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 compensation is not acceptable. A hearing was held on April 27, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

File records indicate that this claim was set up in August 2015 based on a medical report from a sports medicine specialist. On August 28, 2015, the worker told a WCB claims information representative that she wasn't sure if she wanted to pursue a claim as she was nervous about repercussions from her employer since she had a claim a few years previously.

On November 10, 2015, the worker filed a claim with the WCB for a left shoulder injury that occurred on August 3, 2015. The worker stated:

I picked up a parcel and I felt a very sharp pain in the left shoulder. The parcel was a little bigger than 12 by 12 and about 6 inches high. It was very heavy. I reported it to [supervisor] and continued to work. A few weeks later I went to the…Clinic. They did an x-ray and he said I tore a tendon and that in a couple of weeks I would be fine. It's gotten extremely worse, I can't even sleep at night. I went to my doctor…today (Nov 10th). She wants me to reactivate this claim. She is asking to go back to the…Clinic and start over. She said they should of done an MRI.

The worker stated that she delayed seeking medical treatment for the following reasons:

I had the weekend off and I thought after a couple of days I would be okay. I kept thinking it would get better but it didn't. I also had gotten the flu and was really sick and I was in bed for 3 days and after those 3 days my arm was really sore. Then I went and saw the doctor.

The claim file contains medical reports from a medical clinic, the worker's family physician and a physiotherapist related to the worker's left shoulder condition. The claim file also contains telephone discussions that took place between WCB adjudication staff and the worker, a co-worker, and employer representatives regarding the reporting of a work-related left shoulder injury. In a telephone conversation on November 27, 2015, the worker was advised that her claim was denied.

By letter dated December 3, 2015, the worker advised that she was appealing the decision to deny her claim, and wished to correct the dates given and explain the confusion. The worker indicated that the injury had actually occurred on August 20, 2015. As the letter contained new information, it was referred to the adjudicator to review and provide a decision.

On January 5, 2016, the worker was advised by Compensation Services that her claim for a left shoulder injury sustained on August 20, 2015 was denied based on the following rationale:

Your co-worker…and your…Manager were not aware of a work-related injury to your left shoulder. Your employer indicates that you delayed in reporting your injury and did not report it until September 4. You did not seek medical treatment until August 24. The accident history reported to your attending physician on August 24 was a left shoulder injury occurred 3 weeks ago while lifting a parcel at work, (which is not consistent with an August 20 date of accident). Although you explain your inconsistencies with your initial reporting of your injury to the WCB as being due to emotional distress as outlined on your December 3 letter; it is the opinion of the WCB that along with the aforementioned reasons the inconsistencies are too great. Therefore, it is the opinion of Compensation Services that a relationship between the development of your left shoulder difficulties and an accident "arising out of and in the course" of your employment has not been established.

On January 5, 2016, the worker advised the WCB that she wanted to appeal the adjudicator's decision to deny her claim and that her letter dated December 3, 2015 was her appeal submission to Review Office.

On March 2, 2016, Review Office determined that the worker's claim was not acceptable.

Review Office referred to specific file evidence to support its findings that there were inconsistencies in the worker's version of events as to the date of her left shoulder injury and the events that occurred afterwards. Review Office indicated that since the worker did not work from July 26 to August 9, they could not establish she was in the course of her employment on or about August 3. She did not work with the co-worker to whom she said she reported her problems until August 16. It therefore stood to reason that they could not find evidence of a workplace accident from July 26 through to August 16.

Review Office said the worker's revised accident date of August 20 was also considered unacceptable. More evidentiary weight was afforded to the statement made to her doctor on August 24 (that her injury was three weeks old by that point) than her daughter's third party recall three to four months after the fact.

On November 7, 2016, a worker advisor acting on the worker's behalf 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 Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means 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.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker responded to questions from the worker advisor and the panel.

The worker's position was that her claim is acceptable, as there was sufficient evidence and information to support that a workplace accident occurred and was responsible for the worker's left shoulder injury.

