The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on February 4, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on May 21, 2019 indicating they injured their lower back in an incident at work on May 14, 2019. The worker described attempting to grab an item out of a truck when their hands slipped off the package and they fell backwards. The worker described landing on gravel and mud with both back and buttocks hitting the ground at once.

The worker saw a family physician on May 16, 2019, who recorded the worker’s complaints of continuous ache in their lower back with tightness. After examining the worker, the physician noted decreased range of motion and swelling on the right side of the worker’s lower back. The physician recommended restrictions, referred the worker for physiotherapy and suggested the worker remain off work.

On May 23, 2019, the WCB spoke to the worker’s manager who provided further details of the events of the date of accident and beyond. The worker’s manager advised the WCB the worker did not advise the employer they would not be in on May 15, 2019. The manager spoke to the worker on May 16, 2019, who advised they missed work on May 15, 2019 due to being tired from the previous day but did not mention to the manager that they had been injured the previous day or indicate they were in pain. The employer also advised the worker that due to damage to a vehicle the worker used the previous day, there was no work for them that day. The manager confirmed the worker called in again later on May 16, 2019 to advise they sought medical treatment as they had injured their back the previous day and required at least the next 10 days off work.

The WCB contacted the worker on May 23, 2019 to further discuss the claim. The worker confirmed the mechanism of injury as described on the Worker Incident Report and described their pain following the accident as feeling “…like there is a belt around [my] lower back (lumbar) and someone is tightening it…”, with the pain increasing as the evening progressed. The worker advised they contacted the employer the morning of May 15, 2019 to advise they would not be in that day and left a message, noting they did not want to leave a message with the person who answered the phone about their injury and wanted to speak to their manager, which did not happen until May 16, 2019.

On May 29, 2019, the WCB advised the worker it could not be established they sustained an injury at work on May 14, 2019 and as such, the claim was not acceptable.

The worker requested reconsideration of the WCB’s decision to Review Office on December 9, 2019. In the Review Office submission, the worker noted they failed to realize the extent of their injury until after seeking medical treatment, at which point the treating physician recommended they make a WCB claim. On receiving this advice, the worker contacted the employer to advise of the workplace accident. The worker believed they followed the correct protocol for reporting injuries according to their employer and as such, their claim should be accepted.

On February 18, 2020, Review Office found the worker’s claim was not acceptable noting several inconsistencies in the worker’s reporting of the workplace accident and aspects of the report of the worker’s claim. Review Office could not establish the worker sustained an injury due to an accident arising out of and in the course of their employment.

The worker’s representative filed an appeal with the Appeal Commission on April 2, 2020. A teleconference hearing was arranged for February 4, 2021.

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. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury or medical aid is required to cure and provide relief from injury arising out of a compensable accident or other compensation as provided for under the Act.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by panel members.

The worker`s position, as outlined by the worker advisor, is that as a result of the fall that occurred arising out of and in the course of the worker undertaking their job duties on May 14, 2019, the worker suffered injury to their lower back. The injury was reported to the employer on May 16, 2019 and the worker sought appropriate medical attention the same day. Soon thereafter, the worker reported the claim to the WCB. Having met their obligations in respect of reporting and seeking medical attention for the injury that resulted from the workplace accident, the worker’s claim should be accepted.

The worker described to the panel how the injury occurred, indicating that at the time, the worker was delivering packages of lengthy material and had to pull it out of the vehicle. To do so, the worker put one foot on the vehicle bumper to brace themselves as they reached into the vehicle and pulled out the materials. The other foot, on the ground, slipped and the worker fell, landing on their lower back and buttocks. The worker indicated this happened while pulling out the second last bundle of materials. They completed the delivery and then drove the vehicle back to the employer’s compound to park it, punch out and leave the keys before heading home.

The worker explained that they did not advise the employer of the accident on the day of the injury as there was no one at work when the worker returned for the day. The next day, the worker woke feeling too sore to work. They called into work in the morning to advise they would not be coming in but did not speak to the manager to report what had happened. The same day, the worker called to book an appointment with their physician.

When the worker next spoke with the manager early on May 16, 2019 the worker did not advise of the injury as the conversation at that time focused on the condition of the vehicle the worker was driving on the date of the accident. The worker, in their testimony, indicated they did not recall asking the employer during this conversation if there was work available or another vehicle that the worker could drive that day. The worker recalled only that this was the date they sought medical attention relating to the fall and noted that the medical appointment with their regular family physician was made the previous day so that it would not make sense to have asked about work availability on May 16, 2019 as the employer suggested took place.

