Decision #180/11 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he did not have an accident as defined in The Workers Compensation Act (the "Act") on January 20, 2011. A hearing was held on November 21, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On February 14, 2011, the worker filed a claim with the WCB for injuries to his back, neck and left hand which he related to an assault that took place at work on January 20, 2011. The worker reported that he was struck in the back of the head with something by a co-worker while his back was turned. The co-worker then picked him up and threw him twice into a pile of scrap metal which impaled him. He was assaulted by the co-worker twice after that and the co-worker threatened his life.
The employer submitted to the WCB via their Employer Injury Report that they knew nothing about an accident occurring on January 20, 2011. As of February 7, 2011, the worker was no longer in their employ.
Medical information showed that the worker attended a chiropractor on January 24, 2011 but the chiropractor wanted to talk to the worker first before sending in a report to the WCB. On February 28, 2011, the chiropractor reported that the worker was treated for an L5-S1 disc herniation which the worker attributed to being thrown into a steel bucket by a co-worker.
The worker was seen at a hospital facility on February 1, 2011 for injuries caused by an assault.
On February 15, 2011, a WCB case manager spoke with the employer who advised that he knew of a fight between the worker and another co-worker ("D"). He noted that the worker called him on January 20, 2011 and after the call ended, he realized that he had not hung up the phone. He heard the worker and D yelling at each other. The employer then hung up his phone and called another worker ("A") who was nearby to go make sure nothing had happened. The worker then attacked A, and A said there was no assault between the worker and D. They were arguing about which trailer needed to go to a job. The employer indicated that the worker called him that night and said he had been assaulted by D who threw him down and was impaled on a piece of metal. The employer did not know that the worker was filing a claim. The worker was "let go" on February 7, 2011 because of carelessness.
On February 15, 2011, the worker advised the case manager that he reported the incident to his employer and his foreman/supervisor. The worker indicated that he went to the hospital the following day as he was told that he could not leave the shop or else he would be fired. The worker indicated that a metal rod and metal impaled him. He did not file a police report as he needed to continue working. The worker said he had a sore back from the assault and a scar on his hand.
The case manager spoke with the worker again on February 23, 2011. The worker indicated that on the day of the accident, he came to the shop to do a trailer switch. He went to get a part at the back of the shop. D approached him using profanity and was yelling at him. He turned away from the table and then D struck him in the back of his head with something. D was not yet working or on his shift. D then picked him up and threw him into a pile of scrap metal and he landed on his back in a pile of metal parts and rods. He got up and D again threw him into the pile. At this point A came into the shop to help him.
The case manager spoke with A who said he could hear the worker yelling at D in the shop. He went to the shop and worker was pointing his finger at D at about his chest level. At that point, D shoved the worker into a pile of 4 big tires near a cabinet. This was the only violence. A then broke up the fight and the worker was putting his finger in A's face yelling at him. A said he then decided to defuse the situation and try to separate and calm them down. D went back to his truck to continue cleaning it out and the worker headed outside to his truck. A left the premises and did not know if anything else happened. He stated the worker did not physically attack anyone. About a week before, A saw the worker limping. He asked the worker what was wrong and the worker said it was from an old injury and his hip was bothering him. He never discussed it again with the worker.
On March 4, 2011, the worker was advised that his claim for compensation was accepted for a soft tissue injury to his back but the WCB was not accepting a hand or other injury until further medical information was obtained.
On March 10, 2011, the case manager informed the worker that the WCB was accepting his claim for a diagnosis of an L5-S1 lesion only and that he was unable to establish a relationship between the worker's hand injury and internal diagnosis to an accident that arose out of or in the course of his employment. On March 25, 2011, the worker appealed the decision to Review Office.
On April 4, 2011, Review Office referred the worker's file back to primary adjudication as it was felt that further investigation of the claim was warranted in regard to the description of events that occurred on January 20, 2011.
After gathering additional information from the worker, the employer and the two witnesses, a decision was issued to the worker dated May 13, 2011, indicating that the WCB was unable to establish that he suffered an injury by accident arising out of and in the course of his employment. The WCB determined the worker engaged in a fight with a co-worker over a personal matter.
