The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) with regard to a back injury that was alleged to have occurred at work on March 18, 2009. The claim for compensation was denied by primary adjudication and Review Office. Both were unable to establish that an accident at work occurred on March 18, 2009. The worker disagreed with the decisions. An appeal was filed with the Appeal Commission. A hearing was held on April 7, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In a worker incident report prepared on March 25, 2009, the worker reported that she injured her lower back on March 18, 2009 in a workplace accident. The report states:

I was in the fridge and I was trying to get down a box of hash browns. They are very high up and I was wiggling the box so that it would come down. As I was doing this, I twisted my lower back. At first I didn't think anything of it and thought it was from the cold air. By the time I got home and when I went to bed, I was in severe pain.

I had already pre-booked the next two days as vacation. On March 20-09, [the assistant manager] called me at home and asked me what happened. I told her that I hurt my back trying to get the hash browns down from the shelf.

The worker reported that she saw her doctor on March 23, 2009 and was told she strained the muscles in her shoulder as well as in her upper and low back. In explanation for the delay in reporting the incident, the worker incident report states:

At first I didn’t think anything of it. But by the time I got home, it was bad. I was going to call her but she called me first.

A doctor’s first report confirmed that the worker was treated on March 23, 2009 for stiff and sore shoulders and low back. The diagnosis outlined was a back strain. The worker’s description of the injury to the physician was “twisted back while trying to remove a box from top shelf.” The treatment plan consisted of medication and a referral to physiotherapy.

On March 26, 2009, another physician reported the worker’s entrance complaints as pain in the mid and low back. X-rays taken the same day of the lumbosacral spine revealed small osteophytes anteriorly from L2 to L4. X-rays of the thoracic spine indicated that the visualized portions of the spine demonstrated normal alignment and the vertebral body heights and disc spaces were well maintained.

A WCB adjudicator spoke with the worker on March 26, 2009. With respect to the mechanism of injury, the worker said she leaned back to allow the box of hash browns to land on her upper chest area. The box struck her neck when taking it down. The worker indicated that the pain was not immediate but was felt later that evening. She felt pain in the low back and down the centre of the back. The worker suggested that she left two voice mail messages with a senior manager on March 18 and that she called in on March 20. She advised that she spoke with the office manager on March 23 regarding her injury.

On March 27, 2009, the WCB adjudicator spoke with the senior manager who indicated that the worker arrived at work at 6:47 am on Tuesday, March 18. The worker completed her entire shift and did not mention a work incident. The senior manager indicated that the worker called him on March 19 requesting a vacation day to take her mom to the doctor. She did not mention an injury at that time. On March 20, the worker called and requested an additional vacation day to take care of her mom and did not mention an injury. On March 22, the worker left him a voice mail message that she hurt herself on March 18. On March 23, the office manager contacted the worker. The manager referenced safety rules that were discussed and signed on the date of employment about the importance of reporting injuries as soon as they occur.

On March 30, the WCB adjudicator called the worker who indicated that she previously booked off March 19 as a vacation day to take her mom to hospital. The worker confirmed that she called on March 19 requesting March 20 off. She indicated that she did not mention being in pain because she had left two voice mail messages the evening of March 18.

On March 30, 2009, the WCB adjudicator spoke with the office manager. The office manager indicated that the worker worked and completed her scheduled shift on Wednesday March 18. She confirmed that the worker had requested March 19 off in late February both in order to take her mother to the hospital and because it was the worker’s birthday. On March 20, the worker called and requested the day off to take her mom back to the hospital. She did not mention a workplace injury.

The office manager noted that following the senior manager’s receipt of a March 22 message indicating the worker had been injured, the worker was contacted by the office manager. During this discussion, the worker said she was hurt on March 18 while taking a heavy box out of the refrigerator. The worker did not feel any discomfort until Wednesday evening and that was why the injury was not reported earlier. In that conversation, the worker also suggested that she had left a voice mail message for the senior manager on March 18 in the evening.

On March 30, 2009, the adjudicator spoke with the worker’s shop steward/health and safety representative. The shop steward noted that on March 18, 2009, she spoke to the worker to wish her a happy birthday but the worker did not mention an injury nor were there signs of limping or complaints of pain. On March 23, after finding out about the worker’s injury from the second manager, she spoke with other co-workers to find out if there were any witnesses to the incident. She contacted the worker on March 23. In that discussion, the worker said she did not mention the incident because she did not feel any discomfort until the evening.

