Decision #101/10 - Type: Workers Compensation
Preamble
In August 2009, the worker was working for two employers (Employer A and Employer B) when he suffered an injury to his left shoulder. Following an investigation by the WCB, it was determined that Employer A was the accident employer responsible for the costs of the claim. Employer A appealed the acceptance of the claim as well as the WCB's decision to pay the worker wage loss benefits. A hearing was held at the Appeal Commission on June 15, 2010 to consider the matter.
At the June 15 hearing, the appeal panel expressed concern that Employer B was not present at the hearing and had not been given notice of the appeal. The hearing was therefore adjourned to determine whether Employer B should be notified as a party with a direct interest. It was subsequently determined by the Chief Appeal Commissioner that Employer B should be given the opportunity to participate in the appeal. The issues under consideration were also re-framed to reflect Employer B's involvement and the hearing was reconvened on September 15, 2010.
Issue
Whether or not there is an acceptable claim against [Employer A] and/or [Employer B]; and
Whether or not the worker is entitled to wage loss benefits due to a workplace accident with [Employer A].
Decision
That there is an acceptable claim against both [Employer A] and [Employer B]; and
That the worker is not entitled to wage loss benefits due to the workplace accident with [Employer A].
Decision: Unanimous
Background
On August 13, 2009, the worker filed a claim with the WCB for a left shoulder injury that occurred on August 11, 2009. The worker stated, “I was doing assembly of doors and windows. I was lifting and I got a pain in my left shoulder. I was able to finish my shift. I work full time also 1 pm to 9 pm at [Employer B]. I am a truck driver. I noticed at one of the pick ups, my shoulder froze on me…”
Correspondence received from Employer A indicated “This incident did not happen at our place of employment. This employee has a second job and he notified us that it happened at that place of employment.”
Correspondence received from Employer B indicated that the worker was lifting furniture on August 11, 2009 when his co-worker bumped him slightly. The worker fell to the ground and experienced pain. The employer noted that according to the worker, the injury to his shoulder was an old injury and it was hurting again.
In order to determine whether Employer A or Employer B was the accident employer of record, WCB staff representatives contacted both employers to verify the worker’s work activities on August 11 and his reporting of an accident. They also spoke with the co-workers who allegedly saw or knew details about the worker's injury.
On September 9, 2009, a WCB case management supervisor determined that Employer A was the accident employer responsible for the costs of the claim based on the following rationale:
“The evidence confirms the worker suffered an injury to his shoulder during the course of employment on August 11, 2009 (Employer A) which was reported to a co-worker. He finishes his shift and was still in pain. When he went into work on August 12, 2009 he was still having pain in his shoulder and was planning on securing an appointment with a medical provider. We have continuity in terms of complaints leading up to the event that occurred sometime between 4:00 pm and 6:00 pm. The worker was carrying a chair when his co-worker accidentally bumped him causing him to drop the chair and grab his shoulder. He was able to complete the balance of his shift and attended for treatment the next day.
The history of injury provided to the treating medical provider “Was lifting and turning windows, felt pain left shoulder – worse next day when loading furniture into truck.”
The diagnosis is a soft tissue strain.
The employer of record should be (Employer A).”
The claim for compensation was accepted and wage loss benefits were paid to the worker commencing August 12, 2009 to September 11, 2009.
On September 11, 2009, Employer A appealed the WCB’s decision to accept the worker’s claim for compensation and for the payment of wage loss benefits. The employer outlined the position that the worker did not confirm any incident to his immediate group manager or to the warehouse person and neither were aware of any apparent incident happening on August 12. The worker claimed that his injury occurred on August 12 but nothing was reported nor did he miss time from work. The worker called on August 13 and requested to use an unpaid excused 8 hour block of time for that day. Nothing was mentioned about an injury. On August 14, the worker told his manager that he was injured on August 12 at his other place of employment.
On November 9, 2009, Review Office confirmed that the claim for compensation was acceptable and that there was entitlement to wage loss benefits. Review Office placed weight to the following evidence in making its decision:
· a co-worker confirmed that the worker injured his left shoulder on August 11, 2009 while lifting a window;
· a co-worker confirmed that the worker made complaints of a sore shoulder prior to the second workplace accident.
· the worker reported that his left shoulder was sore prior to the start of his shift on August 12, 2009. A co-worker confirmed that the worker made complaints of a sore shoulder prior to the second workplace incident.
· the worker reported that the pain in his left shoulder increased following an accident on August 12, 2009 while working for a second employer;
· the accident description to the chiropractor was consistent with what the worker reported to the WCB.
Review Office did not find that the second incident was the sole cause of the worker’s condition or his loss of earning capacity. The second incident occurred with the worker having a shoulder at risk as a result of his compensable injury on August 11, 2009. On November 19, 2009, Employer A appealed Review Office’s decision to the Appeal Commission and a hearing was held on June 15, 2010. The hearing was adjourned and subsequently reconvened on September 15, 2010 with the participation of Employer B.
