The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on December 12, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 11, 2018, the worker filed a Worker Incident Report with the WCB reporting that he injured his right pinky finger in an incident at work on June 6, 2018. The incident was described as:

There is an area where they have the flyers stacked up on metal shelves. I was right beside the metal case and I lifted my hand up and the knuckle of my little finger hit the edge of the metal cabinet. I felt pain right away. I noticed that my knuckle was dislocated and I walked back to [staffing supervisor] and asked him to put it back and he did. I left work and went to a walk in clinic.

The employer filed an Employer's Accident Report with the WCB on June 13, 2018. The employer indicated that the worker stated he was explaining the situation regarding certain job duties to a co-worker when he motioned with his right hand toward a metal cabinet and the last knuckle of his little finger on his right hand hit the cabinet. The worker advised that the "…knuckle was swollen and the bone was moved back toward his wrist." The incident was witnessed by the co-worker. The worker's supervisor noted that she was speaking to the worker regarding an employment matter and he was quite upset and went to speak to a staffing supervisor. The supervisor noted that a statement from the co-worker who witnessed the incident advised that as the worker was walking past him, he "...banged his hand…" on the metal cabinet "…and was yelling."

In an initial discussion with a WCB adjudicator on June 13, 2018, the worker confirmed that on June 6, 2018, he "…hit his right pinky finger on the edge of a metal cabinet and experienced immediate pain. He reported the injury to his employer and sought medical treatment that day." He advised that x-rays were taken at the clinic and he was provided with a doctor's note to remain off work for two weeks. The worker noted that he contacted the employer to see if they had one-handed modified duties available for him and was told they did not. The WCB received a copy of the results of the June 7, 2018 x-ray of the worker's right hand, which noted a "…comminuted fracturing identified involving the fifth metacarpal neck." The WCB was also provided with a doctor's report and a Physician's Modified Work Information Sheet dated June 13, 2018, recommending the worker remain off work for two weeks and would be unable to return to regular duties before July 7, 2018 due to an injury to the fifth finger of his right hand.

On June 15, 2018, the employer provided statements from the worker's staffing supervisor and two co-workers. All of the statements noted that the worker was upset and speaking loudly after a discussion with a supervisor. The statement from the staffing supervisor indicated he heard a bang, then the worker came back in to his office saying he had hurt his right pinky finger. The statement from one co-worker indicated the worker banged his hand on the cabinet as he was walking by. The second co-worker said that she saw the worker in the staffing supervisor's office after his outburst, jumping up and down cradling his hand. In a further conversation with the worker on June 20, 2018 regarding the incident, the adjudicator advised that the statements which had been provided by the employer did not support the mechanism of injury as described by the worker. By letter dated June 20, 2018, the WCB's Compensation Services advised the worker that his claim was not acceptable as they had determined the workplace accident did not arise out of and in the course of his employment.

On July 25, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that his injury was as a result of him walking toward the cabinet area "…gesturing my arms/hands…" and that he did not strike "…any surface out of anger…" On July 26, 2018, Review Office returned the worker's file to Compensation Services for further investigation. Review Office asked that Compensation Services obtain a copy of the first medical report from his attendance for medical attention on June 6, 2018; provide the worker with translation services "…to ensure the worker has the ability to fully explain his description of events, accident and comprehend the questions asked of him"; and contact the co-worker who was present when the incident occurred to obtain his description of the events on June 6, 2018.

On July 27, 2018, a French-speaking adjudicator spoke with the worker to obtain his version of the events that led to his injury. The adjudicator noted that the worker advised that he had been unhappy with a decision given to him by his supervisor and went into another supervisor's office to discuss it with him. The worker noted that he was speaking in a loud voice, in both languages but did not feel that this was disrespectful towards the supervisor. He also indicated that he was moving his arms and that he expresses himself with his hands a lot. He advised that he started walking towards his work area, where he noticed some additional work and was "…using his arms when speaking, raising his arms, swinging it from down to up and in doing so, knocked his right hand, pinky finger on the corner of the shelving." When asked to describe in detail the position of his hand relative to the metal cabinet when he hit his hand, he advised he was at an angle to the shelf and when he got closer, he noticed the additional work and reacted. "He threw his hands up in the air, swearing, palm side down and on his way down, his pinky finger hit the corner of the shelving."

On August 1, 2018, Compensation Services received a copy of the June 6, 2018 Doctor First Report, in which the treating physician noted the worker's subjective complaints of right fifth finger tenderness "after hitting metal object." The worker's description of the incident or injury was blank and the worker was diagnosed with a mild finger trauma. On August 2, 2018, Compensation Services spoke with the co-worker, who confirmed that he did not witness the act that caused the worker's injury, only that he heard the worker arguing with his supervisor, then very shortly after that he heard a loud bang on the metal cabinet. After the loud bang, the co-worker witnessed the worker "…screaming and waving his arms" then proceeding into the supervisor's office.