In a March 31, 2009 decision, the worker was advised that her claim for compensation had been denied as the WCB was unable to confirm that an accident occurred given that the worker did not report the injury to her employer and because of her delay in seeking medical treatment for an extended period of time following the accident.

At the request of a worker advisor, a WCB adjudicator contacted the worker on July 2, 2009 for additional information. The worker indicated that on March 18, 2009, while taking a 40-50 pound box of hash browns from a high shelf above shoulder level, she felt pain in her low back. The box was stuck on a wire rack in the freezer requiring the worker to apply more force to lift the box. She sat the box down on a nearby table and then said out loud “I think I just hurt my back.”

The worker indicated that she then left the kitchen area to fill out an injury report but realized there was none available in the “usual” spot. She got a ride home from a co-worker after her shift but did not mention the injury to him. The worker indicated that although management were present, she did not mention what had happened earlier that day. Around 7 pm that day, she could not move because of severe pain. She wanted to go to the hospital but could not do so because of the pain she was in. She then called the senior manager and left two messages stating that she had hurt her back earlier that morning at work, could not find the accident forms to fill out, and she was unable to move. She requested a call back but did not receive any calls.

The worker stated that March 19, 2009 was her pre-scheduled day off to take her mom to the doctor and it was her birthday. She contacted her employer to request March 20 off since she was unable to take her mom to her pre-scheduled appointment due to her sore back. She did not mention any workplace injury. She called work on March 22, 2009 for the third time and wondered why she had not received a call back from the senior manager and left him another message regarding her injuries.

On March 23, 2009, the office manager called regarding the message left on March 22, 2009. The worker said she provided the office manager with an explanation of her injury and noted that she was unable to find the green forms. The worker indicated that she was aware of the company’s reporting policy for injuries sustained at work but was unable to find a green card to fill out.

The adjudicator contacted the senior manager on July 2, 2009. The senior manager stated that there were no messages left from the worker on his voice mail on March 18, 2009. The worker called him on March 19, 2009 and requested March 20 as a vacation day to take care of her mom. The worker did not mention an injury. On March 23, 2009, he received a message from the worker regarding her March 18 injury. The voice message was left on March 22, 2009. The office manager contacted the worker to discuss the mechanism of injury.

On July 2, 2009, a physician provided a letter which is marked as Exhibit 1 to the proceeding. In the letter, the physician indicated that the worker was employed as a cook and on March 18, 2009, while she was holding a heavy box, it fell on her chest and she jerked her spine and noticed low back pain. She reported this incident to her supervisor the same day, completed her shift but could not document the incident report.

On July 6, 2009, the worker was advised that no change would be made to the original decision. The adjudicator indicated that she was unable to establish that the worker reported difficulties while at work on March 18, 2009. She noted that the worker called in on March 19, 2009 and requested a vacation day and did not mention a work place injury. Neither the employer or a co-worker were aware of the worker’s back difficulties prior to the completion of her shift on March 18, 2009.

On July 13, 2009, a worker advisor appealed the adjudicator’s decision of March 31, 2009 to Review Office. The worker advisor submitted that the worker was entitled to benefits from March 18, 2009 forward on the basis that the worker left two phone messages on the employer’s voice mail on the evening of the accident which were cut off and that she sought medical treatment on March 23, 2009 which was well within the 30 day limit as stipulated in subsection 17(1) of The Workers Compensation Act (the “Act”). In her letter, the worker advisor states that:

By way of background, [the worker] is a short order cook who as part of her duties was attempting to lift a heavy box of hash browns down from the top shelf.

As she was attempting to move the box she felt a ‘twist” in her lower back. [The worker] was able to complete her shift and did not inform her employer of any difficulties to her lower back as she did not begin to experience any pain until she returned home.

On August 18, 2009, Review Office confirmed that the claim for compensation was not acceptable. Review Office stated there were many discrepancies in the worker’s reporting of the claim beginning with her initial report to the WCB on March 25, 2009. Review Office noted that the worker had several opportunities to report the injury at work on March 18 or when she spoke to her manager on March 20 and yet she did not report the injury until March 23 when her manager called her at home in response to her message of March 22. Review Office said there was no evidence of an injury until the worker attended a physician on March 23, 2009. The worker advised that her physician was located at a walk in clinic yet she made no attempt to attend the clinic until March 23. Review Office concluded that there was insufficient evidence to support the view that the worker sustained an injury as a result of the incident that she described occurred at work on March 18, 2009.

