The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her claim for a work-related injury occurring on February 19, 2014 was notacceptable.  A hearing was held onJune 4, 2015 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 5, 2014, the worker filed a claim with the WCB for a left hip injury that occurred at work on February 19, 2014. The Worker Incident Report stated:

I went to go twist to get at the cords and I felt a pop in the left hip. I went to work the next day but by the end of the day I was really sore and then when I got home I went to get out of the car and when I put my leg on the ground my left leg gave out and I kind of slipped. I didn't fall, I braced myself. I called and left a message with ("M") that night (Thursday) that I wouldn't be in on Friday and I told her that I was sore already from the previous day and that I also slipped when getting out of the car.

I was off Friday and Monday and I went to see my doctor and he took me off work.

I went to work on Tuesday February 25th at 7 am and worked until 10 am and then I came home. I saw the chiropractor the same day and he said my pelvis is twisted. I returned to work on Friday, February 28th. On Monday March 3rd I was bending over to check the anesthesia drawers and my hip popped again. Later on when walking I could feel it grinding and clicking. I then saw the chiropractor again on Friday and yesterday.

Today when I got up I could barely move and I called into work sick. I see the chiropractor again this afternoon.

A chiropractor first report dated March 10, 2014 (the worker was seen on February 25, 2014) stated that the worker twisted her back in a restricted space while performing duties in the operating room (“O.R.”) The diagnosis was left sacroiliac syndrome.

A doctor first report dated March 6, 2014 indicated that the worker twisted her low back/hip at work. The diagnosis was left low back/hip pain.

On March 9, 2014, x-rays were taken of the cervical and lumbar spines. The cervical spine showed degenerative disc disease and facet joint osteoarthritis. The lumbar spine showed mild facet joint osteoarthritis involving the lower levels.

When speaking with a WCB adjudicator on March 11, 2014, the worker confirmed the accident description as noted on the Worker Incident Report dated March 5, 2014. The worker indicated that two supervisors ("M" and "G") were aware of the February 19, 2014 workplace injury.

In claim notes dated March 13, 2014, the WCB adjudicator indicated that she spoke with "G" who stated that the worker was hobbling on February 25, 2014 and asked for help. The worker said she injured herself on February 12, 2014 while trying to reach around a cart. "G" told the worker to complete a form and then the worker went home.

The WCB adjudicator also spoke with co-worker ("B") who stated that she was in the room when the worker became stuck behind a machine. She went to help the worker because she was kind of twisted behind the machine. The co-worker said she was not aware of any injury at that time.

The WCB adjudicator spoke with "M" on March 13, 2014. "M" said she did not have a conversation with the worker on February 20, 2014 regarding an injury or any difficulties. On February 21, 2014, the worker left a message on her answering machine indicating that she slipped the day before when getting out of her car and hurt herself. There was no mention of a workplace injury. The first time she became aware of an injury was on February 24, 2014.

In a decision letter dated March 13, 2014, the WCB advised the worker that her claim for compensation was not acceptable, as a work-related accident had not been established. The decision was based on the worker's delay in reporting the injury to her employer (i.e. the worker reported the February 19, 2014 injury to her employer on February 24, 2014) and her delay in seeking medical attention until February 24, 2014.

On June 2, 2014, the worker's union representative wrote to the director of short term claims and indicated that they disagreed with the adjudicative decision dated March 13, 2014. It was felt that the worker was compliant with legislation in reporting and seeking medical attention and the worker's reporting to health care providers had been consistent. Included with the submission was a statement from "B" who stated:

I ["B"] witnessed [the worker] having difficulties on Feb 19th 2014 in the afternoon in theatre 4 when she was cleaning the anesthesia carts - she had twisted in between the O.R. bed and cart to clear the circuits. [The worker] was complaining that the bed was too close to the cart and when she reached and squeezed in-between she said she did something to herself trying to get at the leads to clean. I offered to move the bed for her and she thanks (sic) me.

On August 1, 2014, the WCB adjudicator again spoke with co-worker "B" who stated that the worker brought the statement to her and asked her to sign it. She did not read the statement before or after signing it. "B" stated that she had many conversations with the worker and the union about what she was aware of on the date of accident and she was tired of talking about it. "B" confirmed that she was in the room when the worker squeezed herself into a small space to get at the cords. "B" confirmed that the worker did not mention she was injured at the time. The first time she became aware of an injury was when the worker told her 3 or 4 days later.

