The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The issue being appealed is whether or not the worker’s claim is acceptable. 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.

The issue for the panel in this case concerns whether or not an accident giving rise to benefits occurred on April 29, 2010.

The employer’s position:

The owner/employer appeared at the hearing and gave evidence as to the matters in issue. The employer said that he operated a small business which normally had a staff of four people on duty at a time. The worker advised the employer that she had a previous back injury from a different job and therefore she was told to leave the garbage for other staff to take outside. Normally, the garbage is taken outside at the end of the day but on the day of the reported accident, the worker came on shift at seven a.m. then left by eight a.m. She did not advise the employer what happened, or why she left, but at approximately eleven o'clock or noon, the worker's daughter came to work and advised that the worker would not be working for the next couple of days as she had a headache. The employer's evidence was that he had no idea that the worker had an injury from swinging the garbage bag until he was contacted by the WCB and told that he would have to pay for benefits for her.

The employer submitted that he has had previous employees cut or burn themselves at work and a WCB claim has been filed right away. In this case, the employer said he would have done the same thing, however the worker did not notify him of anything. In the circumstances, the employer did not think that the worker's claim should have been approved. Further, the employer questioned why the worker would have had to swing a bag, as the garbage area was at ground level, and stated that she was not, in any event, authorized to take garbage out as it was not supposed to be part of her duties.

The worker’s position:

The worker did not attend the hearing.

Analysis:

The issue before the panel is whether or not the claim for benefits is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker did not suffer an accident arising out of and in the course of her employment on April 29, 2010. On a balance of probabilities, we are not able to make that finding.

While the panel is sympathetic to the challenges the employer faced with this employee, we find that the inconsistencies are not sufficient to convince us on a balance of probabilities to set aside the evidence that an incident causing injury to the worker took place on April 29, 2010.

In coming to our conclusion, the panel placed reliance on the following:

• The mechanism of injury of swinging a bag of garbage is consistent with suffering a strain to the right upper back region;
• There is evidence that on the date of the accident, the worker attended at the hospital for medical treatment of an upper back strain injury;
• The history of injury given by the worker at the hospital was consistent with the report of injury given by the worker to the WCB;
• At the hearing, the employer acknowledged that a co-worker (the dishwasher), confirmed to the employer that he drove the worker to the hospital on the day of the accident;
• Although the employer was unaware of the work-related nature of the injury on the date of the accident, the Employer Injury Report completed by the employer indicates that the injury was reported to him the next day on April 30, 2010.

At the hearing, the employer submitted that throwing out garbage was not one of the worker's authorized duties and therefore her claim ought not to be accepted. It is important to note that even if a worker is performing a task outside of his or her normal scope of duties, the worker is still entitled to WCB coverage if injured while performing the task, so long as the task arose out of and in the course of employment. There is no doubt that throwing out a bag of garbage for the employer meets this test. The panel therefore finds that there is sufficient evidence to satisfy us on a balance of probabilities that the worker suffered an injury while working for the employer on April 29, 2010. Her claim is acceptable and the employer’s appeal is dismissed.