On October 1, 2009, the worker advisor provided Review Office with a report from the worker’s attending physician dated September 1, 2009. The physician indicated that the worker telephoned him on March 20, 2009 and advised him by phone that she had injured her back and was seen for assessment on March 23, 2009. On March 23, the worker complained of stiff sore shoulders and low back. The physician stated, “I do not agree with the rejection of her WCB claim and believe her claim for injury was legitimate.”

In a memo to file dated November 19, 2009, Review Office outlined the following information that it obtained from the worker’s treating physician:

· there was no entry on the worker’s chart for March 20, 2009;

· the attending physician did not recall the specifics of the telephone call with the worker but stated the worker “just wanted to see me about her back.” He recalled telling the worker that she could see another doctor at the clinic but he would not be available until March 23;

· the physician was unable to recall whether the worker provided any details regarding where or how she injured her back when he spoke with her on March 20, 2009.

On November 19, 2009, Review Office advised all parties that there was insufficient evidence to establish that a back injury occurred at work as the attending physician could not confirm whether the worker advised him of a work related back injury when he spoke with the worker on March 20, 2009.

In December 2009, the worker provided Review Office with witness statements in support of her contention that she injured her back at work on March 18, 2009. The documents included:

•  a facsimile from an individual dated December 23, 2009 indicating that the worker had made it known to the writer that “on March 18, 2009 that she had injured her back” and that she required assistance with her chores;

•  a facsimile dated December 23, 2009 from a neighbor of the worker indicating that the worker “brought to my attention” that she had hurt her back on March 18, 2009;

•  a facsimile dated December 23, 2009 indicating that on March 18, 2009 the writer had received a call from the worker indicating that she had been injured at work and was unable to get out of bed; a statement dated January 12, 2010 from the same person indicating that the writer had driven the worker’s mother to a doctor’s appointment on March 20, 2009;

•  an August, 2009 thank you letter to the friend who had driven her mother to the doctor’s appointment stating “p.s. Many thanks for taking my mom to her Doctor on March 20, 2009”;

On January 21, 2010, Review Office indicated that there would be no change to its decision dated August 18, 2009. On January 29, 2010, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

The oral hearing took place on April 7, 2010. On behalf of the worker, her advocate indicated that the worker:

•  suffered a work place injury on March 18, 2009;
•  sought medical attention March 20 and 23;
•  reported the injury on a timely basis by contacting her employer the evening of March 18, March 20 and March 23.

In the advocate’s submission:

We suggest that [the worker] did suffer a specific accident while performing her work duties, that she did suffer some amount of pain but was able to continue working and able to complete her shift. She was able to go home, prepare her dinner and was able to sit and relax. Only after sitting and able to relax did she begin to experience the sharp severe pain, which caused her to retire to her bed with medication.

During questioning from her advocate, the worker provided a description of the mechanism of her injury.

At 6:45 in the morning, I went into a freezer to go and get a box of hash browns, and I was trying to maneuver the box down and once I was able to accomplish that it fell on my chest and I went back and I hit my upper and lower back on the rack behind me.

So at that moment I felt some pain and when I came out of there I immediately went to go and look for one of these cards to fill out, a green card, stating that I had, I might have injured my back. So I couldn’t find any and so I thought, okay, I’m busy, I got to hurry up, so I didn’t bother.

I went to my place of work and the pain left me within about, I’d say about 15 minutes, went back to my station and there was no pain or anything the whole day. I never, I did not mention anything to nobody because I didn’t have no pain.

In the course of the hearing, the worker took the opportunity to provide further explanation of the incident and her reaction to it.

She indicated that the box weighed between 50 and 60 pounds and was located on a metal rack 6 feet tall. In describing the rack she fell into, she indicated that it also was about six feet tall with 3 or 4 shelves which had raised edges. She suggested that she hit her upper and lower back against these edges. The worker estimated that the distance between the two racks (in front and behind her) was about 3 feet in width.

The worker testified that the “pain it was very sharp at that moment.” She indicated that she had about 8 co-workers and that she took a break with four or five of them at 9:30 in the morning. There was no suggestion that she had advised them of her injury at that point in time. Later in the hearing, the worker was asked to respond to the suggestion in her original incident report that she had twisted her back. She addressed this point by suggesting that as she fell she was pivoting from left to right and also going backward.

In describing subsequent events, the worker indicated that she:

•  called work that evening and left one message then called work at 9:00 the next day and there was nobody there;
•  called on the afternoon of March 19, 2009 stating that she had hurt her back and that she was also taking the 20th off because she was so sore. She confirmed that when she called on the 19th, “I didn’t mention my back”;
•  called her doctor on March 20, 2009 and “I told him that I injured my back at work;”
•  left a message with her senior manager on Sunday May 22 stating that she had hurt her back;
•  discussed her work place injury with the office manager on the morning of March 23.

