The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB")that the worker's claim was acceptable in relation to the work events thatoccurred on December 9, 2011.  A hearing was held on April 21, 2015to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on February 20, 2014 regarding a work incident occurring on December 9, 2011. The worker reported that he had a previous herniated disc from 2005 and that he had just returned to work on December 9, 2011. On this date, he performed training exercises over a 5 to 6 hour period. The training involved jumping out a window 13 to 15 times and he had to jump out the window head first. There was harness wrapped around his legs and he had to jump out the window and flip himself upright to rapel down the building. The repeated exercise of being upside down and the harness being at his hips, etc. made his back sore. When he left the training on December 9, the worker reported that he did not feel right. He was off work for seven months and used his sick time. He did not report the incident as a WCB claim as his doctors wanted to check whether this was work-related or because he was sick. Another reason for not officially filing a claim was because of remarks made that he was faking a disc herniation.

The Employer's Report indicated that on December 9, 2011, the worker was participating in some training which involved jumping out a window head first and having a leg/waist harness to support his body until he became upright to rapel down a wall. During this time, the worker reported that he suffered a sprain/strain to his back, headaches, injury to both legs and reproductive organs.

On February 20, 2014, the employer's representative stated that he opposed the acceptance of the claim for a variety of reasons which included the delaying in establishing the claim. The representative noted that the worker received medical treatment for the alleged injuries from a chiropractor and a physician who were both seasoned veterans when it came to workers compensation reporting and yet no claim was established in 2011. It was noted that the worker had a significant WCB claim history and wondered why he did not report sooner if he truly had sustained an injury on December 9, 2011.

On February 21, 2014, a WCB case manager spoke with the worker to obtain additional information related to the events of December 9, the symptoms he experienced, and the medical treatment he received. With respect to why he did not contact the WCB after the December incident or why his doctors did not notify the WCB about an injury, the worker stated:

• he had a history of disputes with his employer and was scared to file a claim with WCB given his prior WCB claims.
• he felt he would be punished for filing a claim with the WCB.
• he was not sure if his injury/time loss was WCB related. After testing had been completed, he was told that his issues were related to a herniated disc.
• his injury was reported and well documented.

The WCB contacted a co-worker identified by the worker. The co-worker stated that the worker did not say anything about an injury after the training but on the way back to the station they attended a motor vehicle collision. After this incident, the worker stated he had discomfort in his back. The co-worker did not observe the worker to be in pain at the training session.

On April 16, 2014, the employer's representative provided the WCB with additional information to support that the worker failed to make a written report of the alleged incident until February 2014, notwithstanding the "date reported" on the employer's accident report.

The WCB obtained reports from the attending physician and treating chiropractor with respect to the worker's back complaints prior to and beyond December 9, 2011.

In a decision dated May 1, 2014, the case manager advised that no responsibility would be accepted for the worker's claim as the WCB was unable to establish a relationship between his difficulties and a workplace accident. In support of his decision, the case manager stated:

"We have given special consideration to the medical findings during the approximate 3 week period you were away before returning to work on December 9th in order to establish a baseline of your physical condition. These findings indicate that you were cleared to return to full duties on December 9th, however they also indicate that during the time you were off before returning to work you would experience varying levels of symptoms including increases and decreases of difficulties. In addition WCB contacted your employer and obtained coworker statements to obtain information regarding the work events of December 9th. While we can confirm your work duties and that you did experience back difficulties at work on December 9th we have been unable to confirm a specific injury that occurred during the ...training or motor vehicle accident call that results in a workplace injury."

In August 2014, the worker provided the WCB with additional information to support that his lower back discomfort was related to the physical factors during his training on December 9, 2011.

On September 2, 2014, the WCB case manager advised the worker that no change would be made to his decision of May 1, 2014. The case manager stated: "While we can confirm your work duties and that you did experience back difficulties at work on December 9th we have been unable to confirm a specific injury that occurred during the ...training or motor vehicle accident call that resulted in a workplace injury. In addition based on the new medical information you've provided it is the opinion of Compensation Services that your current symptoms are related to your prior history of back difficulties and not the events of December 9th, 2011."

On October 23, 2014, the worker's legal representative provided a submission to the WCB to support the worker's claim. On October 27, 2014, it was determined by the WCB that the October 23, 2014 submission provided no new evidence to warrant a change to the original WCB decision.