The case was then considered by Review Office based on an appeal from the worker dated May 25, 2011 and June 30, 2011. On July 12, 2011, Review Office determined that the claim for compensation was not acceptable as it found that the evidence on file supported that the worker was involved in a personal fight with a co-worker on January 20, 2011. On August 25, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
Worker's Position
The worker attended the hearing and provided his reasons for filing the appeal.
The worker advised that he is a truck driver and had worked for the accident employer for approximately 3 years. He drove both long and short haul.
On the night of the incident the worker said that he left the workplace but had to return to switch trailers. He entered the garage and decided to cut cardboard for his tractor. While sitting at the driver's table, a co-worker ("D") approached him and another co-worker. The co-worker was "…freaking out over, over nothing, and then he starts coming and yelling at me and [another co-worker] about drugs and beer and we just ignored him, and then he asked me did you do it, and I said, You know I don’t do it and I don’t drink beer."
The worker said that he ignored D but that the next thing he knew he was "up and over". He said "There’s a pile of sheet metal which is old fenders, stainless steel fenders, pipes, bars and buckets, a whole, you know, five feet by five feet pile of sheet metal he threw me onto, back first, and I tried getting up and then he threw me back onto it again." The worker said he got up onto his knees and the co-worker grabbed him by the throat and threw him up against the fridge on the side of his head and the side of his ear causing him to lose his hearing.
The worker said that the other co-worker ("A") pulled D off him. He then ran to his truck where he was assaulted again by D.
The worker was asked how long the incident took from the first time he was grabbed… He replied "Inside there, I don’t know, a minute and a half – two minutes."
The worker said that he called his boss to report the incident and advise him that he was injured but the boss told him to go back to work. He said his boss called him later that night and told him not to make a WCB claim.
The worker provided details of his injuries and the medical treatment he received.
Regarding his hearing loss, he said that it affects both ears and that it was caused by the trauma of having his head and ear smashed against the refrigerator. In answer to a question the worker said that he had headaches after the assault.
When asked why there is no mention of the headaches or hearing loss in the emergency department report, he advised that the ringing wasn't as strong but that he knows he mentioned it.
The worker said that the statements of the co-worker ("D") and witness ("A") were prepared in the employer's office. The worker said he disputes the statement given by the witness including his statement there was only one incident and that he was pushed against a pile of tires.
Employer's Position
The employer did not attend the hearing or participate in the appeal.
Analysis
The worker is appealing the WCB decision that his clam is not acceptable. For the worker's appeal to be successful, the panel must find that the worker sustained an injury by accident that arose out of and in the course of his employment. We were not able to make this finding.
We find that the evidence establishes that the worker was involved in a personal dispute with a co-worker while in the workplace and as a result the worker had removed himself from his employment and the provisions of the Act. The evidence shows that the dispute was related to the ownership of liquor left at the workplace. As the worker was involved in a personal dispute, it cannot be said that he was injured by an accident that arose out of and in the course of his employment, even though it occurred in the workplace.
In reaching our decision we have given more weight to the evidence provided closest to the date of the incident than evidence provided long after the incident. We have found that the worker has provided different versions or accounts of the events and injuries at different times. For example, at the hearing he told the panel that the alleged assailant banged his head and ear into a fridge which led to his current hearing loss. We note there was no mention of such an incident in his report of injury or discussions with the WCB. We also note that he reported to a physiotherapist that he was hit on the neck and back with a pipe. The physiotherapist notes significant loss of hearing, just about gone, worse since January 20 incident.
In assessing the evidence, we find the evidence of the both the co-worker ("D") and witness ("A") to be more consistent than that of the worker. The co-worker and witness's accounts of the incident were provided on three occasions and were consistent on each occasion. We place significant weight on the evidence of the witness to the altercation. According to his evidence, he entered the shop and overheard the worker yelling at the co-worker, he observed him pointing his finger in the co-worker's face in a threatening manner and then saw the co-worker push the worker away from him into a pile of tires. The witness said he attempted to defuse the situation and separate the worker and co-worker. He said that the worker then became angry with him. The witness states he did not see any other incident.
The panel finds on a balance of probabilities that the worker was not injured in an accident arising out of and in the course of his employment and that his claim is not acceptable. His appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of December, 2011