Decision #114/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Review Office of the Workers Compensation Board ("WCB") which determined that an injury arising out of and in the course of his employment could not be established. A hearing was held on July 10, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 4, 2011, the worker filed a claim with the WCB for a right leg injury which he claimed occurred at work on June 22, 2011. The worker's incident report stated: "I was in a hole putting in pipes and my co-worker was operating a heavy duty machine. He didn't see me and ran the machine over my leg squishing it."

The employer's accident report dated July 12, 2011 indicated that the worker did not report an accident and that he quit his job on June 28, 2011.

On July 14, 2011, a WCB adjudicator called the worker to gather additional information. He spoke to the worker through the worker's son who acted as a translator. The worker advised that he reported the injury to his supervisor shortly after the accident. The operator of the backhoe that hit him was the witness but he did not know his name. On June 22, 2011 at approximately 1 to 1:30 p.m., the worker was in an excavated hole when he was struck by the bucket of the backhoe. His right leg was pinned against the hole. He continued working his regular duties but made ongoing complaints. He showed his leg injury to his boss and to co-workers. He said his boss told him to continue working his regular duties as he was not concerned about the injury. The worker indicated that he quit because he could not work any further. He treated his injury with ice, heat and cold gel. His leg continued to swell and the pain increased. He sought treatment on July 3, 2011. The worker's son advised the adjudicator that his father was an old-school worker and he would not complain and was very stubborn. He was the one who made him go to the hospital.

The accident employer's general manager stated on July 14, 2011 that he spoke with the worker's foreman and no injury at any time was reported by the worker.

On July 14, 2011, the adjudicator spoke with the worker's superintendent. He reported that the worker was the charge hand for the crew. On June 22, 2011, there were no reports of an injury on that day or afterwards. He noted the worker had poor attendance. He worked June 22. On June 23, there was no phone call from the worker. He then worked June 24, 27, 28 and on June 29 he showed up late. The job was shut down because the worker had the tools they needed for the job in his truck. The worker stated that everybody is late and then he threw his keys on the truck and quit. The worker had been employed with the company for 4 to 5 years.

On July 27, 2011, the adjudicator spoke with the backhoe operator and was told that the worker was not pinned against the wall by the bucket at any time. He said the worker was in the hole performing his duties and nothing was said about an injury.

A hospital emergency report dated July 3, 2011 stated: "51 yr old construction worker on Wednesday, June 29 - a backhoe hit pt's right leg at the knee. Local pain/swelling/large bruise - mostly resolved - still a large tender mass, local redness. Pt. kept working. - Much swelling of whole lower leg."

The hospital triage report of July 3, 2011 stated: "Patient works heavy construction and was in a hole where a large post was to be placed. He was then hit on the right leg below the knee with the front end loader. Patient was then forced to go back to work and is now having…pain and swelling just below the knee on the right side. Patient is able to work, but states that it is very painful."

In a decision dated August 8, 2011, the worker was informed that his claim for a right leg injury occurring on June 22, 2011 was denied by the WCB as the WCB was unable to establish a work related injury. As a basis for his decision, the adjudicator stated that he was unable to confirm that the worker reported an injury to his employer and co-worker; the worker completed his regular duties without complaint to June 28, 2011; and he delayed in seeking medical attention until July 3, 2011.

On August 8, 2011, the worker's son advised the WCB that he spoke with the backhoe operator and he confirmed that the worker was struck with a backhoe on June 22, 2011.

On August 31, 2011, the worker appealed the WCB's decision to deny his claim. The worker submitted that he injured his leg on June 22, 2011 and that he reported the injury to his supervisor. He said there were 3 witnesses and he showed his supervisor his leg injury.

On October 13, 2011, Review Office confirmed that the claim was not acceptable. Review Office indicated that it was unable to reach a conclusion that the worker incurred a right leg injury arising out of and in the course of his employment. Neither the supervisor nor the backhoe operator confirmed the worker's version of events and they were not aware of the alleged leg injury. Review Office noted that the medical reports on file outlined two different accident dates. One was June 22, 2011 and the other was June 29, 2011. The worker did not seek medical attention until five days after he quit work and yet indicated that he stopped working on June 28 as the pain was too severe. On November 30, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on July 10, 2012.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information from the worker's treating physician as well as information from the employer pertaining to Record of Employment, time cards, etc. On August 22, 2012, all interested parties were provided with copies of the information obtained by the panel for comment. On September 7, 2012, the panel met further to discuss the case and render its final decision on the issue under appeal.

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. 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 worker’s position:

The worker was assisted by his son and an advocate at the hearing. It was submitted that an accident definitely occurred. The worker went to the hospital and also went to see his family doctor for medical treatment. There were witnesses to the accident, but unfortunately they were not able to come to the hearing. The whole situation had been very hard on the worker and even though the accident occurred over a year ago, he was still suffering from the pain and had not been able to work since.

