Decision #56/22 - Type: Workers Compensation


The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on April 20, 2022 to consider the worker's appeal.


Whether or not the claim is acceptable.


The claim is not acceptable.


On May 20, 2020, the worker filed a Worker Incident Report with the WCB reporting injury to their hand that occurred on May 4, 2020 and was reported to their employer on May 11, 2020. The worker advised that due to an increase in their workload, they experienced symptoms in their right hand approximately around May 4, 2020. The worker advised they thought their hand would heal but when it did not, they sought medical treatment on May 19, 2020.

The WCB spoke with the employer on June 4, 2020. The employer advised the WCB the worker had been terminated on May 4, 2020 and had not at that time reported an incident occurred. The employer further noted the worker had continued to work and there was no time loss, but the worker had recently sent a message which stated they had sustained a minor injury as a result of various added work, which caused pain in their right hand.

When the worker contacted the WCB to discuss their claim on June 15, 2020, they advised they reported to their employer they were having difficulties with their right hand but were still able to perform their job duties. They could not recall a specific incident that occurred to cause the pain in their right hand or a specific date when it may have occurred and could only recall the pain starting approximately May 4, 2020. The worker confirmed there was not an incident, just pain that "…accumulated more and more." The worker further advised the WCB they attended for medical treatment with their chiropractor on May 19, 2020. When asked to describe where the pain was, the worker described their upper arm from their shoulder to their elbow but could not describe what kind of pain. The worker also provided a list of their job duties and could not provide a specific duty that caused their hand pain, only that it was caused by "Lots of work and accumulated pain." The WCB advised the worker that based on the information provided, their claim could not be accepted but further information from their chiropractor and their employer would be obtained.

On June 15, 2020, the employer advised the WCB that the worker had not been terminated due to their injury but due to employment-related issues. The employer advised they had set up a meeting with the worker to discuss the termination when the worker advised them of their injury. The employer further advised they would provide the WCB with their report shortly. On the same date, the WCB contacted the worker's chiropractic clinic to request a copy of the report for the May 19, 2020 appointment but was advised the worker had not been seen that day and did not have an appointment scheduled.

The employer provided an Employer's Incident Report to the WCB on June 16, 2020, indicating the date and description of the incident as unknown. With the Report was a copy of a May 11, 2020 email from the worker to their supervisor advising they were going to see a doctor that day or the next for pain in their right hand that developed the week before from "various works". A May 15, 2020 email from the worker was also provided indicating they had attempted to let their hand heal naturally but as that didn't happen, they were seeking medical treatment with an appointment on May 19, 2020. The employer further provided A Notice of Injury to Employer completed on May 15, 2020 by the worker, indicating they did not know the precise location and it was "general work related" and describing "Pain in the right hand. Not very serious." The employer also provided the WCB with a copy of the worker's job description.

The WCB advised the worker on June 19, 2020 their claim was not acceptable as a specific incident or event was not identified by the worker as the cause of their right hand pain and their injury could not be confirmed by a healthcare provider. The worker indicated the incident involving their hand took place in May and described moving a large garbage bin alone that normally required two people to move. They reported feeling pain the day they performed that duty but felt better overnight. On June 19, 2020, the worker provided a follow-up email advising they had experienced similar pain in their hand during the previous winter as the garbage bin was very heavy. The worker noted they had been advised the employer normally provides helpers to assist with that task, but they had performed it by themselves.

On August 7, 2020, the worker's treating chiropractor provided their Chiropractor's First Report to the WCB for the worker's appointment on that date. The worker reported injuring their right

shoulder while pushing a garbage cart at work, with the date of accident indicated as May 1, 2020. The chiropractor found the worker had decreased range of motion in their right shoulder and point tenderness in their trapezius area and provided a diagnosis of an acute right shoulder sprain/strain.

On August 31, 2020, the worker requested reconsideration of the WCB's decision to Review Office noting they were injured at work but could not recall the specific date. The worker went on to note they sought medical treatment and had been attending for treatment with their chiropractor once or twice a week. In a decision dated October 14, 2020, Review Office upheld the WCB's decision the claim was not acceptable noting that the chiropractor's report was provided three months after the reported May 1, 2020 date of accident and did not support the worker was injured at work. Further, Review Office found the worker had reported a cumulative injury to their right hand and had not reported a right shoulder injury to their employer or the WCB. As such, Review Office agreed with the WCB's decision it could not be established the worker sustained an injury in the course of or arising out of their employment.

The worker filed an appeal with the Appeal Commission on December 15, 2021. A hearing took place at the Appeal Commission on April 20, 2022.


Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 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. The Act defines “accident” in s 1(1) 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 appeared in the hearing on their own behalf and provided a submission to the panel. The worker also provided testimony through answers to questions posed to them by panel members.

The worker’s position is that the WCB incorrectly determined that there was no injury arising out of the worker’s job duties and that the claim should be accepted as they were injured as a result of undertaking their regular job duties in early May 2020.

The worker advised that they sought chiropractic treatment after the injury occurred and were provided with a medical note and treatment plan for the following four weeks and stated that this confirms they were injured. The worker stated that the fact they could continue to do their job does not mean they were not injured.

In response to questions posed by members of the appeal panel, the worker indicated that their duties increased with the declaration of the Covid-19 pandemic. Specifically, the worker was required to undertake additional disinfection of common areas in the premises under their care, including wiping all surfaces although they were no longer permitted to do minor maintenance work in the private areas. The worker also stated it was their understanding when they were hired that other staff would be available to assist but that wasn’t the case. The worker further indicated that they also had outdoor spring-cleaning tasks to complete and were very busy at the time the injury occurred. The worker described two particularly heavy tasks they engaged in prior to the injury – pushing a heavy garbage bin and unplugging a garbage chute. They stated to the panel that they guessed one or both of these tasks caused or contributed to the pain.

