Decision #163/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. An oral hearing was held on September 27, 2018 to consider the employer's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
The worker reported to the WCB, on July 14, 2017, that he injured his right shoulder in an incident on June 30, 2017 which he described, in part, as:
I was walking down the walkboard to the house carrying an elliptical machine with a partner (name) & I slipped/tripped on the deck. It jarred me really good in the right shoulder but I caught myself. I was carrying all the weight on my right shoulder. I felt a tear & it was really hot, can't lift my arm above my head. It was killing me.
On August 1, 2017, the WCB advised the worker that his claim was not acceptable. The WCB stated that after gathering information regarding his claim, they could not confirm that a work-related injury occurred on June 30, 2017. The WCB noted that the worker had not reported the workplace accident to his employer, that he had delayed seeking medical attention for three days, and that he had returned to work four days after the reported incident and worked his full regular duties with no difficulties.
On September 13, 2017, a worker advisor acting on the worker's behalf requested that Review Office reconsider the WCB's decision. The worker advisor noted that a co-worker who was working with the worker on June 30, 2017 confirmed that the worker had said something about having "tweaked his shoulder," and had mentioned it again after they completed the job they were doing that day. The worker sought medical attention on July 2, 2017, only the second day after the workplace accident, and the physician diagnosed him with a rotator cuff injury. The worker also attended physiotherapy on July 18, 2017, where he was diagnosed with a right shoulder strain/sprain or a rotator cuff tear.
On October 24, 2017, Review Office advised the worker that his claim was acceptable. Review Office found that the worker injured himself on June 30, 2017 while walking down a ramp carrying a treadmill. Review Office found that the co-worker's statement confirmed the incident occurred on the date in question and could be causally connected to his employment. Review Office placed weight on the July 2, 2017 report from the worker's treating physician, whose findings of a positive empty can test, difficulty with the worker raising his arm to 90 degrees and subjective reporting of radicular pain into the lower arm were all consistent with the reported mechanism of injury. Based on the totality of the evidence, Review Office found that the worker sustained an accident as defined in The Workers Compensation Act (the "Act").
On November 28, 2017, the employer appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by 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.
"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,
(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.
The employer was represented at the hearing by its President, who submitted that the worker worked for the employer for less than two months. He noted that close to the end of his employment, the worker phoned him directly and asked for a raise, saying that he had an offer from another company for a higher wage and wanted to pursue that offer if the employer could not match it. The President said he told the worker that the worker would have to speak to his supervisor, but that he could almost guarantee he would not be getting a raise.
The President stated that he did not know that the worker suffered a shoulder injury and was on compensation until much later, when he received a letter from the WCB. He said that this was very unusual; that he would normally be notified much faster of an injury or a claim. He said that the employer's policy is that if anybody is injured, the employer talks to the WCB and arranges for the worker to show up within the next day or so for light duties which they have put in place. The President stated that neither he nor the people he spoke to at the WCB could explain why they were not notified earlier of the worker's injury, and that it was unfair for the employer to be charged "x amount of dollars without having any input on his recovery, etcetera."
The President went on to state that he did learn, after investigation, that the worker was slightly injured on the job. He said that he had a hard time believing that the injury was as significant or extreme as the doctors' reports indicated. He noted that the worker returned to work on Tuesday, July 4, 2017 and worked the entire day on his full regular duties without complaint. The President submitted that the work was heavy, which the worker knew, and that he would not have come to work or been able to do the work if his injury was that bad. He noted that the worker did not call in or report to work over the next three or four days, and there was no indication as to why he was able to work a full shift on July 4, but not thereafter.
In conclusion, the President questioned why the worker's claim was originally denied by the WCB, then suddenly reinstated or accepted based on the same information. He submitted the employer should not have to pay for the claim in these circumstances, or to continue paying for the claim.
The worker did not participate in the appeal.
The issue before the panel is claim acceptability. For the employer's appeal to succeed, the panel
must find, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The panel notes that the employer acknowledged at the hearing that the worker suffered an injury at work on June 30, 2017. The employer's President stated in his submission that he learned, after investigation, that the worker was slightly injured on the job. In response to questions from the panel, the President confirmed that he agreed that an incident occurred at work on June 30, 2017. He acknowledged they did not dispute that the worker slipped and jarred his shoulder while carrying an elliptical machine.
The President also indicated that they did not dispute that the incident and the worker's injury were corroborated by his co-worker. He added that he had subsequently spoken with the co-worker, who confirmed that something happened that day.
The President further agreed at the hearing that the worker sought medical treatment on Sunday, July 2, 2017, two days after the date of the incident, at which time he was diagnosed with a right shoulder problem and put on light duties. While the President questioned the seriousness of the injury, he stated that there was obviously an issue as the worker went to see a doctor.
The panel accepts the employer's acknowledgement that the worker suffered an injury at work on June 30, 2017. The panel is also satisfied that the findings and diagnosis of a right shoulder injury by the attending medical practitioner on July 2, 2017, and the diagnosis of a right shoulder strain/sprain by the attending physiotherapist on July 18, 2017, are consistent with the mechanism of injury as reported by the worker and corroborated by his co-worker.
The panel notes that the employer raised a number of other concerns and issues in the course of the hearing, including matters pertaining to the extent of the worker's claim, the worker's entitlement to ongoing wage loss benefits, the worker's employment status and the impact of the claim on the employer's firm experience. The panel acknowledges those concerns and issues, but notes that they are not before us on this appeal, which only deals with claim acceptance, and the panel is not able to address them at this time.
In the result, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of November, 2018