Decision #34/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the claim was not acceptable. A hearing was held on February 5, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a claim with the WCB on January 16, 2017 for a head injury. He described the incident that occurred on January 13, 2017 as:

I was driving a truck, I veered off to the left to let a crane operator pass me. I hit something (a stump or something) and then I flew backwards and the back of my head hit the back windshield and broke it. I was going about 40 kilometers an hour. I finished my shift.

The next day I could not get out of bed. I had a migraine/nauseousness and vertigo.

At his doctor's appointment on January 16, 2017, the worker was diagnosed with "Head injury - concussion" and the doctor ordered a CT scan to be conducted. The worker described his symptoms as headaches, nausea and dizzy spells since the accident. The doctor's notes for the appointment indicated:

Alert and oriented, speaks well. Apprehensive. Pupils equal and reactive. Grip strong L == R, sensation in hands intact Legs slr 30 degrees L and R. Knee and ankle reflexes diminished, says sensation is less on L. gait is normal, no nystagmus. Abd (abdomen) is soft, no masses or tenderness.

The employer contacted the WCB on January 17, 2017 to advise that the worker had initially reported a property damage claim on January 13, 2017 stating that while throwing tools into the back of his truck, one of the tools bounced off another and hit the back windshield of the truck. The employer further advised that on or about January 15, 2017, the worker emailed the employer to inform them that he lied about the property damage and that he had actually been in a motor vehicle accident while not wearing a seatbelt. He told his employer that he hit a snow bank and went into the ditch. He also stated that during the accident, he hit his head on the front windshield and was then thrown back and hit his head on the back windshield. The employer provided a statement to the WCB from another employee who helped tow the worker's truck out of the ditch and provided a photograph of the distance from the front seat of the worker's truck to the back windshield.

At his follow up appointment with the doctor on January 18, 2017, the worker advised the doctor he "Still has headache, dizziness, spots in front of eyes, nausea and weakness of arms Lower back is stiff and sore." The CT scan was reviewed by the doctor who noted:

CT Scan done in [location], today shows no extradural or subdural hematomas to me, awaiting radiologists report

On January 19, 2017, the WCB advised the worker that his claim was not acceptable as they could not establish that a workplace injury had occurred. The WCB noted that the statement from the co-worker who assisted the worker when his vehicle was in the ditch, did not note any damage to the vehicle and the worker had not indicated that he was injured. The WCB also noted that the worker had provided false information to his employer regarding being absent from work on January 14 and 15, 2017.

On February 14, 2017, the worker requested reconsideration of the WCB's decision to the Review Office. After a review of the claim and submissions from the employer and the worker, Review Office upheld the decision of the WCB that the claim was not acceptable. Review Office found that the worker delayed in reporting the accident to both his employer and the WCB and also delayed in seeking medical treatment. They noted that the worker stated the incident occurred at approximately 10:00am or 10:30am but he was able to continue his regular job duties until his shift ended at 6:30pm that day "…without any apparent difficulties or known injury." Review Office was also unable to account for the worker's worsening symptoms over the weekend or the need for the worker to seek medical attention relating to an incident occurring on January 13, 2017.

The worker filed an appeal with the Appeal Commission on July 21, 2017. An oral hearing was held on February 5, 2018.

Reasons

Applicable Legislation and Policy

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: 

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.

Accident is defined in subsection 1(1) of the Act, which provides as follows: 

"accident” means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful 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 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;

The worker is appealing the WCB Review Office decision that his claim is not acceptable.

Worker's Position

The worker was self-represented. He participated in the appeal by teleconference.

He described his accident as follows:

And I was just driving down one of the ice roads and I came around the corner, it was a sharp hairpin corner, and there is the mobile crane coming down, and obviously like snow roads are very, very narrow. And so he was taking up pretty much all of the roadway and I just veered to the left. And then I don't know what, I guess like a sinkhole or a stump or whatever, but I kind of hit it and the whole truck like rocked me back. And so I smacked my head against the back window and honestly, up to that, I thought I was okay, but I wasn't really sure. But I didn't really start feeling nauseous and dizzy until later in the day. And then when I saw my foreman later on in the day, [name], I told him that the back window was broken and something must have went through it.

In answer to a question the worker said that he did not know what speed the truck was moving when it left the road. He said it could have been going 10 or 20 or 40 kilometers an hour. The worker advised that he could not remember whether he was in the vehicle or outside when his co-worker arrived and helped to pull his truck out of the ditch.

Regarding whether the vehicle was damaged the worker advised that there was no damage to the windshield or the rearview mirror. He said the rear window was cracked and by "…the end of the day, just the whole thing fell apart".

Regarding his duties on the day of the accident, the worker advised:

It was a really light duty day, so that's probably why I didn't feel anything. But, so my really big thing I had to do is paperwork and make sure the towers were straight.

The worker was unsure of the distance between the camp and the area in which he was working. He thought it might be a 45 minute drive.