The worker advised the panel that they did the daily exercises provided by the chiropractor. They still have an injury although the acute pain is now gone. The worker described to the panel that initially they had daily acute pain but that is no longer the case although certain tasks still cause an increase in pain, that goes away with rest.

The worker confirmed they initially saw a chiropractor in relation to this injury on May 19, 2020 and then saw another chiropractor on August 7, 2020. The worker indicated to the panel that although they used the word “hand” in describing their injury, they meant their shoulder. The worker could not confirm whether they told the first chiropractor that they were injured at work and stated that they likely told the chiropractor it was related to the garbage bin or chute. The worker admitted that at that time they were not thinking of making a WCB claim and perhaps they didn’t tell the chiropractor that the injury happened at work. The worker further confirmed they did not follow up with the initial treating chiropractor and next sought treatment in August from a different chiropractor.

In sum, the worker’s position is that as undertaking their work activities caused them to sustain injury to their right hand/shoulder and to require medical treatment for that injury, the claim should be accepted, and the worker’s appeal granted.

Employer’s Position

The employer was represented in the hearing by a senior manager who provided an oral submission on behalf of the employer.

The employer’s position is that the claim should not be accepted as the worker did not report an injury arising out of their work and the worker’s injury did not affect their ability to do their job.

The representative noted that they are charged with regular communication with those employees working in the same role as the worker and they did not receive any report of an injury or incident at the time the worker claims it occurred. Had the worker advised of injury at that time, the employer would have offered other less strenuous tasks and would not have terminated the worker’s employment as of May 11, 2020. The employer’s representative stated that the worker knew they would get assistance with their duties if they asked.

The employer’s representative noted that the employer has a good safety program in place for its employees. While the employer understands the worker had concerns about job loss if they were injured, the worker also was aware that they could ask for help or modify their work as required.

In sum, the employer’s position is that the claim should not be accepted as there is no evidence to support the worker’s claim that they were injured as a result of completing their work duties in early May 2020.


The issue on appeal is whether the claim is acceptable. For the worker’s claim to be accepted by the WCB, the panel must find that the worker sustained injury as a result of an accident as defined by the Act. The Act defines an accident as “a chance event occasioned by a physical or natural cause” that includes “any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment” and as a result of which, the worker is injured. On the evidence before us, the panel was not able to make such a finding for the reasons that follow.

The panel considered the available medical reporting to determine whether there is evidence that an injury occurred. We noted that the initial treating chiropractor did not submit a report to the WCB suggesting that the worker did not relate their symptoms to their work. Although the WCB was unable to obtain confirmation from the initial treating chiropractor that the worker attended for treatment on May 19, 2020 as the worker stated, the panel is prepared to accept the worker’s testimony in this regard. But we also noted that the worker could not confirm they advised the chiropractor of any work-related circumstances or incident that led to the symptoms they were experiencing and find, on the facts before us, that is it likely the worker did not report any work-related cause at that time. When the worker next attended for chiropractic treatment with a different chiropractor approximately three months later, the chiropractor provided a diagnosis of an acute right shoulder sprain/strain, based upon their findings of reduced range of motion of the worker’s right shoulder and tenderness in the right trapezius, and based upon the worker’s report of injury occurring while pushing a garbage cart at work.

The evidence confirms that the worker reported to their employer on May 11, 2020 that they had sustained a minor injury, which they described as “pain in the right hand that developed last week day by day to max from various works” but did not indicate that this was impeding their work. On the same date, the worker signed a Notice of Injury to Employer indicating injury on May 4-8, 2020 that was “general work related” and developed over the course of that week and worsened over the weekend. The worker confirmed this to be pain in their right hand that was “Not very serious.” Further, on May 15, 2020, the worker advised the employer that due to various added work in the previous week they experienced “gradually increased in pain in the right hand” and would be seeing a doctor on May 19, 2020.

The panel is satisfied that the evidence supports a finding that the worker experienced some symptoms in their right hand/shoulder as first reported to the employer on May 11, 2020. The panel noted however that although there is evidence the worker experienced symptoms of pain in their right hand/shoulder in early May 2020, the worker was not able to provide information as to any specific event or incident that caused them injury and there is no evidence before us of any repetitive job duties that caused or contributed to the worker’s reported symptoms. What we heard from the worker is that they believe, or guess, they may have experienced pain as a result of pushing a garbage cart or as a result of unplugging a clogged garbage chute. The information provided most proximate to the time of the injury claim is that provided to the employer, which did not describe any specific incident, event, job duty or other cause that resulted in injury. The worker in responding to the panel admitted they are guessing as to a cause and cannot confirm a mechanism of injury.

Given the gaps in the worker’s testimony and the medical reporting, the panel is not able to link the development of right upper limb pain symptoms to an accident arising out of the worker’s job duties. The panel further noted that the worker’s symptoms did not resolve by August 2020 although the worker’s employment activities were discontinued with the worker’s termination as of May 11, 2020 and finds that this does not support the worker’s position, as recovery with a period of time and rest would reasonably be expected if the symptoms were caused by the worker’s ongoing job duties.

On basis of the evidence before the panel and on the standard of a balance of probabilities, the panel is not able to determine that the worker was injured as a result of an accident arising out of and in the course of their employment. Therefore, the worker’s claim is not acceptable and the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of May, 2022