On October 29, 2014, the worker's legal representative appealed the WCB adjudicative decisions to Review Office. On November 10, 2014, the employer's representative submitted to Review Office that the decisions of May 1, September 2 and October 27, 2014 should be upheld.

On January 5, 2015, Review Office determined that the worker's claim for compensation was acceptable. Review Office considered all file information and accepted the worker's explanation for his delay in filing a WCB claim. It found that the file evidence supported that an accident occurred within the meaning of the statutory definition under subsection 1(1) of the Act. The worker's training activity on December 9, 2011 resulted in an emergence of his back symptoms which he mentioned to his Captain that day. Review Office referred to the treating chiropractor's report of March 27, 2014 and his opinion that the worker "had aggravated his lumbar spine by the reported activities of jumping out of a window repetitively with full equipment." On January 6, 2015, the employer's representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations andthe policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under whichclaims for injuries can be accepted by the WCB, and state that the worker musthave suffered an injury by accident that arose out of and in the course ofemployment. Once such an injury has been established, the worker is entitled tothe benefits provided under the Act.

The employer is appealing the WCB Review Office decision that the worker'sclaim is acceptable. The key issue to be determined by the panel deals withwhether the worker suffered an injury by accident that arose out of and in thecourse of his employment.

Employer's Position

The employer was represented by its compensation coordinator who wasassisted by a deputy chief.

The employer representative submitted that the claim should not have beenaccepted.  In support of this position henoted:

·        the 3 persons identified by the worker to bewitnesses were present during the training but did not witness an accident. Twoof the witnesses said they were not aware of an injury and the third could onlyconfirm that after they left the training site and attended an auto accidentscene, the worker said he had "discomfort in his back."

·        the worker did not file a claim untilapproximately 26 months after the incident.

·        the worker has filed many claims and hispractice has been to file the claim immediately or within a day or twothereafter.

·        the day book at the workplace lists the workeras being off ill rather than injured on duty.

·        the worker's family physician and chiropractordid not submit reports to the WCB until requested to do so in 2014 even thoughboth were aware of the injury and their duty to file reports.

·        the worker indicated that during training he"felt some discomfort."

·        the worker's flare-up of testicular pain wassubsequently dealt with by a urologist who found the worker's signs andsymptoms to be "incongruent."

·        the medical report relied upon by the worker wasprovided 33 months post incident.

The employer representative noted that the worker had just returned to workafter 3 weeks on sick leave for back problems which had been considerednon-work related.  He submitted that themere suggestion of back discomfort does not establish a cause and effectrelationship between the discomfort and the training. 

The employer representative also submitted the worker's explanation for thedelay in filing a claim, specifically that he was scared to file due torepercussions by the employer and that his physicians needed to check out theinjury to confirm it was work related were not credible. 

The employer representative's written submission concluded that:

"What we have is a report from a medicaladvocate who suggests that following a brief examination on October 8, 2014 heconcluded that EXO training, performed 33 months prior, was capable of causing[the worker's] problem.  In addition, wehave [the worker's] health care providers claiming to have been aware of theaccident history shortly after the alleged incident but, by sheer coincidence,both did not submit reports to the Workers Compensation Board until requestedto do so in February 2014.  Bothpractitioners were most definitely aware, based on their many years inpractice, that if they truly were aware of the alleged incident back inDecember 2011 that reports would have to be sent to the WCB to support [theworker's] entitlement to total disability benefits for the seven month periodand, as you are aware, this did not occur. We believe there to be no credible evidence that would support a relationshipbetween [the worker's] back and testicular problems to training on December 9,2011.  Accordingly, we would call uponthis Panel to rescind the Review Office decision of January 5, 2015." (emphasisoriginal)

Worker's Position

The worker was represented by legal counsel and a union representative. 

The worker's counsel submitted that the claim is acceptable in accordancewith the Act. She said there was an accident as a result of which the workerwas injured. She submitted that the training which the worker participated inon January 9, 2011 resulted in back pain, testicle pain and headaches.

The worker's counsel addressed the issue regarding the worker's delay infiling a WCB claim.  She noted that theworker did not file the claim until many months after the accident.  She asked that the panel exercise itsauthority under Section 109 of the Act to enlarge the time limit forapplication.  She stated that aninjustice would result if the panel did not enlarge the time period for filingthe claim.  She provided the panel withseveral Appeal Commission decisions dealing with the issue of extension oftime. 

