The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for work related injuries that he sustained on February 5, 2008. The claim for compensation was denied by both primary adjudication and Review Office on the grounds that it was unable to establish that an accident occurred on February 5, 2008. The worker disagreed and filed an application to appeal with the Appeal Commission. A hearing was held on September 11, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

While trying to move a wheeled garbage container filled with 3000 to 3500 lbs. of concrete dust on February 5, 2008, the worker reported that he heard a snap in his back. He worked very slowly for a short period and then left work due to stiffness and pain in his low back. The following day he was off work. On February 7, 2008, he tried to work but was unable to due to pain. The worker noted that he reported the accident to his employer on the same day of his injury.

The employer’s report of injury stated that the worker did not report an injury to anyone at the job site. The worker had been laid off on February 10 for an attitude problem and he was given a record of employment on February 15, 2008. The employer noted that the worker’s wife had back pain on February 6 and that he took her to the hospital. The worker was fine on February 7, 2008 when he came in to work.

On March 11, 2008, the accident employer’s owner advised the WCB that he interviewed other employees that were working on February 5, 2008. They worked February 4, 5, 6 and 7 and not one of them witnessed or heard of any accident or mishap in relation to the worker. The owner was on the job site on February 5 and he did not see anything at that time.

A WCB adjudicator spoke with the worker on March 14, 2008 to gather additional information. With regard to the mechanism of injury, the worker stated that around 2 p.m. he was moving a garbage container full of concrete dust and heard a snap in his back. He said the garbage container was in his way and that was why he moved it. They were just finishing up and were cleaning and picking up tools. The worker said there was another guy on the other side of the building but there were no witnesses. The worker indicated that he told the employer’s owner that he heard a snap.

The worker denied taking his wife to the hospital on February 6. He said she had an appointment but he did not take her. The worker stated that they were coating (painting) the floor on February 7. The owner of the building tried to tell them to move the same garbage container. He said he told them that they would not do that as it was too heavy to move. The worker indicated that he advised his employer on February 7, that his back was still bothering him and that he could hardly move. The worker indicated that all the guys knew that his back was bothering him. He said he delayed in seeking medical treatment until February 12 as he thought it wasn’t going to be that bad.

On March 14, 2008, the WCB adjudicator spoke with the employer’s owner. He indicated that the worker was employed with them for about 12 years and in the last year or so, the worker had some difficulties with other co-workers. On February 7, the worker had an argument with one of their major clients on the job site and the customer said he did not want the worker back on the job site. The worker was subsequently laid off and was given a layoff notice on February 11 and a record of employment. The employer maintained that neither he nor three other co-workers knew of or saw an accident or heard a complaint from the worker. The employer noted that the worker’s job was as a supervisor and that it was not usual for him to do the task of pushing the garbage container as the worker would tell others what to do. The employer noted that it was a co-worker, D, who had pushed the garbage container and that the worker was watching him. The owner said he saw where the garbage container was on Tuesday and it was in the same spot on Thursday. The garbage container was a small container on wheels and would have contained garbage and cement but he did not think it would have weighed 3000 lbs. The employer called the WCB adjudicator back on March 14, 2008 and had two co-workers with him that were on speaker phone. The co-worker, D, stated that he had moved the garbage container and the worker was running another piece of equipment. The co-worker, D, had not worked with the worker on February 7 but another co-worker, E, did. The co-worker, E, indicated that the worker did not complain of a sore back on February 7.

Later on March 14, 2008, the employer contacted the adjudicator. He indicated that according to the co-worker, D, he had moved the garbage container in the morning of February 5 because they had to clean up around it. When the co-worker, D, moved the garbage container he hit a bag of sand and the worker got upset with him. The employer stated that the co-worker, E, came to the jobsite around 12:30 on February 5 and the garbage container had already been moved. They left the job site that day around 3 p.m.

In a decision dated March 31, 2008, the worker was advised by primary adjudication that his claim for compensation had been denied. It was indicated that in speaking with his employer and statements received from co-workers, the WCB was not able to confirm a workplace injury had been reported or that anyone was aware of the worker’s difficulties. The worker had a day off on February 6, 2008 and he attended his regular duties on February 7, 2008. He did not report any back difficulties according to the employer and co-workers. Based on all the information, the WCB was unable to establish a workplace injury occurred on February 5, 2008.