In a second decision dated August 6, 2014, the WCB confirmed that no change would be made to the decision dated March 13, 2014. The adjudicator stated:

"I spoke with the co-worker again on August 1, 2014 where she confirmed the information she provided on March 13, 2014; she did help [the worker] get out from behind the equipment on February 19, 2014 but was not aware an injury had occurred."

On August 13, 2014, the union representative appealed the above decision to Review Office. A copy of the submission was provided to the employer's representative and their submission to Review Office is dated October 14, 2014.

On November 24, 2014, Review Office confirmed that the claim for compensation was not acceptable as there was insufficient evidence to confirm that an injury occurred on February 19, 2014. Review Office indicated that there were too many inconsistencies and the delay in reporting was unexplained given that the worker began to miss time from work on February 21.

The worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on June 4, 2015.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information from the worker's treating chiropractor. On August 24, 2015, the interested parties were provided with the treating chiropractor's chart notes and were invited to provide final comments. On September 17, 2015, the panel met to discuss the case and to render its decision on the issue under appeal.

Reasons

The key issue to be determined by the Panel deals with causation and whether the worker sustained an accident on February 19, 2014 arising out of and in the course of her employment.

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.

An accident is defined by Act in subsection 1(1) as:

“… a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured”

Further, 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]

Worker's Position

The worker was assisted by a union representative at the hearing. It was submitted that the worker did report the February 19, 2014 injury advising that while she was twisting to get at equipment cords that were behind equipment in the operating room she injured her left hip. It was further submitted that a co-worker witnessed the worker injuring herself in the workplace on February 19, 2014 and a copy of the co-worker’s statement was provided. As well, the worker reported her injury verbally to her employer on Thursday, February 20, 2014. When the worker arrived home on February 20, 2014 after her shift, she was exiting her vehicle and noticed that her leg gave out. This, it was stressed, occurred after the workplace injury of February 19, 2014.

Further, on February 21, 2014, the worker called into work and advised her employer via voicemail message that she had in fact injured herself at work. The worker sought medical attention on February 24, 2014 and despite the healthcare provider recommending that she not attend work, the worker reported for duty on February 25, 2014. After working for 3 hours, she had to leave due to her inability to perform her duties. At that time that she advised her employer of her inability to continue working due to the February 19, 2014 injury she was then advised to file a WCB Claim.

The worker’s representative also referred to the first report from the chiropractor dated February 25, 2014 which outlined the mechanism of injury as “twisted back in restricted space while performing duties in the OR”. As well, the doctor’s first report dated March 6, 2014 which outlined the mechanism of injury as “twisted low back/hip at work”.

On the whole, it was submitted that it was clear that the worker was compliant with the legislation in reporting and seeking medical attention and as such it was requested that the worker’s claim be accepted.

Employer’s Position

The employer representative submitted that the panel ought to put greater weight on the evidence that was on the file shortly after the incident allegedly occurred in February 2014. In that regard, it was the employer’s position that on the balance of probabilities, it had not been established that a compensable workplace injury had indeed occurred. The worker worked her full shift on February 19, 2014, although it was later claimed that she had hurt her left hip in the morning of that shift. In addition, she worked her next shift on February 20, 2014 without any noticeable difficulty.

It was further submitted that there was no evidence on the file that anybody was aware of the injury or discomfort or that the worker had communicated it to the supervisor. It was highlighted that the file showed that on the morning of February 21, 2014 the worker left a message on her supervisor’s phone indicating that she had slipped getting out of her car at home the evening before. There was no mention of a workplace injury and the worker advised that she was not able to come into work at that time. The employer representative also noted that there were inconsistencies with respect to whether or not co-workers and managers corroborated the worker’s version of the events. The written statements that had been provided were prepared long after the fact.

In terms of medical attention, the employer representative submitted that the worker did not seek any until February 25, 2014 (some six days after the alleged workplace injury). In that regard, it was noted that when the worker saw a chiropractor, she was diagnosed with left sacroiliac syndrome, the area of injury was noted to be left hip, and the clinical findings were minimal. With respect to the doctor’s first report on March 6, 2014, it was noted that the area of injury was the left hip again with clinical findings being minimal. At that time, however, there was now a note made of complaints concerning the right upper back and right rhomboid pain.

