The Appeal CommissionThe Workers Compensation Act of Manitoba

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 worker’s left shoulder condition was caused by an accident which occurred at work on July 13, 2009.

The worker’s position:

The worker was represented by a worker advisor at the hearing. It was submitted that the evidence obtained by the WCB supported that the worker had a left shoulder injury that occurred on July 13, 2009 as a result of an incident involving heavy lifting at work. It was noted that when the WCB made its decision, it preferred the statements provided by the accident employer over those provided by the worker. It was suggested that inconsistencies in the statements previously provided by the employer to the WCB called the reliability of the statements into question.

The WCB had denied the claim on the basis that the employer was unaware of the worker's injury, a co-worker was unable to identify the source of the worker's complaints, the delay in seeking medical attention, and the fact that with his long history of WCB claims, the worker ought to have known his responsibility for reporting injuries. It was submitted that while in ideal circumstances, all injuries should be reported immediately and medical attention sought, this does not always occur. The worker advisor noted that with the worker's previous WCB claims, the worker also delayed in seeking medical attention and made an effort to continue working, and yet these claims were accepted by the WCB. The nature of the work being performed by the worker on the date of the accident was confirmed by the employer and the medical evidence did support that the worker was suffering from an injury. Overall, it was submitted that the evidence did support acceptance of the claim.

The employer’s position:

Two representatives from the employer were present at the hearing. The employer confirmed that the worker was lifting broken concrete on the date of the accident, but denied any knowledge of an injury to the worker. The employer submitted that if a worker gets injured on the job, the worker should make a report and get the injury checked out on that same day. It is no good to come back a week later to claim an injury because then there is no way to know when or where the injury occurred. The injury should have been reported right away but was not, and it was submitted that there was now not enough information to find that the injury happened at the accident employer's job site.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s left shoulder condition arose out of and in the course of his employment on July 13, 2009. In order for the appeal to be successful, the panel must find that the worker’s left shoulder condition was caused by the lifting of some heavy broken concrete during the course of his duties. On a balance of probabilities, we are not able to make that finding.

At the hearing, there were conflicting versions as to when or if the worker called the employer to report a shoulder injury and to explain why he was not at work. The worker's evidence was that he called in on the morning of July 21 and advised the employer that he could not come in to work as his shoulder was sore. He also alleged that the employer offered him one week’s pay if he did not file a claim with the WCB, but his evidence was unclear as to when that conversation occurred.

The employer's evidence was that he did not receive a call from the worker on July 21 and he flatly denied that he ever discouraged the worker to file a claim with WCB. The employer’s version was that the worker simply did not report for work on the morning of July 21, and that he called him but was unable to reach the worker.

It is worth noting that both the worker and the employer had difficulty remembering the specific details of when the various conversations occurred.

According to the file, the WCB adjudicator spoke to both the worker and the employer on July 22, 2009. At that time, the worker advised that he told his employer right away that he tweaked his shoulder. He also said that on July 21, he told his employer that he needed to go off work. The employer said that they would pay the worker one week of wages not to file with WCB. The worker declined as he was concerned that his shoulder would not be better by then. In a further telephone conversation later that day, the worker insisted to the adjudicator that he hurt himself on July 13 and that he reported a workplace injury to his employer on July 21.

When the adjudicator spoke to the employer, the employer said that on July 21, the worker did not show up for work and did not call in. The employer tried to call the worker throughout the day, but the worker never responded. The employer was asked specifically if the worker called him on July 21 and he insisted that the worker did not call. The employer was asked whether he discussed any kind of agreement with the worker to prevent him from filing with the WCB. He denied any such discussions.

At the hearing, the employer produced cell phone records for the relevant dates in July, 2009. The records disclose that on July 21, 2009, the employer received three incoming calls at 6:58 am, 7:19 am and 7:29 am. The records do not identify the caller. At 7:41 am, the employer called the worker's number and the call lasted one minute or less. Throughout the day, the employer had other numerous incoming and outgoing calls. At 12:03 pm, the employer called the worker’s number again, and the call was one minute or less. There is no record of any further calls from the employer to the worker.

Although the cell phone records are inconclusive as to when incoming calls were made by the worker to the employer, they do confirm that there were outgoing calls from the employer to the worker at 7:41 am and 12:03 pm on July 21. The worker claims that he called the employer first thing in the morning, before his shift. The difficulty with this version of events is that the worker was supposed to report for work at the employer's yard between approximately 6:15 to 6:30 am. None of the incoming calls were made before that time. The earliest the worker could have called the employer was at 6:58 am, and by that time, he should already have been at the job site and ready to work. This would suggest that the 6:58 am telephone call was not made by the worker.

The outgoing calls at 7:41 am and 12:03 pm are more consistent with the employer’s version that he tried to contact the worker, but was unable to reach him. Further, in the panel’s opinion, it does not make sense that the employer would make an outgoing call to the worker at 7:41 am if he had already spoken to the worker earlier that morning. At the hearing, the worker suggested that the employer may have called him at 7:41 to see whether or not he had changed his mind about coming in to work, but in the panel's view, that does not seem very plausible. As a result, the panel accepts the employer’s version as being a more reliable recollection of the events in general. We therefore find that the worker did not report a sore shoulder to the employer on July 21, 2009, that the worker was absent without explanation on July 21, 2009, and that when the worker called in to ask whether there was work for him on July 22, the employer said there was no work and effectively terminated him.

From a medical standpoint, the panel notes that the worker’s evidence as to his current condition is that since July 2009, he has experienced continual disabling pain in his shoulder. He has not been able to hold a regular job position since the accident. He has been able to maintain employment periodically for up to 3 weeks at a time, but only if he is able to access painkillers which will allow him to function. He is unable to lift his elbow above chest height and cannot move his arm back and forth quickly. If he does, he experiences a significant increase in pain. Nighttime is the worst and he often wakes up due to increased pain from sleeping on his shoulder. He often only gets 3 hours of sleep per night. The worker recently went to a family physician who suspected the worker had suffered a tear inside his shoulder and recommended he go to a sports medicine clinic for assessment and treatment.

The Doctors First Report form dated July 22, 2009 diagnosed the worker as having suffered a left shoulder strain which disabled him from working in any capacity.

It is clear from the worker’s testimony and the medical report of July 22, 2009 that the worker was certainly exhibiting significant symptomatology in his shoulder from July 22 onwards. The date of accident, however, was July 13, 2009, which was 9 days prior. The worker’s own evidence was that from July 13 to July 17, 2009, his shoulder felt “sore”, but it was not a problem and he was able to perform his regular duties throughout that period. He could lift his arm above his shoulder and he did not have any limitations in his range of motion. The absence of immediate and continuous symptoms between July 13 and July 22, 2009 is troubling to the panel. If the worker had suffered a tear on July 13, 2009, it would be expected that he would have pain and limitation in his shoulder immediately from the outset. We do not think that he would have been able to continue to perform his full duties for so many days.

Given the high level of functioning, late reporting of the accident to the employer, and the delay in seeking medical treatment, the panel is unable to relate the shoulder condition described by the worker from July 22, 2009 onwards as being causally related to the workplace accident on July 13, 2009. We therefore conclude on a balance of probabilities that the worker’s left shoulder difficulties did not arise out of and in the course of his employment on July 13, 2009, and his claim is not acceptable. The worker’s appeal is dismissed.