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. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
The issues being appealed in this case do not concern whether or not a worker suffered an injury at work. It is acknowledged by all parties that the worker did sustain an injury to his shoulder while in the course of his employment. The issues specifically focus on where that injury occurred. The worker maintains two full time employment positions and an incident occurred at each employer. The question the panel must determine is which incident caused the worker’s shoulder injury for which compensation benefits are then payable.
Employer A's position:
Employer A's safety facilitator and reliability manager were present at the hearing. They advised that Employer A was appealing the decision that the initial incident occurred at their facility. It was submitted that the worker's shoulder may have been sore from flipping a window on August 11, but the primary incident was the second incident that occurred with the recliner (while working for Employer B) and caused the worker to fall to the ground. The worker continued to work in his normal manner throughout August 11 and 12 without reporting anything. It was also noted that had the worker reported that an accident occurred while working for Employer A, they have a very successful return to work program for all employees who are injured in their workplace. Had the incident been reported, Employer A would have had a position immediately available that would have been within restrictions outlined by the worker's doctor or WCB.
Employer B's position:
A human resources manager was present at the hearing on behalf of Employer B. She acknowledged that the worker hurt his shoulder during his shift for Employer B and indicated that was why they filled out a WCB claim form. She could not say whether or not the worker's injury was linked to something the worker did while working for Employer A, but she did believe he suffered an injury while working for Employer B.
The worker’s position:
The worker appeared at the hearing. The worker did not take a position on the issues being appealed, but was present to provide evidence regarding the events in question.
Analysis:
In order for there to be an acceptable claim against an employer, there must be a finding that the worker was injured in an accident arising out of and in the course of work. The panel is able to find on a balance of probabilities that the worker was injured in an accident that arose out of and in the course of his employment for Employer A. The panel also finds that the worker was injured in a second accident that arose out of and in the course of his employment for Employer B.
At the hearing, the worker's evidence was that at the time of his injury, his work hours were from 11:00 pm to 7:00 am for Employer A, then 1:00 pm to 9:00 pm for Employer B. On August 11, 2009, he had reported for work for Employer A and had been working for approximately one hour. He was lifting and turning over a 50 lb window with his co-worker when he felt something in his shoulder joint. The worker described the feeling as "not too much, just numb. It's not really bad (at) that time." He told his co-worker that he hurt his shoulder. Soon after the injury, the worker finished his work in this area and moved to another station where the duties were light and no heavy lifting was required. While he performed these lighter duties, the worker stated that he could feel the pain, but could still work. He thought the pain would not last long and he expected it to heal. He did not report the injury to his employer because he did not think it was too bad.
When he went home after his shift was over at 7:00 am, the worker relaxed and slept for a few hours. His recollection was that he had mild pain in his shoulder at the time. He did not take any medication or apply ice or heat. When he woke up for his shift at Employer B, he decided to work because he did not have much pain at that time.
The worker reported to Employer B at 1:00 p.m. and for the first three hours of his shift, he drove to various locations throughout the city to make collections. This work required him to lift garbage-sized bags of clothing and small items and place them in bins inside a cube van. The worker stated that while he did this work, he could feel pain in his shoulder joint. At 4:00 pm, the worker's duties changed and he proceeded to do pick-ups of furniture from residences. At some time during the second part of his shift (between 4:00 pm and 7:20 p.m.), the worker was carrying a recliner which weighed approximately 20 kilograms. He had hoisted the chair above his head and was carrying it upside down, with the seat portion of the chair balanced on his head and the top of the chair back resting on his left shoulder. He had walked from the house to the truck, when his co-worker accidently bumped him. The bump caused the worker to fall forward and his knee went to the ground, all while still balancing the recliner above his head. The worker then felt a distinct worsening of the pain in his shoulder. On a scale of one to ten, the worker described the pain in his shoulder after the first accident to be four to five. After the second incident, he felt it increased to seven to eight. The worker managed to complete the shift, but allowed his co-worker to do most of the lifting. The worker called his director on the phone to advise that he had hurt himself and that he would be seeing a doctor the following day. The panel asked the worker when he first decided that he needed to see a doctor. The worker's response was that it was only after the second incident. He further advised that he did not consider going to a doctor before the second incident.
After considering the evidence contained in the WCB file and the oral evidence given at the hearing, the panel makes the following findings:
· The worker suffered an accident while working for Employer A on August 11, 2009. As a result of the accident, the worker suffered a minor injury to his left shoulder.
· The minor injury arising out of the employment with Employer A did not cause a loss of earning capacity, nor did it require the worker to seek medical aid. It is notable that the worker was able to complete his regular shift with Employer A (albeit in lighter duties) and then report for work and perform the majority of his shift with Employer B, which involved considerably more physical work. Based on this demonstrated ability, the panel finds that there was no loss of earning capacity resulting from the first accident.
· The worker suffered a second accident while working for Employer B on August 12, 2009. As a result of the second accident, the worker suffered a more significant injury to his left shoulder.
· The worker's loss of earning capacity and the need for medical aid did not commence until after the second accident.
As a result of the foregoing, the panel finds on a balance of probabilities that there is an acceptable claim against both Employer A and Employer B. The panel further finds that the worker is not entitled to wage loss benefits due to the workplace accident with Employer A. Employer A's appeal is allowed in part.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 2nd day of November, 2010