With respect to the reasons for the delay in filing a claim, the worker'scounsel identified the following factors for the panel to consider:

1.         Theworker's physicians were investigating the cause of the worker's symptoms to determine whether they were related to his workduties or an unrelated illness or           condition.  The worker did not want to file a claimunless there was medical evidence tosupport the claim.

2.         Theworker was reluctant to file a claim because he was fearful that he may be       punished for filing a claim. The workerfeels that he was punished for filing a   priorclaim. 

The worker explained that he has been punished (for example; transferred toa workplace far from his residence), ridiculed by co-workers and managers, andaccused of faking a disc injury, all arising over his absences from workrelated to WCB claims.  The workerprovided details regarding his relationship with his employer and supervisors.The worker's counsel also noted that embarrassment with the nature of the claimwas also a factor in the delay. 

The worker acknowledged that he filed WCB claims for injury after theDecember 2011 injury but in those cases there were distinct events.  

The worker called as a witness, the captain who participated in the trainingon December 9, 2011.  The captain advisedthat the worker did not work at his worksite but that he participated in thetraining with him and some of his staff.

The captain described the training which is intended to teach staff how toescape from a building when the only way out is a window. Participants worefull turn out gear weighing between 55 and 60 pounds, which included a harnesswhich can fit tightly in the "crotch area."  He outlined the steps involved in getting outthe window:

·        attach a hook, which is part of the turn outgear, to the window frame

·        put head out window

·        lead with one leg, placing it out the window

·        put second leg out the window, braced againstthe exterior wall so "you would be hanging by the hook onto the windowledge"

·        activate the built in rapelling gear which isconnected to the hook to permit worker to rapel down the building.

The captain advised "nobody free falls."  He advised that each participant had toperform this drill several times, eventually performing it with ablindfold.  He said there are 3 trainingofficers present while the workers are practicing the drill. 

The captain advised that after completing the drill and departing in a truckwith the worker, they came across a motor vehicle accident.  He said that the worker assisted at theaccident scene,  holding the neck of aperson in the vehicle until she was moved by paramedic staff.

After attending the accident scene, the worker mentioned to him that he feltsome discomfort in the back.  He saidthat they did not discuss the location or cause of the discomfort.

Regarding the Incident and Injury form which he signed on February 9, 2014,the captain advised that the worker provided the completed form and asked himto sign it.  He did not fill in the form,only signed where his signature was required.    

The worker's counsel reviewed the various medical reports and records on theworker's file.  She noted that the workersaw his family physician on December 15, 2011. She noted the physician's letter of March 17, 2014 which included thephysician's findings of the December 15, 2011 appointment. The physician notedthat the worker reported headache, right thigh pain and testicular pain. 

The worker's counsel also noted a letter from the worker's treatingchiropractor who confirmed that he saw the worker on December 13, 2011regarding the worker's December 9, 2011 incident. The chiropractor advised thatthe worker reported "noting lower back stiffness" and right  leg/thigh aching/cramping" and that anaching to his testicles had returned.  Heopined that the worker had aggravated his lumbar spine by the trainingactivities.  

The worker's counsel noted that in a 2005 Appeal Commission decisionrelating to the worker, the panel relied upon the evidence of the occupationalhealth clinic physician.  She asked thispanel to accept evidence from the same physician in regards to this claim.  She noted this physician provided a reportdated October 16, 2014 which provided an explanation for the worker's symptomsincluding his testicle pain. 

The worker's legal counsel said that the panel must focus on all thesymptoms the worker reported to his physicians. She noted there is no internal WCB opinion or contrary opinion on thefile.  She noted that the 2014 call-inexamination by a WCB medical advisor did not address the 2011 injury.

The worker's counsel also noted that the injury has been described as anaggravation of a prior injury.  Shesuggested this determination should be left to adjudication and that the issueto be determined by the panel is claim acceptance.  

Analysis

The issue before the panel in this appeal is whether the worker's claim fora workplace injury is acceptable.  Forthe worker's appeal to be successful, the panel must find that the worker wasinjured in an accident that arose out of and in the course of his employment.The panel is not able to make this finding.

An essential requirement of an acceptable claim is that the worker beinjured.  In this case, having consideredall the evidence, including the medical evidence, the panel is not able to findthat the worker sustained an injury at work on December 9, 2011.  In reaching this decision we note thefollowing:

·        the worker did not report the injury to the WCBuntil February 20, 2014 even though he was familiar with the WCB claim process.

·        the worker's treating chiropractor and familyphysician did not  report a workplaceinjury to the WCB until requested by the WCB approximately 24 months after thefact.