Reasons

Overview

Based on a balance of probabilities and considering the evidence as a whole, the panel is unable to find that the worker suffered an injury by accident arising out of and in the course of employment on March 18, 2009, and thus her claim is not acceptable.

The Statutory Framework

Subsection 4(1) of The Workers Compensation Act provides that

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.

Under subsection 1(1) an accident is defined as

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

(c) an occupational disease,

and as a result of which a worker is injured.

Summary of Key Findings

Considering the record as a whole and based on a balance of probabilities, the panel is of the view that the worker’s back problems in March 2009 were not the result of an accident arising out of and in the course of her employment.

In drawing this conclusion, the panel finds that it cannot rely on the evidence of the worker suggesting the accident arose out of and in the course of her employment. The panel’s determination in this regard is based upon three central findings:

l the worker’s descriptions of her pain symptoms are not consistent or reliable. In the initial incident report, the worker explained that her failure to immediately report any workplace injury on March 18 was that “at first, I didn’t think anything of it.” A similar theme was echoed in her statement to the adjudicator of March 26, 2009 where it is recorded that “the pain was not immediate.”

However, in her re-interview by the adjudicator on July 2, 2009, the worker indicated that as a consequence of the workplace injury, she said aloud “I think I just hurt my back” and went to fill out an injury report which she was unable to do because there were none available. The worker echoed this version of events at the oral hearing.

In the panel’s view, there is a material inconsistency in these versions. In the worker’s earlier and more contemporaneous description of her pain symptoms, the initial pain appears as relatively minor or non-existent. In her version of events over three months after the event, the pain symptoms appear to be immediate and material such that she felt the need to report an injury using the reporting form or green card. No reference to any missing green cards appears in her contemporaneous discussion of events.

Given these inconsistencies as well as the fact that the more time proximate versions of events suggest otherwise, the panel cannot draw the conclusion that there were immediate and material pain symptoms resulting from any incident with the hash brown box on March 18, 2009.

The worker’s initial evidence in the oral hearing suggests that the injury took place when she fell back against an adjacent rack striking both her upper and lower back. This is the first reference on the record to the mechanism of injury being contact with a rack that was behind the worker. No reference to the box striking her neck is made. Later in the oral hearing, the worker’s evidence again incorporated a twisting action suggesting that she was pivoting from left to right as she fell backwards against the rack.

Considering the record in terms of just these four statements, at least three different mechanisms of injury are suggested including an injury resulting from a twisting motion, an injury resulting from the impact of the box upon the worker’s chest or neck or an injury resulting from the striking of the worker’s upper and lower back against the adjacent rack. The material inconsistency in these versions raises challenges both in determining whether an event occurred as well as in attempting to relate any specific mechanism of injury to the injuries which the worker identifies;

•  the worker’s suggestion of a workplace injury on March 18, 2009 is not corroborated by her co-workers, her managers or an incident report of March 18, 2009.

Given the inconsistencies in the worker’s explanation of her pain symptoms as well as the inconsistencies in her description of the mechanism of injury, challenges exist in terms of determining based on a balance of probabilities that an injury by accident arising out of and in the course of her work occurred.

In this context, it is important to note that there is no March 18, 2009 corroboration of the worker’s injuries by an incident report, a co-worker or a supervisor. There is no incident report until a number of days after the accident. Neither the shop steward’s investigation or the worker’s own evidence identifies any potential corroboration of the worker’s version of events by a co-worker or supervisor. There is no suggestion that the worker conveyed any of the details of her injury or workplace accident to either her co-workers or managers on March 18, 2009.

The panel notes the suggestion that the injury occurred early in the workday of March 18, 2009. The worker spent the rest of her shift at work; she took a coffee break with 4 or 5 of these co-workers at or about 9:30 in the morning; she chatted with the shop steward who wished her a happy birthday; her supervisors were present for much of her shift.

Yet, despite prolonged and numerous opportunities to disclose to her co-workers or supervisors that both a workplace accident and an injury took place there is no corroboration. The panel finds it extremely difficult to reconcile this absence of corroboration with the worker’s evidence that her pain was immediate and that she went to register her injury on a green form only to discover that no green cards were to be found.

Conclusion

Based on the foregoing key findings, the panel is unable to find on a balance of probabilities, that an injury by accident arising out of and in the course of employment occurred.

The appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 4th day of June, 2010