Decision #34/10 - Type: Workers Compensation

Preamble

On June 10, 2009, the worker filed a claim with the Workers Compensation Board (“WCB”) for an injury to his thumb which occurred at work on May 31, 2009. The claim for compensation was denied by primary adjudication on the grounds that it was unable to establish that the worker suffered personal injury by accident arising out of and in the course of his employment. This decision was confirmed by Review Office on July 28, 2009. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 4, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker reported that on May 31, 2009, the hammer he was swinging missed and he caught his right hand on a cotter pin. He reported that his thumb nail split in half and his middle finger was cut three-quarters of an inch across the knuckle and to the bone. He wrapped his finger with a rag and used Krazy glue to close the cut. His finger was stiff throughout the day and he continued working. The incident occurred around noon or 1:00 p.m. The worker stated that he went to the hospital on June 4, 2009 for treatment as the cut on his finger was infected. He was given a Tetanus shot and had emergency surgery on June 5, 2009. The worker said he reported the accident to his boss on May 31, 2009.

On June 11, 2009, the employer advised a WCB adjudicator that he did not witness the worker hurting himself on May 31, 2009 nor did the worker mention anything to him about an injury.

He said he asked the worker at the end of his shift how things went and the worker said good and that the truck was finished. He noted that the worker had June 1 to 3 as days off and did not come into work on June 4. The employer then called the worker’s residence and spoke with his wife. He was told that the worker cut his finger on something and that he went to the hospital. At 3:00 p.m. the same day, the worker phoned and said he severed a tendon in his finger while doing spring pins on the truck. There was no one else at the shop on May 31. The employer asked the worker why he never said anything and the worker replied that when you’re a mechanic, you always get cut and he did not think anything of it but it became increasingly sore. The employer indicated that the worker does business on the side at his dad’s garage and he was concerned that the worker may have injured his finger there.

The adjudicator spoke with the worker on June 11, 2009. The worker stated that his boss was in the shop working with him when he hammered his finger. He said he yelled and the boss didn’t poke his head out to see, but said “that must have hurt” and “glad it wasn’t me”. The worker stated that as a mechanic he gets banged up all the time and doesn’t think anything of it. The worker thought that by yelling and saying it hurt he was reporting to the employer. The worker indicated that he called the office on his way to the hospital on June 4 and spoke with another employee. He told him that he got hurt during his last shift and was getting it checked out.

On June 12, 2009, the adjudicator spoke with the employer. She asked the employer regarding his recollections about the worker yelling out in pain and the employer’s awareness that the worker hurt himself. He was certain that he did not hear the worker yell and denied saying to the worker that he was “glad it was not him”. The employer indicated that he found out that the worker spoke with another mechanic at 7:30 a.m. on June 4, 2009 on his way to the hospital. The mechanic forgot to let the employer know of that conversation, and therefore the employer did not find out until 3:00 p.m.

On June 15, 2009, the worker told the adjudicator that he did not seek immediate medical attention because he glued the wound shut. He was off on Monday, Tuesday and Wednesday. The cut was only three quarters of an inch in length. He said his hand felt stiff and that the pain progressed over his days off. By Wednesday, he could not touch it.

On June 17, 2009, the employer advised the WCB that he was only with the worker for about half an hour around 6 p.m. on the day of the incident. He was only in and out briefly throughout the day. He did not see the worker bleeding or witness a cut and the worker did not report anything.

In a decision dated June 17, 2009, the worker was advised that his claim for compensation was not compensable as the adjudicator was unable to establish that he suffered an injury “arising out of and in the course of” his employment. The adjudicator clarified that since she could not confirm with the employer that the worker reported any incident on May 31, 2009 and because no medical attention was sought until June 4, 2009, she was unable to establish that an incident took place on May 31, 2009.

On July 9, 2009, a worker advisor appealed the June 17, 2009 decision to Review Office. The worker advisor noted that the worker eventually sought medical attention on June 4, 2009 because his middle finger did not improve and instead became more stiff and swollen. He noted that the worker called his employer to advise that he would not be in to work on time and explained that he was going to the hospital. The hospital emergency report on file confirmed that the worker attended the hospital at 8:28 a.m. on June 4, 2009 for a laceration to his right middle finger which reportedly occurred at work four days earlier. The worker advisor noted that the operative report on file provided another consistent account of the worker’s injury. He stated that the medical reports provide a corroboration of the worker’s claim of a work related accident on May 31, 2009 and that the development of the infection would indicate that the injury occurred in the time frame reported by the worker. He noted that while the employer had denied any personal knowledge of the worker’s accident, there was no evidence that the worker’s statements were untrue.