The worker confirmed that upon seeking medical attention, the worker’s physician brought it to the worker’s attention that a WCB claim should be made. The worker then reported the accident to the employer on the same date, after the medical appointment took place.

With respect to the employer’s allegation that the worker only reported an accident resulting in injury after being advised that they had damaged the work vehicle on May 14, 2019, the worker advised the panel that the vehicle was previously in poor condition with body damage at the rear as well as a non-functioning gas gauge. The worker noted that they had only started this job in late April 2019 and that the training did not include daily completion of vehicle inspection sheets or use of specified forms to request repairs. The worker stated that they advised the employer of the need for repair to the vehicle prior to the date of the accident.

In sum, the worker’s position is that the appeal should be granted as the evidence supports a finding that the worker was injured as a result of an accident that occurred arising out of and in the course of employment on May 14, 2019.

Employer’s Position

The employer was represented in the hearing by a manager and a human resources director. The employer’s representatives outlined the employer’s position in an oral submission and answered questions posed by members of the appeal panel.

The employer’s position is that the evidence does not support a finding that the worker was injured as a result of an accident arising out of and in the course of employment.

The employer noted that the timing of the worker’s report of injury to the employer to be suspicious, in that the worker reported the accident only after the employer noted damage to the vehicle driven by the worker on the date of the reported accident. The employer suggests the worker’s report of a fall and resulting injury is therefore not credible. The employer’s manager noted that the worker did not call reporting injury on May 14, 2019. On May 15, 2019, the worker did not attend work and did not report a work injury. On May 16, 2019, the worker was informed of the damage noted on the vehicle and later the same day, the worker reported injury.

The employer’s human resources director indicated they reviewed parking lot surveillance video and did not note any visible damage to the vehicle driven by the worker on departure on May14, 2019 but when the vehicle was examined the next day, the damage was noted. The employer’s manager noted that there are daily vehicle inspection sheets in each vehicle as well as repair request forms to be completed, but that none had been submitted by the worker prior to the date of the accident.

The employer further commented that the worker’s physician recorded the worker fell out of a 5-ton truck but that the worker was driving a 1-ton truck on the date of the accident. The vehicle the worker was driving was low enough to the ground that the worker would not be required to step into the rear box area to remove items for delivery but should be able to do so from the ground.

The employer’s representative also noted that the worker drives a sport-model vehicle that is low to the ground. The manager stated that the worker attended work a few days after the reported injury driving this particular car and that, on observation of the worker getting out of and into the car, no signs of injury were evident.

In sum, the employer’s position is that the decision of the Review Office should be upheld, and the worker’s appeal should be denied.

Analysis

The issue for determination by the appeal panel is whether or not the claim is acceptable. In order to grant the worker’s appeal, the panel would have to determine that the worker was injured as a result of an accident that occurred arising out of and in the course of employment. The panel was able to make such a finding, as outlined in the reasons that follow.

The panel heard from the worker directly as to how the accident occurred, noting the worker’s evidence that there were not any witnesses to the fall. The panel noted that the worker’s testimony as to how the injury occurred is consistent with the information recorded in the Doctor First Report, as well as in the accident report to the WCB of May 21, 2019.

The medical reporting confirms that the worker sought medical treatment for injury to their lower back on May 16, 2019 and provides evidence of findings that correlate with a traumatic lower back injury, including decreased range of motion on bending forward and swelling on the right side of the worker`s lower back. While no pre-existing conditions were reported at that time, later reporting to the WCB from the treating family physician and based on an x-ray taken in November 2019 confirmed that the worker also has advanced degenerative disc disease. The panel noted that there is no suggestion that this condition was in any way impacted by the worker`s fall. The physician confirmed in a report dated January 26, 2021 that the worker`s symptoms improved over time.

The panel does not share the employer’s suspicion regarding the timing of the worker’s accident report and accepts the worker’s explanation as to why the injury was not reported to the employer until after the medical appointment took place, noting that this was less than 48 hours after the accident occurred.

The evidence before the panel supports a finding that the worker was injured as a result of an accident that took place arising out of and in the course of completing their job duties on May 14, 2019. The evidence confirms the worker sought medical attention within less than two days of the injury. The medical reporting supports the conclusion that the worker was injured as a result of that accident, and that the mechanism of injury reported is consistent with the clinical findings. The worker reported the injury to the employer soon after seeking medical attention and to the WCB within a few days thereafter.

The panel is therefore satisfied based on the evidence before us, and on the standard of a balance of probabilities, that the claim is acceptable. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of February, 2021