The employer’s position:

The general manager from the employer appeared at the hearing. The employer was opposed to the appeal as they did not believe that any accident or injury occurred while the worker was employed with them. It was noted that the worker first alleged that he was injured at work on June 22, 2011, but this was never reported to anyone and the worker continued to work his regular duties until June 28, 2011. The worker's timecard indicated he was not even at work on June 22. His last day of work for the employer was on June 28, 2011 when he worked his regular duties and made no mention of an injury to anyone. On June 29, 2011, the worker was unable to work as he did not have his required tools, and then he quit his job later that day. The WCB claim for injury was only made after he left their employ. It was also noted that the worker did not seek medical attention until July 3, 2011. It was submitted that as of the date when the worker quit his job, he was fully capable of physically performing his regular job duties. It was not known what his activities were between June 28 and July 3, 2011 and he could have injured himself outside of work. There was no evidence to link the worker's knee condition to his work for the employer, and it was submitted that the WCB's decision should not be overturned.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to his right leg arising out of and in the course of his employment in June 2011. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker described the incident which occurred while working at a particular jobsite in June 2011. He was working in a trench which he estimated was about 22 feet deep and 10 to 11 feet wide. A pipe had burst so the hole had water in it and some of the mud on the sides was caving in. The worker was trying to get behind the bucket of the back hoe when the bucket closed and pinned his leg. The contact was between a middle tooth on the bucket and the inside part of the worker's right knee. The worker screamed and made a hand signal for the back hoe operator to open the bucket. After he was released, the worker fell down and he couldn't walk. He lay on the ground for 4 to 5 minutes. A co-worker "D" then dropped a ladder so the worker could get out of the hole. When he got to the top, he pulled his pants down and showed his supervisor his knee. It was bruised and swollen. The worker's evidence was that the supervisor told him it was nothing and not to worry about it. The back hoe operator and the co-worker "D" were present. Another co-worker "T" came later. Subsequently, the worker went back down into the hole and continued to work the remainder of his shift (approximately 3 ½ hours).

The next day, the worker came to work and he was swollen from the waist down. There was an approximately four inch scratch in the skin, but with no bleeding.

At the hearing, when asked about the specific day of the accident, the worker could not recall the exact date. He believed that it was 6 or 7 days before he went to the hospital. Initially, the worker and his son thought that he went to the hospital on the day that his job ended, but upon reflection, the worker acknowledged that it may have been a few days later.

The worker's supervisor was subpoenaed by the panel to appear as a witness at the hearing. His evidence was that the mechanism of injury described by the worker was hard to visualize. He questioned how the worker could have had one leg pinned in the confined space of the trench. The supervisor's evidence was that the trench was constructed according to scaled drawings and the maximum width of the trench was 5 feet, as this was the width of the cage, or shoring box. The depth was 9 feet at the high point to 11 feet deep at the lowest point on the line. The length of the trench was 10 ½ to 11 feet. The supervisor said that the only time they would be working with a deep trench that was 10 to 11 feet wide (as described by the worker) would be in an open cut field. At the time in question, they were not working on any such projects. They were doing house services at condos in the city. With respect to report of injury, he did not recall the worker ever reporting an accident to him nor showing him an injury on his right knee or leg.

In order to find for the worker, the panel must be satisfied on a balance of probabilities that the worker was injured by an accident arising out of and in the course of his employment. Unfortunately, there are inconsistencies in the evidence which cause us to question whether an accident could have occurred in the manner described by the worker. Specifically, the panel notes the following:

  • At the hearing and when filing a WCB claim, the worker gave the date of accident as being June 22, 2011. According to the timecards, however, the worker and his crew did not work for the employer on June 22, 2011.
  • The July 3, 2011 hospital records report an accident date of Wednesday, June 29.
  • The worker described a four inch scratch on his shin and said that by the next day, his leg was swollen from the waist down. His evidence was that he continued to work for 6 to 7 days following the injury. The panel finds it unusual that the worker would be able to perform all of his regular job duties which involved physical work and climbing down ladders into trenches. According to the timecards, he also worked long hours on June 23, 24, 27 and 28, ranging from 9 to 13 ½ hours per day. It seems inconsistent for the worker to have suffered such a significant injury, yet still be able to perform his regular job duties.
  • The worker's allegations that he told people about his injury cannot be confirmed by any other witnesses. The supervisor outright denied that the worker ever informed him of an injury. The back hoe operator had been interviewed by the WCB but he denied any knowledge. When the matter came to hearing, the worker disclosed the names of two additional co-workers (D and T) who were said to have knowledge. These individuals had not been previously identified. The worker made attempts to have the witnesses come to hearing, but was unsuccessful. The panel therefore did not have the benefit of their evidence.
  • The panel accepts the evidence of the supervisor regarding the dimensions of the trench. His version is credible as it was based on the scaled drawings and he was able to correlate the size of the trench with the location of the jobsites to which the worker was assigned in the last two weeks of June 2011. The panel finds that the mechanism of injury described by the worker is difficult to imagine given the limited space in the trench and the location of the trauma at the medial or inside aspect of the right knee. The panel also finds it difficult to imagine how the worker could have lain on the ground for 4 to 5 minutes, then climbed up a 22 foot ladder to get to out of the trench.
  • The daily field data collection sheets completed by the supervisor recorded an event similar to that described by the worker, namely, a broken water main and silty ground conditions. This event, however, occurred on June 28, 2011. This date would be inconsistent with the worker's evidence that he worked for 6 to 7 days following the injury, since the worker's employment ended on June 29, 2011.

Overall, the panel found that there were too many inconsistencies in the story such that we are not satisfied on a balance of probabilities that an accident causing injury to the right leg occurred at work as described by the worker. We are therefore unable to find that the worker's claim is acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 30th day of October, 2012

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