On the whole, the employer’s position was that this was not consistent with the information provided at the time of the claimed injury. It was also at odds with reports of symptoms pertaining only to the left hip or to the left leg giving out. The employer representative urged the panel to look at the information that was on the file at the time and, in doing so, the only logical conclusion would be that it simply did not corroborate with the worker’s version of events.

Analysis

The issue is whether or not the claim is acceptable. In order for the worker’s appeal to succeed, the panel must find on a balance of probabilities that, the worker’s injury occurred during the course of her employment on February 19, 2014. The panel is unable to make this finding.

After considering all of the evidence before us, the panel is of the view, that on a balance of probabilities, the worker’s injury did not occur while performing her work duties on February 19, 2014. The panel comes to this conclusion, based on the factual and medical inconsistencies on the file in a number of areas:

· With respect to when and where the worker was hurt, the panel notes that there is conflicting evidence as to whether the worker was hurt while in the operating room or while getting out of her car later the next day. The panel notes that the worker was able to complete her shift on February 19 and work her full shift on February 20, after the asserted injury at work, but was unable to work on February 21, after reporting to her supervisor that morning by phone message that she had slipped getting out of her car the evening before. In the panel's view, the evening incident, which was unrelated to her work, was more proximate to her inability to work, and describes a mechanism of injury consistent with the medical diagnosis later given to her.

· With respect to the delays in reporting the injury, the panel acknowledges that the worker did inform her employer and the WCB about her work injury within the time limits set out in the Act. However, the lack of immediate reporting and a second event at home does open up the door for consideration of whether the worker's medical issues actually arose out of her work duties. In this regard, the panel notes that the worker provided the names of a co-worker and a supervisor as witnesses to the workplace incident. The panel notes however, that neither of them corroborated the worker's version of the events on February 19. While both recalled the worker having squeezed awkwardly into a small area, both deny that the worker expressed or indicated any pain, or having seen any altered behaviours or changes in how the worker performed her job duties afterwards. The panel also notes that while the worker relies on her co-worker "B's" statement that she had verbally informed "B" of an injury that day, "B" later fully recanted her position to the WCB, stating that she had so many conversations with the worker and her union representative she just signed the statement to that effect. She indicated to the WCB adjudicator that she signed a prepared statement without having read it. Her new evidence was that she was first aware of an injury 3 or 4 days later when approached by the worker. The panel notes that this was after the second incident. The panel also notes that the worker had worked another shift and a half (February 19 and 20) without report of an injury, and that her telephone message to her supervisor "M" on February 21 referred to a slip injury the evening before, rather than a work injury two days before. The panel further notes that it was only after a failed return to work on February 25 that the worker finally made a formal report of injury to a different supervisor "G" on February 28, and finally to the WCB on March 5. In the panel's view, the worker had ample opportunities to report the injury as being work-related and had not done so. The best evidence is that her first report of having injury occurred on the morning of February 21, at which time she described an injury that was related to a non-work-related incident on the evening of February 20.

· With respect to the medical findings, the panel notes that the worker first sought medical treatment from a chiropractor on February 25, who provided a diagnosis of a left sacroiliac syndrome. The clinical findings at that time were minimal. The panel notes that this visit occurred a few days after both incidents (at work on February 19 or outside of her car on February 20), and that the diagnosis provided is theoretically consistent with both mechanisms of injury. The medical diagnosis itself therefore offers little insight for our determination of which incident caused the worker's medical difficulties. The panel notes, however, that the timing of the medical treatment is a factor in our analysis. The worker was able to work for 1.5 shifts after the February 19 incident and didn't seek medical treatment at that time. It was after the February 20 incident and after the worker called to cancel a shift and later had a failed 3 hour return to work that she sought medical treatment. This strongly suggests to the panel that the later non-work incident was the more proximal cause of the worker's seeking medical treatment on February 25.

Based on our analysis, the panel finds that the worker did not, on a balance of probabilities, have an accident arising out of and in the course of her employment on February 19, 2014. The panel therefore finds that the claim is not acceptable. The worker's appeal is denied.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 5th day of November, 2015