.
On October 10, 2007, Review Office confirmed that the claim for compensation was acceptable. In Review Office’s opinion, the contract with the Manitoba Floodway Authority did not negate the worker’s entitlement to compensation benefits. It considered the worker to be an employee of the employer as he was placed on their payroll, he was provided with funds to obtain specific footwear to work for the company and he performed job duties while under their direction. Review Office also indicated that the worker’s accident description had been consistently reported to the medical practitioners and the WCB, that the worker left work and immediately attended a hospital on the day of injury. The medical diagnosis was consistent with the mechanism of injury. Review Office could not find any evidence that the worker’s back injury was the result of other activities. On October 29, 2007, the employer filed an appeal with the Appeal Commission and a hearing was held on April 15, 2008.
Following the April 15, 2008 hearing, the appeal panel requested and received additional information from the employer as well as a signed statement from a co-worker dated August 18, 2008 who was at the worksite working with the worker on the day of the alleged injury. The co-worker’s statement was provided to the employer for comment. On September 12, 2008, the panel met further to discuss the case and considered a final submission from the employer dated September 9, 2008.
Reasons
Applicable Legislation
In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB’s Board of Directors.
As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where a worker is injured by an accident arising out of and in the course of employment. For a claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, …
and as a result of which a worker is injured;
Employer’s Position
The employer was represented by its president and safety program coordinator.
The president provided information regarding the hiring or placement of the worker with the employer. Under questioning from the panel, the president confirmed that the employer was no longer disputing whether the worker was a covered worker under the Act.
The president described the worker’s activities on his first two days of work. He then called two employees as witnesses on behalf of the employer.
The first witness was the lead hand who worked with the worker at the worksite on the day of the accident. He described the worker’s activities on that day as “…he stood around, he was late, he stood around, I finally got him to do a little bit of work, which was very minimal, and then he was whining that he didn’t want to do this kind of work and he wanted to be a truck driver and all this other stuff, and the next thing I know he went up the hill.” He advised that the worker used a packer to pack gravel for about one half hour and then was raking and picking up two-by-fours. He advised that the worker left the area at about 9:30 a.m. and did not say anything.
The lead hand indicated that he was not aware of any 200 pound forms at the worksite. He stated there were just two-by-fours to be moved. He said there were about nine or ten two-by-fours that were each about three feet in length. He offered the opinion that the worker’s injury was “a scam.”
The supervisor was also called as a witness. He advised that when the worker stopped for lunch time, he came up and said this job wasn’t for him, he was quitting and wasn’t coming back. He later said that this may have happened at the coffee break rather than lunch time. He advised the panel that “he never said anything about hurting his back or nothing to me, he just said this job wasn’t for him and he wasn’t coming back.” The supervisor acknowledged that the worker did tell him that his back was sore but did not identify what caused it to be sore.
The supervisor advised that there were no culverts or concrete forms near the worksite. He also advised that he saw the worker two or three times in the morning. He saw him picking up two-by-fours.
The president noted there were discrepancies in the worker’s description of the accident. He referred to three different descriptions of the accident. Upon receipt of the co-worker’s sworn statement, the employer provided a further written submission in which it advised there were no concrete forms moved by its workers on the worksite. The employer advised that the works completed consisted of moving and clearing site debris.
Worker’s Position
The worker did not attend the hearing and did not make a submission to the Appeal Commission.
Analysis
The employer has appealed the acceptance of the worker’s claim. For the appeal of this issue to be successful, the panel must find that the worker did not suffer personal injury by accident arising out of and in the course of employment, or in other words that the worker did not suffer a workplace injury. The panel finds, on a balance of probabilities, the worker suffered a workplace injury and that the claim is acceptable.
The panel had essentially two different versions of the events that occurred on July 30, 2007. The worker’s version as noted on the worker’s report of injury and in various notes on the claim file is that a workplace injury occurred. The employer’s version noted in the claim file and repeated at the hearing is that no workplace injury occurred. To assist the panel in determining what occurred on this date, the panel obtained a statement from a co-worker who was at the worksite working with the worker on the day of the alleged injury. This worker was identified with the assistance of the employer.
The panel attaches significant weight to the co-worker’s evidence. The co-worker has no ongoing ties to either the worker or the employer. He referred to the worker as “real lazy” and said “he just seemed like he was complaining about this and about that…”. The co-worker is no longer employed by the employer. The co-worker has no reason to provide untruthful information.
The panel finds that the co-worker’s statement is more consistent with the worker’s description of events on July 30, 2007 than the employer’s description. The co-worker stated that:
· “…we were just moving forms and …we were just throwing them up and … he hurt his back when we were throwing these forms.
· “… we were lifting them off, they were stacked on the ground and we were lifting them like kind of up out of the trench, which trench was about waist height, and we were lifting them from basically our feet, but the point where he hurt himself was we both went to throw it and I think it was either he threw his before I, like we didn’t, we didn’t time it right, that’s the part where he started complaining about his back.
· the forms they were moving were 2 ½ to 3 feet wide, from 6 to 15 feet long, weighed up to 75 pounds and were made of plywood and two-by-fours.
· the incident occurred around lunchtime, probably about 12:00.
· he thinks the worker went to the hospital after he complained of the injury.
· “…those forms actually weren’t used by us, they were used by I think [name of company], and they were used …to form a base for a culvert, at either end and in the middle there’s concrete forms to support the culvert system.”
· the forms “… were just left in our way, so it was kind of like we had to get them out of our way to continue working…”
· they might have moved three or four forms.
The panel also notes that the supervisor who was called as a witness by the employer acknowledged that the worker had complained of a sore back. This witness initially said the worker left near noon which is consistent with the worker’s and co-worker’s evidence.
The panel also notes that the worker sought medical treatment immediately after he left the worksite which is also consistent with having been injured.
The panel finds, on a balance of probabilities, that the worker was injured in the workplace performing his employment duties and that his claim is acceptable. The employer’s appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of October, 2008