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 is not acceptable. A hearing was held on March 3, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker reported an incident to the WCB on December 14, 2018 stating that on December 5, 2018, he injured his right shoulder in a motor vehicle accident in the course of his work when the truck he was driving "jackknifed." Emergency services were called and the worker reported "They checked me and said I was okay." The employer submitted an Employer's Accident Report to the WCB on December 18, 2018 noting that when the worker reported the incident to them, he did not indicate he sustained an injury.

On December 14, 2018, the worker sought treatment from a chiropractor, reporting that he injured his right shoulder "…when leaving my truck I fell and hit my shoulder on the ground…." The chiropractor noted decreased range of motion and recommended further chiropractic treatment.

In discussion with the WCB adjudicator on January 9, 2019, the worker confirmed the incident, advising that he called his supervisor who drove him home and that he iced his right shoulder because it was sore. After a couple of days, he went to his chiropractor for treatment of the sore shoulder. No x-rays were taken. He further advised that he had not returned to work since the accident as his employer had told him not to due to other employment issues. At that time, the worker stated that his shoulder was doing much better and he believed he would be cleared to return to work by January 14, 2019.

The WCB adjudicator also spoke to the employer on January 9, 2019 who advised that the worker had been terminated from his employment on December 6, 2018 due to performance issues. Further, the employer advised they spoke to the worker on December 19, 2018 and he reported that his pain from the incident began on December 12 or 13, and that was when he attended for treatment.

On January 10, 2019, the WCB adjudicator again spoke to the worker who confirmed that he was examined by the emergency personnel who attended at the accident and no issues were noted. Further, he advised that his shoulder started hurting about 30 minutes after the accident. The worker advised that he thought his shoulder would get better but when it didn't, he sought treatment with his chiropractor on December 14, 2018.

On January 22, 2019, the WCB advised the worker that his claim was not acceptable as the evidence did not support that he sustained an injury arising out of or in the course of his employment.

The worker requested reconsideration of the WBC's decision to Review Office on January 27, 2019. In his submission, the worker noted that his shoulder started hurting after the accident and then he sought medical treatment when the symptoms continued. Review Office requested and received on March 27, 2019, a copy of the report from emergency services from the date of the accident. The report was provided to the worker on March 27, 2019 and he provided a further response on April 4, 2019.

Review Office determined on April 10, 2019 that the worker's claim was not acceptable. Review Office considered the worker's various reports to the WCB as well as the employer's report and the report from the emergency services personnel who attended at the accident scene, noting inconsistencies among these. Review Office also found the worker's delay in reporting his injury to the employer and seeking medical treatment made it difficult to establish that the worker sustained an injury from the workplace accident and as such, his claim was not acceptable.

The worker filed an appeal with the Appeal Commission on April 16, 2019 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 under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment. When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.

Worker’s Position

The worker represented himself in the hearing, accompanied by his sister as an observer.

The worker described to the panel the mechanism of the injury that he stated occurred in the course of his employment on December 5, 2018 when the truck he was driving jack-knifed and slid off the road. The worker also answered questions put to him by members of the panel.

On questioning by members of the appeal panel, the worker indicated that after the vehicle came to a stop, he got out to check the gas tank. He described stepping out with 3-points of contact and stated he did not slip as he left the vehicle, but slipped as he was walking around the vehicle. The worker also indicated that as the trailer jack-knifed, he was jostled in the cab at the point of impact between the tractor and trailer.

The worker advised that he remained at home, inactive from December 5-14, 2018. During this time, he had pain in his shoulder that he treated by icing it. At first, he said, he thought it was just muscle pain.

The worker’s position is that as a result of the incident on December 5, 2018, he injured his shoulder. When the resulting pain did not go away, the injury was treated by chiropractic treatment. The claim should therefore be accepted.

Employer’s Position

The employer was represented in the hearing by an advocate and its Human Resources officer.

The employer’s advocate outlined the employer’s position that the evidence does not establish that the worker was injured as a result of the incident that occurred on December 5, 2018. The advocate noted that the worker did not report any injury to the employee who came to the scene to give him a ride and did not report any injury to the ambulance personnel at the scene. When the worker returned to work, he did not report any injury to the employer, as evidenced by the December 5, 2018 workplace incident report.

