The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he did not sustain a work-related accident on January 4, 2014. A hearing was held on September 23, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 16, 2014, the worker filed a claim with the WCB for a neck and back injury that occurred at work on January 4, 2014. He stated: "I was told to push cars out of the lot and also one person was covered with snow and he didn't realize I was in the car and he rear ended me. I had a sore neck and back." The worker reported that he attended for medical treatment on January 14, 2014 and that his doctor took him off work. He was referred to a physiotherapist and was prescribed medication. The worker noted that his normal job was to sell vehicles but on the day of accident, he was taken out of the sales position to work in the car lot.

The Employer Injury Report dated January 20, 2014 indicated that the worker did not report an injury on January 4, 2014. The worker came to work on January 8, 2014 and said he had a sore shoulder and was going to see a doctor later that day.

On January 8, 2014, the treating physician reported that the worker hurt his neck and left shoulder. The diagnosis was neck sprain and left rotator cuff sprain.

The Physiotherapy Initial Assessment form dated January 21, 2014 noted that "co-worker back into front of car he was driving." The worker complained of left sided low back, mid back and neck pain. The diagnosis was lumbar and cervical sprain/strain.

On January 23, 2014, the worker advised a WCB adjudicator that on January 4, 2014, he went to work around 9:00 a.m. By 11:00 a.m. they needed him and some others to push cars out of the snow. That day he pushed out about 20 to 25 cars. Around 2:00 p.m. a co-worker was backing up a car and there was snow on the back window. The worker said he was jolted and felt some shock. He was not knocked down. There were two witnesses who saw him get hit, a co-worker and the owner. The worker indicated that around 5:00 p.m. that day, he mentioned that he had a sore back and neck to two of his co-workers. January 5, 2014, it was his day off so he self-treated by icing the affected area and rested. He went to work on January 6 and commented to the manager and two co-workers about having a sore back. The worker indicated that he had another day off on January 7 and that things slowly got worse. He talked to his employer on January 8 to say he was too sore to work. The worker denied any other incident to make his condition worse.

File records showed that a WCB adjudicator contacted the employer and the witnesses identified by the worker and their information was as follows:

· Sales Manager - It was very cold that day and they were asked to clean snow off of cars. They were not required to push cars out of the snow from being stuck. The worker may have made a claim with the WCB as he was written up for not performing due to a lack of sales shortly before his claim was created. On January 8, the worker came in and complained about his shoulder and there was no mention of a back injury. He was not aware of the incident regarding a co-worker backing into the worker.

· Sales Consultant - he remembered calling the worker the first day he missed time from work. The worker told him his back was sore. He remembered that they were moving cars and brushing windows. He was not sure if the worker had to move vehicles as he was at the opposite end of the lot.

· Co-worker: The first time he heard of the worker having an injury was on the first day he missed time from work. The worker told him he had a sore back and he never asked him how he was injured and the worker never offered. He did not see the worker getting hit by a vehicle. If the vehicle even just bumped the worker, he did not see it. He confirmed that they had to push vehicles out of the snow. He guessed that it was less than 20 vehicles. Everyone was pushing them out. He said the worker did not mention having a sore back that day. He only found out about a sore back when the worker started to miss time from work.

On January 28, 2014, the WCB adjudicator contacted the worker for additional information. The adjudicator asked the worker if when he was hit, he was pushing a vehicle or in the vehicle. The worker said he was in the vehicle. The worker was asked whether there was anyone else who could confirm the complaints he made. The worker said he did not know of anyone else who knew of his symptoms.

On January 31, 2014, the worker spoke with the WCB adjudicator's supervisor. The worker stated that he did not tell the adjudicator that he was pushing the car when it was struck by the other vehicle. He said he was in the vehicle, he got the vehicle unstuck and was moving it to another spot. The worker said he was in the vehicle when the co-worker backed into him. The vehicle did not hit him directly and he was not pushing the car at the time. He said the general manager and another co-worker took a look at the vehicles and there was no damage to the vehicles. He did not get out of the vehicle. The worker stated that prior to the collision his shoulder and back were sore from pushing the cars out and after the hit there was more pain. The worker indicated he was pushing and moving cars for about 2 to 2.5 hours. Shortly after the accident, he spent the remainder of the day working inside the building. He told his manager that he was not feeling well and he was going to work inside. The manager did not ask him what was wrong. He did not volunteer the information because the manager looked busy.

On February 6, 2014, the WCB adjudication supervisor spoke with the worker's co-worker. The co-worker confirmed that the owner's cousin backed a vehicle up that struck a car. He could not recall who was in the driver seat of the car that was struck. He confirmed there was no damage to either car. He could not recall if the general manager was there. On the date of accident, there were 15 people moving cars that were stuck in the snow. Roughly 20 cars or less were moved that day. The cars were pushed by 2 to 4 people.

On February 6, 2014, the adjudication supervisor called the general manager. The general manager denied being aware of the accident described by the worker. It was very cold that day so if one car bumped into another and there was no damage to either car, it could not be more than a slight touch. Everyone was helping that day. The worker did not have a toque or gloves and only had on shoes. The worker had been given his second warning for not meeting the sales expectation of selling 5 cars a month on January 2, 2014. Two days later he filed a claim.

The WCB adjudication supervisor called the sales manager on February 6, 2014. The sales manager said the worker was asked to help clean and move cars, however, the worker was only outside for about 30 minutes. The rest of the time he was inside. The sales manager denied that the worker told him he was not feeling well on January 4. The first time he heard about the worker's shoulder difficulties was 2 or 3 days later.