The worker said that after the accident he was nauseous, couldn't sleep and had the" worst headache". He also had a stiff back and neck. He saw a physician at a local hospital who advised that he had a whiplash, whiplash concussion which is caused by shaking the head back and forth. The physician would not authorize a return to work.

The worker was asked about his current health. He advised that upon returning to his home community, in another province, he saw a physician. He said his symptoms included nausea, dizziness, lack of sleep, trouble remembering and being short tempered.

He saw the physician a second time to get approval to return to work. He said that the physician permitted him to return to work but advised him to avoid heights until his dizziness cleared up. The worker said that he returned to work about two months after the accident.

The worker acknowledged that the employer did offer modified duties.

In reply to a question about how his head hit the back window, the worker stated the driver seat was "slightly reclined" and he was wearing winter gear. He said he hit his head about 3 or 4 inches up from the seat, right in the middle of the back window.

Regarding the picture which the employer provided and was sent to the worker, the worker expressed doubt about the authenticity of the picture. He said that it was much darker when he went off the road. He did not recognize the truck that was pulling his truck on to the road and questioned who took the picture.

The worker expressed concern that there was no statement from the operator of the crane which caused him to pull off the road.

Employer's Position

The employer was represented by its Environmental Administrator, Health and Safety and its Supervisor, Health and Safety.

The employer representative advised:

• on Friday, January 13, 2017, at around 10:30 AM, the worker's co-worker was driving down the right of way when he was approached by the worker who said he had hit a bush.

• the co-worker helped tow the worker's vehicle out of the snowdrift and verified that there was no damage present to the vehicle, including the rear window.

• the worker called his foreman, to report that while he was driving, he had hit a bump on the right of way, and something in the back of the truck broke the rear window.

• the worker showed no symptoms and performed his regular duties until 6:30 p.m. on Friday, January 13, 2017.

• the next day, the worker was not seen on the worksite, so his foreman, attempted to call him at which point he indicated that he worked until 10:00 a.m. and then went home due to personal illness.

• on Monday, January 16, the worker reported to the employer's Health and Safety Advisor, that he had falsified all of the statements.

• the worker then reported that he believes he had sustained a workplace injury as opposed to the property damage that was initially reported. He indicated that while he was driving the truck at approximately 40 kilometers per hour without a seatbelt, he had hit a snowbank which resulted in him hitting the front windshield with his forehead, and the momentum had thrown him to the back of the crew cab truck, where he broke the back window with the back of his head.

• the Health and Safety Advisor checked the worker's head and noted that there were no physical lacerations, bumps, or bruises. This is also noted by the witness who was present during the statement taking.

The employer representative noted that the worker was driving a 3/4 ton crew cab truck, which had a full row of passenger seating behind the driver and front passenger seating. She noted that a full seat height and 42 inches in distance would need to have been traversed in order for the worker's head to come in contact with the back windshield of the crew cab truck.

The employer representative noted that the worker attended a local health center and was considered to be unfit for work pending a CT scan. She said that the next day, the worker was offered modified duties but declined the offer of modified work, indicating that he could make more money at home.

The employer representative advised that the CT scan revealed no concussion, although the physician still did not want the worker performing certain functions due to precautionary practice. She advised that the worker was subsequently dismissed for falsifying statements on a near miss report and an incident investigation report.

The employer provided two pictures of the accident which were not on the WCB file. A copy of one of the pictures was emailed to the worker's cell phone during a break in the hearing. The worker acknowledged receiving the picture.

The employer representative acknowledged that the rear window of the truck was broken.

Regarding the worker's comments that it appeared that a different truck was in the picture, the employer representative confirmed that in addition to the worker's truck and the co-worker's truck, a flatbed truck arrived and helped pull the vehicle on to the road. The employer representative also reiterated that there is GPS information from the worker's truck which is available should the panel need it.

Analysis

The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was not able to make this finding.

The panel notes that accident is defined as:

"accident” means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful 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 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;

The worker described the accident in his Worker Incident Report as:

I was driving a truck, I veered off to the left to let a crane operator pass me. I hit something (a stump or something) and then I flew backwards and the back of my head hit the back windshield and broke it. I was going about 40 kilometers an hour. I finished my shift.

The panel has carefully considered the worker's description of the accident and the resulting injury. The panel finds that the mechanism of injury provided by the worker is incongruent with the accident that occurred on January 13, 2017. The panel is unable to find that it was probable that the worker would hit his forehead on the front windshield and fly backwards over the top of the driver's seat and hit the back of his head on the rear window of the crew cab truck.

The panel also notes that the worker was seen by the Employer's Health and Safety Officer who did not find any signs of physical lacerations, bumps, or bruises. As well the worker received a CT scan which was found to be normal. The panel is unable to identify an injury to the worker.

The panel is unable to find, based upon the information on the file and provided at the hearing, that the worker was injured as a result of the noted incident.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of March, 2018

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