Review Office considered the case on July 28, 2009 and confirmed the previous decision that the worker’s claim for compensation was not accepted. Review Office placed weight to the following evidence in rendering its decision:

· it was not corroborated by the employer that the worker yelled and the employer responded;

· the employer did not notice any indication of an injury (i.e. the worker stated he wrapped his finger with a rag and completed his shift) when he spoke with the worker before leaving.

· the employer asked the worker how things were before he left for the day and the worker responded OK.

· the June 5, 2009 surgery report indicated “no obvious cellulitis or tenosynovitis…there was no obvious frank pus…no tracking or extension of the fluid”. Review Office indicated that these findings would not assist in establishing when the injury had occurred. When considering the worker’s description of the cut being ¾ inch and to the bone and the worker’s self treatment with glue, one would expect a more severe infection present at the time of the surgery.

On August 31, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. 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)

The key issue to be determined by the panel deals with causation and whether the injury to the worker’s right hand arose out of and in the course of his employment.

The worker’s position:

The worker appeared at the hearing, accompanied by a worker advisor. The worker advisor’s position was that the worker’s injury was compensable and that his claim should be accepted because the evidence, on a balance of probabilities, supported that the injury arose out of and in the course of his employment. The worker advisor noted that the WCB denied the claim based on the employer’s assertion that he had no knowledge of the worker’s accident. It was submitted that there was no reason why the employer’s statement should be accepted as more credible than the worker’s, and in fact, there may be financial motive in why the employer may want the claim to be denied. The worker had provided a consistent account of injury, and the medical reports provided corroboration of the worker’s claims that the injury arose from a work related accident on May 31, 2009. The information provided by the worker was sound and provided sufficient evidence to support acceptance of the claim.

The employer’s position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel is whether the worker’s right hand injury and subsequent infection arose out of and in the course of his employment. In order for the worker’s appeal to be successful, the panel must find the worker sustained the injury to his right middle finger during the course of his employment on May 31, 2009. On a balance of probabilities, we are able to make that finding.

This case comes down to an issue of credibility. The worker says that he injured his finger while he and his employer were working side by side. They briefly discussed the injury and the worker had to take a short break from working in order to tend to his injury. It would be impossible for the employer to have been unaware of the fact of the injury.

Although the employer did not participate in the appeal hearing, information from the WCB file indicates that the employer stated that he did not see anything and that he did not witness the worker hurting himself. On May 31, 2009, the worker worked until 6:30 pm and at the end of the shift, the employer asked the worker “how it went.” The worker replied: “Good, the truck is finished.” The worker did not say anything about being injured. He left for the day and the employer did not hear from him until he phoned the worker on June 4, 2009 when the worker did not show up for his shift. The employer indicated that he asked the worker why he never said anything. The worker’s response was that as a mechanic, he always gets cut and he didn’t think anything of it.

If the panel is left with two equally plausible versions of what occurred, then the claim cannot be accepted as the balance of probabilities has not been tipped in one direction or the other. In this case, however, the panel feels that there is sufficient corroborating evidence to support the worker’s version of events, as follows:

  • The histories of injury given by the worker to the emergency room staff, the plastic surgeon, and his family physician all consistently refer to an injury at work occurring in the May 31, 2009 timeframe;
  • June 1, 2 and 3 were the worker’s regular days off, and it is therefore understandable why the worker had no further contact with the employer about his injury during these days;
  • The timing of the injury in relation to the degree of infection present 4 days later when the worker presented at the emergency department was accepted without question by the emergency room physician and the plastic surgeon;
  • The mechanism of injury to the right hand described by the worker at the hearing is consistent with the report of injury given by the worker to the WCB. At the hearing, the worker demonstrated how he gripped the hammer, and showed how his thumb would be located very close to the right middle finger. When his swing went off course and he grazed his right hand on the frame of the truck, it is plausible that he would scrape his right middle knuckle and crack his right thumb nail at the same time, from a single swing;
  • Although the employer stated that the worker also does business on the side in his father’s garage and suggested that the worker may have injured his finger there, the panel questioned the worker on the existence of a side business and these assertions were not substantiated.

Based on the foregoing, the panel accepts that on a balance of probabilities, the worker’s right hand injury was more likely to have been sustained while he was at work, rather than by another non-work related source as asserted by the employer. It is therefore our decision that the claim is acceptable. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 27th day of April, 2010

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