The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

In this appeal, the panel must determine whether the evidence supports the worker’s allegation that he was involved in an accident arising out of and in the course of his employment.

The worker’s position:

The worker was represented by a worker advisor who submitted that there was sufficient evidence to support, on a balance of probabilities, that an accident arose from the worker’s employment. She noted that there was no delay in reporting the accident and that the worker sought immediate medical attention. The chiropractor’s report confirmed that the worker had personal injuries which corresponded with the mechanism of injury. It was submitted that the accident reconstructionist’s report should not be relied upon as the information upon which it was based was inaccurate. Overall, the information on the file provided significant support that an accident did occur in the course of the worker’s employment, from which he was injured.

The employer’s position:

A representative from the employer was present at the hearing. Also present was the accident reconstructionist who had prepared a report. The employer’s arguments questioned the worker’s credibility and specifically challenged the fact that the worker’s version of events had not been consistent and had only changed after the expert report was obtained. The employer also questioned the fact that the worker sustained no facial lacerations or contusions, nor injury to the abdomen. Finally, it was submitted that the key element in the case was the point of contact with the windshield. The accident reconstructionist gave evidence in this regard. He had taken photographs of the shattered windshield after the accident which depicted a starburst pattern. He stated that the evidence of the worker that he was leaning to the right when the accident occurred did not in any way or fashion line up with the impact in the windshield. The worker would not have been able to adjust his position in mid flight. When he was launched, it would have been forward, and if he was located to the right of the steering wheel, this would not be in line with the breakage in the windshield. The breakage would have had to be further to the right. The physical damage to the windshield was not consistent with the worker’s evidence. It was therefore submitted that the evidence did not support the incident.

Analysis:

The question for the panel in this appeal is whether the worker was involved in an accident arising out of and in the course of employment. Specifically, the panel must decide whether the worker struck his head and shattered the windshield of the loader he was operating. On a balance of probabilities, we are unable to find that an accident occurred as alleged by the worker.

At the request of the panel, the employer made the loader available outdoors at the time of the hearing, for the worker to demonstrate his positioning and the mechanics of how the incident occurred. The panel had an opportunity to sit in the cab of the loader with the worker while he demonstrated how the vehicle was operated, how he was seated at the time of the alleged incident, and how his body moved forward after the loader stopped abruptly. The worker also marked on the windshield the point where his head made contact with the glass and shattered it. Subsequently, the accident reconstructionist marked the location (from available photographs) where he observed the centre of the starburst pattern on the cracked windshield following the accident. The panel notes the two marked locations were noticeably different, with the reconstructionist’s location being approximately 2-3 inches to the left of the location marked by the worker and considerably to the left of where the worker demonstrated that his head was, when he was leaning to the right in line with the right edge of the steering wheel.

An argument heavily stressed by the employer was the lack of injury or secondary damage to the worker following impact, other than the cervical sprain/strain noted in the chiropractor’s report. According to the accident reconstructionist, if the loader stopped suddenly, the worker would have been propelled forward towards the steering wheel and dashboard and he would have suffered injury to his abdomen and knees, as well as to his head. Further, it was noted that there was no report of any cuts or bruising to the worker’s head, although the reconstructionist acknowledged that an impact could occur without causing any cuts to the skin.

When demonstrating to the panel the mechanics of how the incident occurred, the worker repeatedly denied that he made any contact with the steering wheel. He stated that he was leaning forward and bent over towards the right. He then showed himself being thrown in an upward and forward direction, over the top of the steering wheel.

After observing the worker in the loader and the dimensions of the cab, the panel accepts the opinion of the accident reconstructionist and we find that contact with the steering wheel would have been unavoidable. The upward and forward motion demonstrated by the worker required his feet to be planted on the floor of the cab. The worker’s evidence was that he was driving the loader forward at the time of the incident. In order to do so, his right leg and foot would have had to be stretched slightly forward to reach the gas pedal with at best only his heel in contact with the floor. His left leg and foot would also be slightly outstretched to be adjacent to the brake pedal. This configuration would place the worker in more of a piked (>) rather than upright position. If the loader stopped suddenly and the worker was thrown forward, the point of contact would have been at least the right edge of the steering wheel, based on how far to the right he was leaning. The panel also observed that when the worker demonstrated how his body moved up and forwards to avoid the steering wheel yet still make contact with the windshield, the movement was somewhat forced and did not flow naturally. The worker’s evidence was that his point of contact with the windshield was the upper part of his left forehead, right by his hairline. The panel has considerable difficulty envisioning how the worker could have struck this part of his head without first making forceful contact with the steering wheel.

The panel further finds that the location on the windshield marked by the worker as the point of contact is not consistent with the photographs of the shattered windshield following the accident, or to where his head was aligned during his demonstration. The photographs depict a starburst pattern with the point of impact as being to the left of the centre of the windshield, as oriented by the bucket piston. When observing the interior of the cab, the panel noted that the steering wheel was centered in the cab directly behind the bucket piston. When the worker marked the point of impact on the windshield, the spot he marked was significantly further to the right hand side of the steering wheel. Given the low speed and the straight ahead travel of the loader, the panel finds that the major right to left movement of the worker’s head, from the worker’s pre-accident position to the point of contact on the windshield to be improbable.