The worker advisor submitted that although the worker was a poor historian initially, the evidence supports that the actual date of accident was August 20, 2015. The worker initially informed the WCB of her accident, but was not sure if she wanted to pursue a claim at the time because she was nervous about repercussions. In the advisor's view, this was a reasonable explanation as to why she did not initiate the claim at that time.

It was submitted that the evidence supported that the worker reported the accident to the employer within a reasonable timeframe. At the end of her shift, she told the person who she thought was the supervisor that she had hurt her shoulder that day. The worker was consistent in her reports of the mechanism of injury to the WCB, the employer and the treating physician. There was no evidence to support that her left shoulder difficulties or injury arose out of any other actions than the workplace accident.

Employer's Position

The employer was represented by an administrator. The employer's position was that the worker did not suffer a work-related injury, and the claim was therefore not acceptable.

The employer's representative noted that in her WCB forms and when she went to see the doctor, the worker stated that she hurt herself on August 3, 2015, but later recanted that date with reference to what her daughter remembered from that time. The representative agreed that the worker told her co-worker that she had a sore shoulder on August 20, 2015, but noted that the co-worker stated that the worker never said she injured her shoulder at work. The representative submitted that the worker would have been aware that the parcel she lifted would be heavy, as this was not the first time this customer had come in with a heavy parcel. She noted that the worker did not report her injury to the WCB, even though she knew the procedure for filing a claim.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment in August 2015. For the reasons that follow, the panel is unable to make that finding.

The panel notes that there are a number of discrepancies in the evidence with respect to the worker's reporting of dates, and in particular, the date the incident occurred. The worker initially reported that she was injured on August 3, 2015, and an incident date of August 3, 2015 was identified on an ongoing basis for more than three months after that, including:

• The worker first attended a clinic on August 24, 2015. The report from the clinic identified the worker's presenting problem as a history of left shoulder injury "3 weeks ago while at work";

• An adjudicator spoke to the worker on August 28 and September 15, 2015. In a letter to the worker dated September 15, 2015, the adjudicator referred to the worker's claim "for a left shoulder injury sustained on August 3, 2015" and confirmed that the worker had indicated she was not pursuing that claim;

• In a report dated November 12, 2015, a second doctor wrote that the date of incident was August 3, 2015;

• The Worker's Incident Report which the worker filed on November 10, 2015 identified August 3, 2015 as the date of incident;

• Notes of an initial contact between the WCB adjudicator and the worker on November 17, 2015, subsequent to the filing of the claim, confirmed that the worker injured herself on August 3, 2015;

• A November 18, 2015 report from the worker's family doctor reported the date of incident as August 3, 2015.

File information shows that on November 27, 2015, a WCB adjudicator advised the worker that her claim was denied, based in part on information from the employer which showed that the worker was on vacation from July 26 to August 9, and therefore did not work on August 3, 2015. Subsequently, in her letter of appeal dated December 3, 2015, the worker sought to correct the dates she had provided and to explain the confusion. The worker indicated at that point that the accident occurred on August 20, 2015. There had been no reference to an August 20 date or incident before that.

The worker acknowledged at the hearing that she was on holidays on August 3, 2015, and the panel is satisfied that the evidence clearly establishes that the worker did not suffer a workplace injury on that date.

The worker's current position is that the accident date was actually August 20, 2015. The worker has suggested several explanations as to why or how the error with respect to the date of incident and other errors or inconsistencies in the evidence may have occurred. The panel has considered those explanations. The panel notes, however, that there is a lack of evidence in proximity (close in time) to August 20, 2015 to support that an incident occurred on that date. In the absence of such evidence, and given repeated reports of an August 3 date of incident at that time and for a considerable period of time thereafter, the panel is unable to find that the worker suffered a workplace injury on August 20, 2015.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her employment in August 2015. The worker's claim is therefore not acceptable.

The worker's appeal is denied.

Panel Members

L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of June, 2017