On April 30, 2008, a worker advisor asked the WCB to reconsider its decision to deny the worker’s claim. The worker advisor pointed to file evidence showing that there were discrepancies in the employer’s reports to the WCB and that the worker had provided consistent and reasonable information throughout his communications with the WCB. He submitted that while the evidence did not prove the worker’s claim, his consistency suggested that his reports, on a balance of probabilities, most accurately reflected what transpired on February 5, 2008.

Prior to considering the appeal, Review Office contacted the employer and several co-workers for additional information. These discussions are outlined in a memo by Review Office dated May 14, 2008.

On May 15, 2008, Review Office determined that the claim for compensation was not acceptable. Review Office indicated that despite the extent of its investigations, it was unable to find sufficient evidence of an accident. There was consistent information provided by five potential witnesses, stating that no one at the worksite was aware of an injury. After considering the totality of the evidence, Review Office was unable to confirm that an accident occurred on or around February 5, 2008. In June 2008, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested and received additional information from the worker’s treating physician and the accident employer which was provided to the interested parties for comment. On November 14, 2008, the panel met and rendered it final decision.

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 attended the hearing by himself. He provided information on his job duties and the job site where he was injured. He advised that on February 5, 2008 at around 1:00 pm he attempted to move a garbage container with metal wheels. He said it was full of dust and was very heavy. As he tried to move the container, he heard a snap and couldn’t move. After the incident, he did some cleaning, put his stuff in a vehicle and returned to the company shop which was located in another building. He advised his employer of the injury when he arrived at the company shop.

The worker advised that when he attended work on February 11 his employer advised that he was laid-off. He said that the employer said he lost a contract due to an incident between the worker and the client. The worker advised that he attended a hospital emergency ward on February 12 due to the pain from the injury.

The worker provided a written response dated November 5, 2008 to the additional information which was received by the appeal panel. He disagreed with the employer’s information regarding the recording of hours. He said that he is a salaried employee and does not record work hours. He said any hours that are recorded are recorded by the employer. He noted other differences in the information from the employer and commented that he has consistently and honestly reported, and that his testimony is the best evidence in support of the claim.

He noted the medical reports which he said confirmed that he was injured at work.

Employer’s Position

The employer did not participate in the appeal but responded to a request for information from the appeal panel after the hearing. The employer advised that the worker did not tell him about the injury although he saw him on several occasions. He advised that the worker worked a full 8 hour shift on February 5, did not work on February 6 for personal reasons, and worked 9 hours on February 7. The employer advised that the hours are recorded by employees or reported to the office and recorded by the employer. The employer also advised that the worker was the senior man at the site and that it was not within the scope of his tasks to move the bin and he would not have been expected to move it.

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 in the information surrounding the accident, including:

• The worker reported that he informed his employer of the injury on February 5, the day of the injury. The employer advises that the worker never advised him of the injury. Several co-workers were contacted by the WCB and all indicated they were not aware that the worker was injured at work.
• The worker reported that the injury occurred while he tried to move a large garbage bin. None of the co-workers saw this incident. One of the co-workers claimed that the bin was only moved once and that he was the one who moved it. The employer advised that moving the garbage bin was not within the scope of the worker’s tasks as the senior man on site.
• The worker did not attend the hospital until the day after he had been laid off by the employer. The worker did acknowledge that he did not tell the employer on February 11, that he was going to see a doctor on February 12. He indicated that he had no chance to tell the employer that he was going to see a doctor because of the shock of being laid off.

In weighing the evidence, the panel does not prefer the worker’s evidence but instead prefers the evidence on the file. The panel attaches more weight to the following evidence:

• Employer’s advice that worker did not report incident.

• Evidence that co-workers were not aware of incident or injury.

• Evidence that worker was able to work 9 hours on February 7, 2008, which the panel finds inconsistent with the evidence that the worker suffered a significant injury on February 5, 2008.

• Evidence that worker did not seek medical attention until February 12, the day after he was laid-off and that worker did not advise his employer on February 11 that he was going to seek medical attention.

Considering all the evidence, the panel finds, on a balance of probabilities, that it cannot establish that the worker was injured at work on February 5, 2008 and therefore the claim is not acceptable. The 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 December, 2008