On August 2, 2018, Compensation Services advised the worker that the new information had been reviewed and they had determined that his claim remained unacceptable. Compensation Services advised that whether the worker intended to strike the surface or unintentionally hit it due to becoming frustrated and animated with his hand, the mechanism of injury was not related to his employment and the duties and tasks he was expected to perform, and the accident therefore did not arise out of his employment.

On September 20, 2018, the worker again requested that Review Office reconsider Compensation Services' decision. The worker submitted that walking and swinging his arms "in an up and down motion" was incidental to his employment and needed for body balance. He noted that he sought medical treatment immediately after the incident, that a co-worker confirmed he heard a loud bang on the metal cabinet, and that he advised his supervisor promptly about the incident.

On November 7, 2018, Review Office determined that the worker's claim was not acceptable. Review Office accepted that an accident occurred in the course of the worker's employment on June 6, 2018. The worker was at work on a scheduled work day. Review Office was unable to find, however, that the worker's injury arose out of his job duties or employment. Review Office noted that the employer had no control over the worker's response to a negative decision given to him by his supervisor just moments before the accident. Review Office determined that the metal cabinet was not a hazard of the employer's premises, but an object that was there when the worker left his supervisor's office angry. Review Office found that the worker's injury was a personal act out of anger, which fell outside the scope of the Government Employees Compensation Act (the "GECA").

On February 6, 2019, a worker advisor appealed the Review Office decision to the Appeal Commission on the worker's behalf and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, his claim is adjudicated under the GECA. Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to paragraph 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.

"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.

The WCB's Board of Directors has established WCB Policy 44.05.20, General Premises, which provides as follows with respect to personal hazards:

7. Personal Hazards

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by:

⃰ a hazard of the premises; or

⃰ an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

Worker's Position

The worker was represented at the hearing by a worker advisor, who submitted additional medical information in advance of the hearing and made an oral presentation at the hearing, a written copy of which was also provided to the panel. The worker responded to questions from his representative and from the panel.

The worker's position was that the evidence supports that he suffered a right hand fifth finger fracture by accident which arose out of and in the course of employment on June 6, 2018 and his claim is acceptable.

The worker's representative noted that Review Office accepted that an incident occurred while the worker was in the course of his employment, but denied his claim because they were unable to find that his injury arose out of his job duties or employment. The representative noted that the presumption in subsection 4(5) of the Act provides that where the accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment. The representative submitted that in this case, there is no evidence to the contrary on which to disallow the worker's claim.

The worker's representative submitted that, among other things, there was no evidence to support that the cause of the accident or injury was that the worker was engaged in personal activities not related to his employment. In their view, there was definitely an employment connection to the reported activity the worker performed, which caused the accident and injury. The representative noted that the worker explained to the WCB on July 27, 2018 that he was walking towards his work area to do flyers, having just finished sorting six different flyers into bundles. When he got to his work area, he noticed there were more flyers sitting on the shelves. He was using his arms when speaking, and when he raised his arms, he swung his hand from down to up and knocked his right hand, pinky finger on the corner of the shelving. He reported that it was loud when he knocked his hand. A co-worker confirmed that he did not witness the act but did hear a loud bang.

The worker's representative submitted that there is no evidence that counters the worker's description of the accident and the injury that arose from these employment duties. There is no evidence to the contrary on which to disallow the claim based on the presumption legislation.

In conclusion, it was submitted that when the WCB accepted this claim as an accident occurring in the course of employment, the legislative presumption that the worker's injury arose of the employment, unless the contrary can be proven, applied. The worker's representative submitted that the WCB has not proven the contrary, that the injury was remote from the employment. The claim therefore satisfies subsection 1(1) of the Act and is acceptable.

Employer's Position

The employer was represented by their Specialist in Human Rights. The employer's position was that the worker's injury was driven by an emotional outburst which was within the worker's control and not incidental to his employment, and his appeal should be denied.

The employer's representative stated that there was no dispute that the worker injured his right pinky finger at work on June 6, 2018. The employer believed, however, that the situation could not be considered incidental to the worker's employment and his claim was not acceptable under the GECA.

The employer's representative submitted that the worker's initial description of the incident on June 6 changed once his claim was denied, and that the initial statement should be given greater weight as it was contemporaneous. She further submitted that the witnesses' statements put the worker's description of the injury and mechanism of injury into question.