The employer’s advocate noted that the employer did not learn of the injury until December 18, 2018 when it received the WCB injury report. The advocate noted that the worker was dismissed from his employment on December 6, 2018 due to performance issues and that the employer would not have terminated the worker’s employment had they known he was injured.

The employer’s advocate noted inconsistencies in the reporting by the worker of the onset of symptoms.

The employer’s position, in sum, is that the evidence does not support that the worker was injured as a result of the accident and the appeal should therefore be dismissed.

Analysis

The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker here, the panel must determine that the worker was injured a a result of an accident arising out of and in the course of his employment. The panel was not able to do so for the following reasons.

For the purposes of this claim, the relevant portions of the definition of an accident under the Act include two components that must both be present for the claim to be acceptable. First, there must be evidence of a chance event with a physical or natural cause including any event arising out of and in the course of employment. Second, there must be evidence that as a result of such an event, the worker is injured.

The facts here establish that on December 5, 2018, a chance event occurred arising out of and in the course of the worker’s employment. On that date, a truck driven by the worker in the course of his employment jack-knifed and slid off the road. Photos of the scene taken by another employee of the employer and provided to the panel by the employer’s advocate show the truck that the worker was driving situated with the tractor in the ditch and the trailer on the road, in a jack-knife position.

The panel is satisfied that the evidence supports that a chance event occurred, so that the first part of the definition of an accident is established.

The second part of the definition of an accident requires that there be an injury as a result of the chance event. The evidence with respect to whether the worker was injured as a result of this event is less clear.

The report from the emergency services personnel attending at the scene shortly after the event indicate that the worker refused medical treatment and reported that he had no injuries, no complaints of discomfort or pain, no headache or dizziness and was responding appropriately. The panel noted that the report indicated a thorough assessment was conducted.

The worker called the employer and an employee came to the scene to give him a ride back to the employer’s premises. The worker did not report any injury to that employee and was noted to have carried his possessions from the tractor to the employee’s truck. In an incident report completed for the employer on the same date, there is no mention of any injury. The report signed by the worker states that the worker gave a report to the paramedics “to ensure there were no injuries”.

It was not until the worker reported the incident to the WCB on December 14, 2018 that he stated that he felt sore at the time and planned to see a chiropractor. On the same date, the worker saw a chiropractor and reported falling as he left the truck because it was slippery and that he hit his shoulder on the ground, causing pain that worsened thereafter. The Chiropractor First Report from that assessment diagnosed a right rotator cuff sprain/strain injury.

On January 9, 2019, the worker advised the WCB adjudicator that he had a sore right shoulder on the day of the incident and used ice on it afterward. He stated that the shoulder became very sore after two or three days and he sought chiropractic treatment on December 14, 2018.

On January 9, 2019, the employer advised the WCB that the worker told them, on December 19, 2018 that the pain started on December 12 or 13 and he then sought treatment. The employer provided a copy of a Workplace Incident Report completed by the employer on December 19, 2018 that sets out that the worker’s pain only started about 1 week after the accident and there was no immediate pain after the accident.

On January 10, 2019 the worker advised the WCB adjudicator that his right shoulder become sore approximately 30 minutes after the ambulance left and that he used ice on his shoulder over the next few days. He reported he thought the pain would go away and didn’t seek treatment until December 14 as a result.

In the hearing, the worker reported that he hurt his shoulder when he slipped getting out of the truck, but felt fine at the time. On further questioning by panel members, he stated that he didn’t slip on getting out of the vehicle but slipped when walking around the vehicle to check it. As well, the worker noted that when the trailer jack-knifed, he was jostled at the point of contact between the trailer and the tractor.

The panel noted inconsistencies in the worker’s reporting, both in terms of mechanism of injury and in terms of when his symptoms arose. The panel also noted the worker delayed in reporting the injury to the WCB and in seeking medical treatment until 9 days after the incident occurred. While the panel acknowledges that symptoms may not always arise immediately upon an injury occurring, the delay in seeking treatment and reporting to the WCB creates a gap in the chain of causation.

The evidence does not establish, on a balance of probabilities, that the worker was injured as a result of the incident that occurred in the course of his employment on December 5, 2018. As a result, the panel cannot find that an accident occurred, as defined by the Act and as is required to establish an acceptable claim for compensation.

The claim is therefore not acceptable. The appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of April, 2020