The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. A videoconference hearing was held on February 9, 2022 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On May 27, 2021, the worker filed a Worker Incident Report with the WCB, indicating he injured his right wrist, arm and neck in an incident at work on May 25, 2021 when he was trying to open the back door on a dumpster bin. The worker reported that:

I pushed with some force with right my hand (sic) and I felt a pop in my wrist. Then I felt pain in both my wrist and palm of my hand. 

I did not think too much of it at first but the pain progressively got worse throughout the day. 

I texted [owner] when I got home from work and told him what happened. 

He told me to ice my hand and we would play it by ear for me working the next day. 

When I woke up in the morning, the pain was worse and my forearm was now hurting as well. 

I went to work and did my job to the best of my ability with only using one hand. But there were still times I had to use my right hand.

The worker reported he worked the full day on May 26, 2021, but had to leave work early on May 27, 2021 to seek medical treatment due to increased symptoms.

The employer also provided the WCB with an Employer's Accident Report on May 27, 2021, noting the worker was "…opening up a bin and it was really tight. He pushed on it to get it open, and his right wrist popped." The employer expressed concerns with the worker's claim, noting they could accommodate the worker with light duties and could provide transportation if the worker was unable to drive himself to work. The WCB spoke with the employer on May 28, 2021, and they determined that while modified duties were available, these would not be appropriate for the worker.

The worker was seen by a family physician on May 27, 2021, and reported increasing pain in his right hand, wrist and arm and right side of his neck since the workplace accident on May 25, 2021. The treating physician indicated the worker was unable to make a fist or spread his fingers full, that the tendons on his palm were tender and he had limited range of motion on the right side of his neck. The physician provided a diagnosis of tendinosis and muscular strain and recommended the worker remain off work until June 4, 2021.

On June 3, 2021, the WCB accepted the worker's claim and payment of various benefits started. On June 4, 2021, the worker advised the WCB that he had been terminated from his employment.

On June 5, 2021, the worker attended for an initial physiotherapy assessment, following which the physiotherapist provided a diagnosis of a right wrist sprain and a strain of his right supraclavicular area. On June 6, 2021, the worker was seen by a sports medicine physician. It was noted that the worker reported he injured his right wrist while trying to open a truck door at work and that he felt a pop to his wrist, with immediate pain on his posterior wrist. The worker also reported decreased grip strength and weakness. On examination, the sports medicine physician diagnosed the worker with an acute TFCC (triangular fibrocartilage complex) tear, recommended physiotherapy and functional bracing, and referred the worker for an MRI. The physician also recommended restrictions of desk work only and no lifting with the right arm for the next three weeks.

On June 15, 2021, the WCB provided the employer with a decision letter setting out details of their decision that the claim was acceptable.

At a follow-up appointment with the treating sports medicine physician on June 29, 2021, the worker reported continued pain in his right wrist. An MRI of the worker's right wrist was performed on July 15, 2021.

On July 12, 2021, the employer submitted a video and a photograph of the bin the worker was attempting to open on May 25, 2021. On July 17, 2021, the employer requested that Review Office reconsider the WCB's decision to accept the worker's claim. The employer noted their concerns with the worker's claim, including the worker's delay in reporting the incident to the employer and that the bin that reportedly caused an injury was inspected by the employer and found to be in perfect shape.

On September 13, 2021, Review Office determined that the worker's claim was acceptable. Review Office found the evidence supported some force was required for the worker to open the bin door and could have resulted in a workplace accident. Review Office further found the worker's delay of a few hours in reporting the workplace accident was not significant, and that when reviewing the totality of the evidence, concluded that the worker sustained a workplace injury on May 25, 2021 and his claim was acceptable.

On October 5, 2021, the employer appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a personal injury by accident arising out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides general information on the meaning of the phrase "arising out of and in the course of employment", and states, in part, that:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Employer's Position

The employer was represented by its owner, who made an oral submission at the hearing and responded to questions from the panel. The employer's position was that the worker did not suffer an injury in the workplace and the claim should be denied.

The employer's representative submitted that there were too many inconsistencies in the worker's story and in his behaviour with respect to his injury. The representative stated that the worker had worked for the employer for three years and what was said to have occurred at work did not make sense based on how the worker had conducted himself over the previous three years or from a logical point of view.