·        the worker did not complete the employer'sIncident and Injury form until February 9, 2014.

·        the WCB Worker Incident form indicates area ofinjury to be L2, L3 (back). 

·        the area of injury noted by the family physicianare headache, right thigh pain and testicular pain.

·        the worker did not complain about the exerciseduring the time he was participating in it. 

·        3 training staff were present to assist workersand prevent injuries.

·        the captain who participated in the training didnot note any injury to the worker.  

The panel finds that the above information, considered in its totality isnot consistent with a workplace accident and injury having occurred on December9, 2011.  The worker, his treatingphysician and chiropractor are aware of the duty to report accidents andcomplete appropriate forms, yet all failed to do so.  This suggests that none considered thecomplaints to be work- related.  Thisview is strengthened when the medical information is considered.  There appears to be no treatment for theinjury which the worker complained of, i.e. L2, L3 back, in his WCB Workerincident form.  

As noted, the WCB Incident Form indicates the areas of injury to be L2 L3(back). The treating chiropractor's letter indicates that

"2. [The worker] reported he was involvedin...training.  He also noted that heattended a car accident and was noting lower back stiffness.  He also noted that in the...training he wasjumping out of a window and he noted right leg/thigh aching/cramping.  In past episodes of his lower back discomfortthere is also an aching to the testicles that is associated with his lower backdiscomfort and this had returned.  Therewas also aching/muscular cramping to the right thigh."

The chiropractor noted that, on examination, there was stiffness across thelower back but ranges of motion were near full. He does not report any treatment rendered in relation to the worker'scomplaints.

The family physician noted that he saw the worker on December 15, 2011.  He advised that the worker had participatedin training and "Subsequently he developed headache, right thigh pain andtesticular pain."  He noted therewas no mention of back pain and he did not examine the back.  Examination was limited to the lower abdomenand genitals.  The worker was referred toa urologist and prescribed medication for a possible testicular infection orprostatitis. There is no indication of treatment for the thigh pain or theheadaches.

The panel notes that the worker had just returned to work on December 9,2011, having been off for non-work reasons. He was seen by his treating chiropractor on several occasions prior toDecember 9, 2011.  The chiropractor sawhim on November 29, 2011 when he reported ongoing testicular aching and rightthigh cramping.  He was seen again onDecember 8, 2011, the day prior to the December 9, 2011 workplace injury.  At that time the worker reported that hisback and testicular pain had improved.

The panel is unable to identify a specific injury that occurred on December9, 2011.  The panel finds that theworker's complaints of pain and discomfort were a continuation of complaints hehad in the past (and continued to have in the future) and were not related tothe activities of December 9, 2011.  Whilebeing examined by a WCB medical advisor on a different claim, the workerattributed his ongoing headaches to a lack of sleep, secondary to testicularpain.  He has also indicated that histhigh pain/cramping comes and goes.

The worker's counsel asked that the panel accept the opinion of anoccupational health physician who had examined the worker approximately 33months after the incident.  She notedthat a different panel had accepted the opinion of this physician in an appealregarding the worker in 2005. 

The panel does not attach weight to the opinion of the occupational healthphysician.  As noted, this opinion wasprovided 33 months after the incident. It is based on a description of the December 9, 2011 training which the panel finds to differ significantlyfrom the description provided by the worker's witness at the hearing.  The mechanism of injury noted by theoccupational health physician is based on a history provided by the worker, thatthe worker was injured "...in a series of test drills jumping head firstthrough a window to hang on an equipment belt attached at the front by a legharness; the maneuver required twisting exertions to turn oneself upright, andthen rappel down the face of the building."  The panel notes, however, that thedescription provided by the captain is of a significantly more controlled trainingexercise where a worker methodically climbs out the window, one leg at a time,and is secured by a hook to the window frame. The panel accepts the descriptionprovided by the captain at the hearing which in turn affects the weight placedon the occupational health physician's opinion which relied on a far moredramatic mechanism of injury. 

The panel did not find the worker's reasons for failing to file the claim tobe credible. He was aware of the proper process to deal with workplace injuriesand had filed claims before and after the incident.  We are not able to attach weight to hisconcern about labour relations and reputation issues being the reason for hisdelay.

Finally, there was a suggestion that the worker told his captain, onDecember 9, 2011, that he injured himself at work that day.  The evidence on file and provided at thehearing does not support this suggestion.

The employer's appeal is allowed. 

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of June, 2015