The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for a back injury that occurred on February 20, 2008. His claim for compensation was denied by both primary adjudication and Review Office on the grounds that it was unable to establish that the worker sustained personal injury by accident arising out of and in the course of his employment. The worker disagreed with the decision and filed an appeal with the Appeal Commission through the Worker Advisor Office. A hearing was held on September 16, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 11, 2008, the worker filed a claim with the WCB for an injury that occurred on February 20, 2008. He described the accident as follows: “Tried to take a step, had 5 gallon water bucket in one hand and missed the step and hurt my back.” The worker indicated that he delayed in seeking medical attention as he thought his injury was not serious but it hurt more and more as time went on. The worker said he advised the “dispatcher” of his injury a day or two later. The worker also advised that his employer gave him two weeks off between February 22 to March 7 and then he was fired from his employment.

The employer’s report of injury indicated that there was no reporting of an injury until March 6, 2008. It was reported that the worker’s last day of work was February 22, 2008 and that he was dismissed because of rude, aggressive behavior. The employer further stated that when the worker commenced employment he “…told us in front of fellow employees he could not do main lines from a previous injury in the U.S.A. Therefore, we never sent him on any job where he would hurt himself. After being dismissed Feb. 22/08 – [the worker] went to the States to drive back a vehicle from New York. Also – did repair in his own crawl space as he bought parts from us on Feb. 20. Also had a serviceman at his house. This is the worst scam.”

A doctor’s first report revealed that the worker was treated on March 3, 2008. The worker’s description of accident was reported by the physician as “while carrying heavy water container “step ?” and had injury to low back”. The diagnosis was low back pain.

On March 14, 2008, a WCB adjudicator obtained the following information from the worker:

“… February 20 between 6 – 10 pm he was working on a frozen sewer drain under a trailer. He was coming out of the trailer with a 5 gallon pail of water. He was taking the water from inside the trailer to the steamer outside to thaw the frozen pipe. He went down the steps of the trailer and missed either the last step or second last step (not sure as it was also dark out) and fell on the right side of his body into the snow beside the steps. He continued to finish the job that night. He advised that the homeowner’s boyfriend [name] saw him fall. He said his back did not really hurt at the time but the next morning he felt very sore and had pain radiating down his left leg. He worked Feb 21+22 his reg. duties. He just wanted to make it to the weekend so he could rest. On Feb 22 he told [name] the dispatcher what had happened on Feb 20 and asked for a bit of time off so he could rest. [The dispatcher] told him to take the next week off.”

The worker advised the adjudicator that his employer does not want him to have a WCB claim as their rates would go up. He was concerned that the employer will change their story now that he applied for WCB. The worker advised that the homeowner has agreed to be a witness as he was there when the incident happened.

The adjudicator called the worker back on March 14, 2008 to clarify the information on the employer’s report. The worker advised that he did not sustain an injury in the U.S.A. He said he flew to New York on March 3 to drive a car back and that he discussed this with his doctor who said it should be fine but to just take it easy.

On March 25, 2008, the employer was contacted by the WCB adjudicator. The employer indicated that the worker was terminated on February 22 for his behavior in customer homes. The employer said there had been two other instances when customers have complained about the worker’s behavior. It was indicated that the worker asked for time off work, possibly the week before he stated he was injured, as he was going to New York to drive a car back for himself and his wife. He had wanted Feb 24 to March 3 off. When the worker was hired, he told them that he had a previous injury in the US and was not able to do heavy work. The employer indicated that they made sure the worker was given lighter jobs to accommodate him and ensure that he would not get hurt.

The adjudicator spoke with the dispatcher/safety representative whom the worker claimed he reported his injury to. The worker advised him that he was hurt 1.5-2 weeks prior at a trailer court. The worker did not recall which day or which trailer court the injury happened at. The worker did not indicate that he was seeking medical treatment. The worker said that he had started his own business and that he did not need to work for them anymore.

On April 1, 2008, the witness was contacted. He was not sure of the date of accident but he was at a friend’s house in a trailer park. It was in the evening and he saw the worker going down the stairs of the trailer with a pail of water and it looked like he missed the first step and thought that he fell. He did not help the worker up. The worker had no difficulty getting up. The worker did tell him that his back was sore. The worker finished the job that day. He did not see him after the fall as he was inside the rest of the time. He does not know the worker personally.

On April 2, 2008, the worker was advised that his claim for compensation was denied on the grounds that he delayed in seeking prompt medical treatment and he delayed in reporting the injury to his employer.

On April 23, 2008, a WCB adjudicator spoke with a massage therapist who indicated that the worker came to see him on February 23. The worker told him that he was injured at work. He said the worker was a plumber and he thought the worker may have indicated that he lifted something. The worker had pain in his low back into his leg. He saw the worker again on February 29 and as he still had pain in the left leg, he advised the worker to see a physician.

In a letter dated April 24, 2008, the worker was advised that no change would be made to the original decision dated April 2, 2008. The adjudicator noted that the accident history or mechanism of injury provided to the massage therapist differed from the one provided by the worker in his initial report of injury to the WCB.

