Decision #160/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on September 20, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker reported to the WCB on November 2, 2016 that he injured his right hip sometime in November or December 2015 when he "…slipped on ice and fell backwards, landing on the right side injuring my hip." The employer filed their Employer's Accident Report with the WCB on November 9, 2016, indicating that the accident was never reported.

A report from the worker's doctor dated November 15, 2016 indicated that the worker was seen in May 2016, and x-rays and a bone scan revealed a partially healed right hip fracture. The worker's doctor advised the WCB that the worker now thought his right hip injury occurred in January 2016.

In a conversation with the WCB on November 17, 2016, the worker confirmed that his injury occurred as he described in the initial injury report. He stated that he went into the office after he fell and advised his employer that he had slipped and fallen. The worker further advised the WCB that he continued to work, that he was on the road the entire time and did not return home until his employment was terminated in February 2016.

The WCB spoke to the employer on December 13, 2016, who advised that he had never had a conversation with the worker regarding an injury or a slip and fall, and that incident forms are readily available at their office for employees to complete in the event of a workplace injury.

On December 13, 2016, the WCB advised the worker that his claim was not acceptable. The WCB advised that the evidence on file did not establish or support that an accident occurred at work.

On December 18, 2017, the worker requested that Review Office reconsider the WCB's decision. In a letter which he submitted with his request for reconsideration, the worker indicated he had not realized how injured he was until he returned home and sought medical attention.

On February 15, 2018, Review Office advised the worker that his claim was not acceptable. Review Office placed weight on the employer's advice that he was unaware of the worker's injury as the worker had not reported it to them or filled out an incident report. Review Office noted that the worker could not provide the exact date that he sustained his right hip injury. He advised the WCB that the injury occurred in November or December 2015, and told his doctor it may have occurred in January 2016. The worker also did not provide an explanation as to why he did not seek medical attention until May 2016. Review Office determined, on a balance of probabilities, that an accident as defined in The Workers Compensation Act (the "Act") had not been established.

On April 5, 2018, the worker appealed the Review Office 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 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,

(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 self-represented and participated in the hearing by teleconference. The worker made a submission at the hearing and responded to questions from the panel.

The worker's position was that his claim should be accepted because he had an accident while he was working, where he fell and broke his hip.

The worker described the conditions and events surrounding his accident. He said that he had parked his truck, and went to pull the pin to unhook the trailer, but it was frozen. It was icy and he slipped while pulling on the pin, falling backwards and hitting the trailer beside him. He lay there for a while, then eventually managed to unhook the trailer and went to the office, where he told his boss that he had fallen and thought he had hurt himself.

The worker said that his boss asked if he wanted to fill out workers compensation papers, but he said not right now, as he thought it was only a bruise. The worker said that he wanted to go home, but the employer had another load lined up for him to take, so he continued working.

The worker said he did not know the exact date on which the accident occurred, but knew it was in early December 2015, as a friend had reminded him that he was walking badly, "like a zombie," when he attended a Christmas party that year. The worker said that he was in such pain but had blamed everything on back problems and sitting too many hours in the truck, because he did not know he had broken his hip.

The worker said that after his employment was terminated in February 2016, he had problems getting employment insurance and was focused on that and on getting a place to live. When he could hardly walk anymore, he finally went to see his doctor. At that point, he found out that he had broken his hip, but because he had waited so long it had healed crooked, which explained why he was in so much pain. The worker said that he is supposed to have his hip replaced, but is still waiting for a date for the surgery.

Employer's Position

The employer did not participate in the appeal.

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 his employment. The panel is not able to make that finding, for the reasons that follow.

The panel accepts that the worker had a right hip fracture which was partially healed by May 2016. The panel is unable, however, to relate that injury back to a workplace accident in November/December 2015 or January 2016.

The panel finds, in general, that the worker was a very poor historian. The panel finds that there are too many inconsistencies in the information on file and as presented at the hearing.

The panel is prepared to accept that the worker probably fell when he was unhooking a trailer, but is unable to find that this resulted in a fractured right hip. The panel questioned the worker at length with respect to the description and details of the accident itself. The worker said that when he slipped, he hit the ground first with his bum. He later said that he must have hit the ground with his right side. The worker said there was little space between trailers, and he ended up hitting the landing gear from the trailer beside him. Which part of the worker's body would have hit the next trailer or its landing gear or how that would have happened is however unclear, given the worker's evidence that he hit the ground first. The worker's response to questions in that regard was that "it was my hip because I was on the ground…there wasn't much room in between."

The worker said that he thought he suffered a bruise when he fell. He acknowledged that the employer asked him if he wanted to fill out a workers compensation form, but he said no, that he thought it was just a bruise. He said he was hoping that he could return home at that point, but the employer had arranged for him to take another load. At the hearing, the worker said that he did not want to spend the time it would take to fill out the paperwork, even though the information showed that he had to sit and wait at least two hours for his next load. The worker did not file his Incident Report until November 2, 2016.

The worker has been unable to identify the date on which his right hip injury occurred. He indicated at various times that it was in November or December 2015, then later told his doctor he thought it was in January 2016. At the hearing, he said that while he did not know the exact date, he knew that it was in early December 2015, because a friend had reminded him that he was walking badly, "like a zombie," at a Christmas party that year. The worker also indicated that he was attributing it at that time to back problems, as he did not know he had fractured his hip.

The evidence shows that the worker did not seek medical attention for his hip until May 2016. The worker offered various explanations as to why he did not seek medical attention earlier. The panel is unable to place much weight on those explanations. The worker said that he was in serious pain and could not sleep but continued to drive until February 2016, when his employment was terminated. While the worker indicated that he was on the road the entire time until then, the evidence indicates that he did return home at times, including around Christmas.

The worker further indicated that he had other priorities after his employment was terminated, notably dealing with his employment insurance problems and finding a place to live. He also said at one point that he did not remember exactly what happened, but he probably could not get an appointment to see his doctor; that his doctor is older and takes two months off. He subsequently indicated that he did see his doctor in February 2016 for a medical for his driver's licence, but did not mention his hip problems at that time. He said that he did not try to see another doctor as it would not have helped.

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 his employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of November, 2018

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