On February 12, 2014, the worker was advised that the WCB was unable to accept responsibility for his left shoulder and low back difficulties. The adjudication supervisor noted that the worker provided information that his left shoulder became sore on January 4 from pushing multiple vehicles that were stuck in the snow. In addition, while behind the wheel of a vehicle it was hit by another vehicle driven by a co-worker. The supervisor indicated that several co-workers were contacted and the WCB was unable to confirm that anyone of them were aware of the worker's difficulties on January 6. The medical report of January 8 did not list a mechanism of injury and when seen by two different physiotherapists, the description of accident was different each time.

The adjudication supervisor concluded that based on the inconsistencies in giving the medical providers an accident history, the number of cars he pushed, the minor collision of the vehicles and the delay in reporting a workplace injury to the employer, the WCB was unable to confirm an injury arising out of his employment on January 4, 2014.

On March 19, 2014, the worker appealed the decision to deny his claim to Review Office. The employer provided Review Office with a submission dated May 7, 2014 and a further submission was received from the worker dated May 19, 2014.

On May 29, 2014, Review Office confirmed that the worker's claim for compensation was not acceptable as it was unable to find that the worker suffered an accident on January 4, 2014. Review Office based its decision on its review of evidence from the worker's manager and co-workers as well as file evidence from the worker's treatment providers.

On June 17, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The worker’s position:

The worker was self-represented at the appeal. The worker's Appeal of Claims Decision form submitted that: "The accident did occur whether they claim no damage to the vehicles. I was pushing vehicles that day. Medication was prescribed and employer requested for doctor's certificate."

At the hearing, the worker stated that his job title was a salesperson and his duties involved greeting customers and helping them find the right vehicle. Sometimes the sales manager would give the salespeople other duties. During the week in question, there was a heavy snowstorm so there was a lot of snow piled up on the vehicles. On the day of the accident, all the salespeople were asked to go outside to move cars so that the snow removal company could clear the lot. The worker went out and helped to move the vehicles, which involved brushing snow off vehicles and driving them, and in some cases he had to physically push the smaller cars out of the deep snow. When he was seated in the driver's seat of a car, the vehicle directly in front of him went into reverse and backed into the vehicle he was in. The worker continued to work after this incident, but he started to feel unwell and told his manager that he felt that the job was too excessive for him. His back and neck were beginning to hurt and so he went back inside the dealership.

The worker advised that he went to see his doctor and explained that he had been outside pushing cars, that a car had backed into his and that he was feeling pain in his back. The worker was prescribed a muscle relaxant and an anti-inflammatory and was given a doctor's certificate to be off work. The worker noted that he had previously been in a very serious car accident in August 2012 where his vehicle had been written off. As a result of that collision the worker suffered a concussion and injury to his back and shoulders. At the time of the workplace incident, he continued to experience headaches and anxiety for which he took antidepressant medication.

The worker felt that there had been a lot of discrepancies in the way his file had been handled by the WCB. He also felt that his employer was not being truthful in the way they reported the events. Reference was made to involvement with Manitoba Employment Standards to support that the employer lacked credibility. The worker also questioned some deductions which were taken off his last pay cheque.

Analysis:

The issue before the panel is claim acceptability. For the worker’s appeal to be successful, we must find, on a balance of probabilities, that the worker's mechanical neck and left shoulder/back sprain arose out of the performance of his work duties during the course of his employment on January 4, 2014. We are able to make that finding.

It is clear from the evidence that the relationship between the worker and the employer was not good and there were contradictory statements on file. It would appear that at the time of the accident, the worker was under pressure to improve his work performance. The panel also notes that the worker's evidence was sometimes difficult to discern and certain details regarding the timing of events were not always entirely consistent. Nevertheless, the panel finds that there was sufficient mutually confirmed information on file to satisfy us on a balance of probabilities that the worker suffered an injury by accident at work on January 4, 2014. In particular, the panel notes the following:

• Regarding mechanism of injury, there is no dispute that on the day in question, the worker was engaged in physical activities which were sometimes strenuous and were outside of his normal duties. It was early January and very cold outside so it is plausible that the unusual duties may have had a negative effect on the worker.
• With respect to the incident where another staff person backed a car into the worker's vehicle, the panel accepts that this could result in injury to the worker, particularly given that he had previously been involved in a serious car accident and still suffered some lingering effects from that accident.
• The fact of the collision was confirmed by a co-worker.
• Although the worker did not go to a doctor until January 8, 2014, the panel accepts the worker's evidence that he called to make an appointment on January 6, 2014 and the first available slot was on January 8, 2014.
• Although the doctor's first report does not provide a description of the incident, a WCB form was nevertheless completed on that date. The reports from the physiotherapists dated January 21, 2014 and January 29, 2014 both show a history of a work-related injury. One refers to the back-up collision and the other refers to the pushing of cars. The panel accepts that both of these mechanisms of injury contributed to the worker's diagnosis of a neck and left shoulder/back sprain/strain.

Overall, while there were discrepancies on file and a dispute between the worker and the employer as to the reporting of the incident, the panel finds that the confirmation of the strenuous duties and the collision on January 4, 2014 combined with the seeking of medical attention within a reasonable time are sufficient to establish that the worker suffered injury by accident at work. We therefore find that the claim is acceptable. The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of November, 2014