In May 2008, the worker submitted an appeal to Review Office. The worker indicated that he injured his back on February 20, 2008 and that a witness confirmed the accident. He felt the WCB incorrectly concluded that his claim was not acceptable.

In a May 8, 2008 decision, Review Office agreed that the worker’s claim was not acceptable. Following review of the evidence by the massage therapist, the information from the employer and its dispatcher/safety representative and the worker’s witness, Review Office indicated that there were many discrepancies in the information provided and therefore it could not establish that the worker suffered personal injury by an accident arising out of and in the course of employment. On May 23, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

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;

Worker’s Position

The worker was represented by a worker advisor who made a submission on his behalf. He answered questions from his representative and the panel. An interpreter was present and assisted the worker.

The worker advisor noted that Review Office concluded the claim was not acceptable due to inconsistencies. He said the worker was at the hearing to address the supposed inconsistencies. He asked the panel to consider if there is a ring of truth to the worker’s version of events.

In answer to questions, the worker advised that:

• he is a plumber
• the heaviest machine that he uses is a steam machine
• he does residential plumbing
• he has never had a problem with his back as suggested by the employer but did have a prior injury to his right elbow

The worker described the accident. He stated he was carrying a five gallon bucket of water for use in defrosting a sewer line at a trailer park and that he fell twisting his back. He did not feel any pain at the time of the fall. He said that the fall occurred in the evening and that it was very cold outside. Upon completing the job he went home and had a hot bath to warm-up. He said he had a hard time standing up in the morning. He described his muscles as feeling like hard rock. The worker then used a non-prescription medication, attended a massage therapist, used a hot cream, used a belt and did some stretching. He also attended his physician.

After attending his physician, the worker advised that he flew to New Jersey and then drove a van back to Winnipeg. He said it took about two days to drive back. He used a non-prescription medication to relieve the pain from his injury.

The worker described the pain as shooting down his left leg. He said he still has the pain. He advised that he is seeking wage loss benefits from the date of the accident until June. He said he did not work during that period.

Regarding reporting the accident, the worker advised that he spoke to the dispatcher on the evening of the accident. He told the dispatcher that he was frozen and fell at work. He said nobody asked for any details. The worker said that on February 22, 2008 he spoke to the owner who agreed he could take two weeks off. He said he also spoke with the dispatcher but that the dispatcher would not have authority to approve time off so he did not ask the dispatcher for time-off.

The worker denied that he had commenced operating a business in April 2008. He advised that he started his business in June 2008.

Employer’s Position

The employer did not attend the hearing, but has objected to the acceptance of the claim.

Analysis

The worker has appealed the WCB decision that his claim is not acceptable. For the appeal of this issue to be successful, the panel must find that the worker suffered personal injury by accident arising out of and in the course of his employment, or in other words that the worker had a workplace injury. The panel finds, on a balance of probabilities, the worker did not have a workplace injury and that the claim is not acceptable.

There are numerous inconsistencies and contradictions surrounding the accident, including:

• worker initially advised the WCB that he reported the injury to the dispatcher a day or two after the accident and that the dispatcher told him to take the next week off. At the hearing, the worker denied discussing time-off with the dispatcher. He said he spoke in person with the owner on February 22, 2008 and that he asked for and received two weeks off work. The employer denies knowing about an accident until March 6, 2008.
  
• worker said he did not have any pain from the accident until the next day but the witness at the trailer park said the worker complained of pain immediately at the accident site. At the hearing the worker could not remember details of the discussion with the witness.
  
• worker said he had no prior back problems but the employer said worker claimed he injured his back previously so could not do heavy work. As well, the MRI dated May 14, 2008 indicates severe degenerative disc narrowing and bilateral apophyseal joint osteoarthritis, which suggests the presence of prior back symptomatology to the panel.
  
• worker flew to New Jersey on or about March 3, 2008 and then drove a van from New Jersey to Winnipeg over a period of approximately two days. He said that Advil relieved pain from the injury. The ability to drive this distance is not consistent with a recent back injury.
  
• the employer indicates the worker bragged that he was running his own business when he attended the employer’s premises on March 20, 2008 to pick up his cheque and tools. The worker advised the panel that he did not commence operating his own business until June 2008.
  
• the massage therapist’s description of the accident differed from the worker’s description. In addition, the worker denied that he told the massage therapist how the accident happened.

In reaching this decision, the panel prefers the evidence noted on the claim file provided by the employer and the dispatcher to the evidence from the worker. The panel finds the worker contradicted his own evidence relating to reporting the accident and obtaining time off work. The panel also finds that the worker could not remember some events, such as a discussion with the dispatcher on operating his own business or discussing his injury with the witness. This suggests the worker has a selective memory which the panel finds unreliable. The panel finds, on a balance of probabilities, that the worker’s back injuries did not result from a work injury, as alleged by the worker. The claim is not acceptable and the worker’s appeal 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 22nd day of October, 2008