The employer's representative noted that the x-ray confirmed that the worker suffered a comminuted fracturing which, she submitted, would have required significant force. She noted that the witnesses' statements indicated that they heard a bang, and submitted that for others to have heard a bang, there had to have been a degree of force when the worker's finger hit the shelving. The witnesses' descriptions of the worker being angry, upset and swearing were also consistent with a degree of force.

The employer's representative submitted that the evidence as the whole is inconsistent with the worker's description of what occurred. The representative submitted that it is more likely than not that the worker hit or banged the shelving with his hand out of anger or frustration. In this situation, the metal shelving was not a hazard of employment, it was simply there, and the management of the worker's emotions lay entirely within his control. As such, the situation could not be considered as incidental to the worker's employment and did not fall within the scope of the GECA.

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. For the reasons that follow, the panel is unable to make that finding.

The panel accepts that the worker suffered an injury to the fifth finger of his right hand in the course of his employment on June 6, 2018. The evidence indicates that the accident occurred on the employer's premises during his regular work hours. The employer's representative also indicated at the hearing that the employer did not dispute that the worker injured his pinky finger at work that day.

The panel is not satisfied, however, based on the evidence which is before us, that the injury to the fifth finger of the worker's right hand arose out of his job duties or employment.

In arriving at that conclusion, the panel notes that there were numerous inconsistencies in the worker's description of the incident on June 6, 2018. The worker was interviewed several times in the course of the file with respect to the mechanism of injury, and his account of what happened differed each time. The panel notes that the worker suggested several explanations as to how errors or inconsistencies in the evidence may have occurred. The panel has considered those explanations, but is unable to reconcile the changes or differences in the various accounts of his injury based on those explanations.

At the hearing, the panel questioned the worker extensively as to the events surrounding his injury on June 6, 2018 and how he had been injured. The worker described the incident and the work site with the aid of an outline of the site which he drew at the same time. With respect to the incident itself, the worker stated that:

…on my way out I kind of switch around, you know, I turn swift to go toward my [work area] to evaluate what more flyers that I got there, to work later on during my end of shift, and on my way there I struck the edge of the metal cabinet…

…as I'm walking, I struck my little finger on the edge here of…the metal cabinet…I was walking toward the cabinet and I kind of poof, I hit it on the edge, as my arm was going up…

…my flyers was done earlier…I just got to evaluate what more flyers I got to do, prepare myself mentally later on to do overtime at the end of the day, because I did prepare those six sets of flyers. I work 20 minutes before my shift.

…As I'm walking I pass it, oh yes, I got to do that. And then when I turn fast I hit the edge, because I was going right in the area. So I'm a bit angled when it happened…because I swift turn to go back there, I was walking fast, I hit it on the edge.

…I was walking fast. So when I walk fast, I guess I need more balance and I hit on the edge as I was, because when you walk, I mean, your arms are there to balance yourself, depending activity you're doing.

…it was saying that I struck my arm down, going down. So I did not hit it down…is impossible to hurt myself walking and hit it down. I hit it going up…Actually it's not even up, it's more like going straight…I strucked it not just going up, but hitting straight as well, because I was walking. If I was not walking it would be different, but I was already walking fast…

The panel is unable to accept the mechanism of injury as described by the worker. The panel is not satisfied that the mechanism of injury and impact as described by the worker would have resulted in the comminuted fracture of his right fifth finger that was clearly diagnosed.

Based on our review of all of the evidence, on file and as presented at the hearing, the panel finds, on a balance of probabilities, that the worker intentionally struck the shelving. The panel further finds that the act of striking the shelving, which resulted in the injury to the worker's hand, was a personal act of self-harm which fell outside the scope of the legislation. Whether the worker acted in anger or not, his action in striking the shelving was outside the realm of his job duties and constituted the type of personal action which removed him from his employment.

The panel notes that in her submission on the appeal, the worker's representative referenced and relied on the presumption clause which is set out in subsection 4(5) of the Act as a possible basis for our acceptance of his appeal. Subsection 4(5) states that where the accident arises out of the employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven; and where the accident occurs in the course of employment, it shall be presumed that the accident arose out of the employment unless the contrary is proven.

The panel finds that subsection 4(5) of the Act does not apply in this case. The panel is satisfied that there is ample evidence available for our consideration of both the "arising out of" and "in the course of" employment issues, and the panel is able to make findings, on the evidence, on both these elements.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's injury did not arise out of the worker's employment. The two-part test for a compensable accident as set out in subsection 4(1) of the GECA and subsections 1(1) and 4(1) of the Act has therefore not been met, and the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of February, 2020