The employer's representative noted that the worker claimed the injury occurred mid-morning on Tuesday, May 25, 2021, being the day after the May long weekend. The representative said the worker had previously told him about his plans for this weekend, and that he was sure the worker was injured over the weekend, although he admittedly did not have proof of this.

The employer's representative said they are very particular about their equipment and keep their bins "in tip-top shape." He noted they had sent a photograph and a video of the bin in question to the WCB to show that the bin, which was less than one year old, was in perfect working order and was very easy to open and close. The representative said there had been no previous injuries with respect to the bins they used, and the only person to have injured himself had been the worker on this occasion.

The employer's representative submitted that the worker was very familiar with what to do when there was a damaged bin or piece of equipment; that employees were to report the problem and the employer would not allow the bin or equipment to be used again until it had been assessed and fixed. In this case, however, not only did the worker not record the bin number or call to have the bin taken out of service, he also delivered it to another client. This was particularly concerning as it would have put the client and any driver who subsequently picked up or worked with that bin at risk. The representative said he did not understand how one could injure oneself on a piece of equipment, not report it, then deliver it to another client, knowing it was not safe.

The employer's representative stated that the worker was always communicating with him during the workday, and would call him about everything, big or small, yet in this instance he did not call or inform him of his injury until nine hours later, when he texted him. The representative noted that this was at least three hours after the worker got off work. The representative submitted that if the worker had indeed injured himself at work, he would have called him immediately after the injury occurred as he had done in the past.

The employer's representative further noted that the information the worker provided when he reported his injury was vague. Although he had not noted the number of the bin he had been working with, the employer was subsequently able to locate the bin and inspect it, and found that it was in good condition, and that there was nothing wrong with it or out of the ordinary which might have led to an injury.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, 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 employer's representative indicated at the hearing that he believes the worker injured himself over the long weekend. He noted that the worker had told him he would be out of town that weekend and had referred to various activities which were planned or would be available to him at that time. The representative acknowledged, however, that he did not have any proof as to what the worker had in fact done over the weekend or as to whether he had been injured at that time. In the circumstances, the panel finds that the representative's belief that the worker was injured over the weekend is entirely speculative, and is unable to accord it much weight.

Based on our review of all of the evidence which is before us, the panel is satisfied that the incident as described in the Worker Incident Report occurred. The panel reviewed the video which the employer had provided and questioned the representative at length at the hearing with respect to how the bins work, and in particular, what the worker had to do to open the bin doors, and how the bin and the worker would have been positioned at that time. The panel is satisfied that the worker's description of this process, as indicated on the file, is consistent with what the employer representative described at the hearing.

The panel further accepts the worker's explanation as to what happened at work on May 25, 2021. The panel acknowledges the employer's concern with respect to how the injury was said to have occurred, particularly as the worker was working with a new bin, which was subsequently assessed and found to be in perfect order and easy to open. The panel notes that in discussion with the WCB adjudicator with respect to the employer's concerns, the worker explained that there had been issues in the past with respect to some of the bin doors, and he would generally recognize which handles are tight and needed some force to be opened. He further indicated that he did not recognize the bin he was dealing with on May 25 and was used to having to apply some force to open the bin doors.

The panel is satisfied that the mechanism of injury is consistent with the diagnosis of a wrist tendon strain. The panel notes that is supported by the opinion of the WCB medical consultant who reviewed the worker's file on September 10, 2021, and opined that

…the described mechanism of injury of pushing with the wrist against force, in conjunction with the clinical presentation described by the treating sports medicine physician close to the time of injury, appears concordant with a wrist tendon strain…

While the employer also expressed concern that the worker did not report his injury immediately, the panel notes that the file information indicates the worker was able to continue performing his job duties following the incident, and did so. The representative also noted at the hearing that the worker did not have to load or lift anything or do anything physical on May 25, 2021 other than dump the one bin.

The evidence further shows that the worker texted the employer that evening after he returned home from work to report his injury. The worker thus reported his injury the same day, and the panel is satisfied that the fact that the worker had not reported his injury earlier in the day did not mean that the workplace incident and injury did not occur.

As a 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.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of April, 2022