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 hearing was held on September 20, 2022 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

In a Worker Incident Report filed with the WCB on February 4, 2022, the worker reported injury to their left ribs that occurred at work on January 25, 2022. The worker described the injury as occurring when “I was climbing into a trailer to start a machine. As I was getting out, I stepped with my left foot and lost my footing. As I slipped, I banged my ribs on the side of the trailer where my foot slipped off of. Then I hit the ground.”

On February 7, 2022, the WCB received the Employer’s Accident Report. The employer noted the worker reported injuring their left ribs area after slipping and hitting the side of a trailer. The worker advised their supervisor they were not hurt and continued to work but two days later, on January 27, 2022, reported they were experiencing pain and required medical treatment, at which time they were taken to an on-site physician’s assistant. The treating physician’s assistant diagnosed the worker with a bruise to their left chest area and provided modified duties of no climbing on ladders or work above the shoulder and limited pulling/pushing with the left arm, which duties could be performed at their current worksite. The employer noted the worker wanted a second opinion.

When the WCB spoke with the employer on February 9, 2022 to gather information regarding the claim, the employer confirmed the worker’s report of slipping and hitting their left upper rib area but that the worker had advised they could continue working. The employer also confirmed the worker was seen by onsite medical staff two days later but chose to seek a second medical opinion. The employer advised a co-worker witnessed the workplace accident and that modified duties were offered to the worker on January 27, 2022, which the worker refused.

The WCB also spoke with the worker on February 9, 2022 regarding their claim, at which time the worker confirmed the mechanism of injury and that a co-worker had witnessed the incident. The worker advised they did not initially report their injury to the employer as it didn’t seem serious at first but worsened over time. The worker further advised they currently felt their pain was at a 3 or 4 out of 10 and had subsided since the accident. The worker advised they had sought treatment with a physiotherapist on February 3, 2022 and had been provided with restrictions of not moving more than 10 pounds and restrictions on work hours of four-hour days for five days per week for a period of two weeks. The worker confirmed the modified duties were to begin on February 7, 2022 but they did not contact the employer as they felt they could not work due to their injury. On questioning by the WCB, the worker clarified they did speak to the employer on February 4, 2022 but advised their treating physiotherapist recommended they could not start the modified duties until February 7, 2022.

The WCB received the Physiotherapy Initial Report on February 15, 2022 for the worker’s assessment on February 2, 2022. The physiotherapist recorded the worker had no signs of inflammation, redness, swelling or bruising, had full thoracic range of motion and strength but noted discomfort with deep breathing. The treating physiotherapist provided restrictions of no push/pull/lift/carry greater than 10 pounds and restricted work hours of four hours per day, five days per week.

On February 16, 2022, the WCB received a copy of the January 27, 2022 medical report for the worker’s attendance with the physician’s assistant. The physician’s assistant noted the worker’s description of a blunt blow to the left side of their chest and that the worker declined pain management after the examination. A functional abilities form attached to the report noted restrictions against lifting, ladder climbing, and working at or above shoulder level with their left arm. On February 16, 2022, the treating physiotherapist provided the WCB with a revised copy of the Functional Abilities Form noting they had not previously checked off the box indicating the worker was able to return to modified duties. On February 17, 2022, the physiotherapist contacted the WCB to confirm they had cleared the worker to return to the modified duties listed on the Functional Abilities Form as of February 7, 2022.

The WCB advised the worker on February 18, 2022 that the claim was accepted for a workplace accident that occurred on January 25, 2022, but that as the worker had modified duties available as of February 7, 2022 which they chose not to participate in, wage loss benefits would only be paid to February 6, 2022.

The employer requested reconsideration of the WCB’s decision to Review Office on March 7, 2022, noting its disagreement with the WCB’s acceptance of the worker’s claim. Review Office upheld the WCB’s decision the worker’s claim was acceptable but determined the worker was not entitled to wage loss benefits. Review Office accepted the medical evidence supported the worker sustained a rib contusion as a result of the January 25, 2022 workplace accident, but found that injury would not have rendered the worker totally disabled from working, as evidenced by the worker continuing to work their full duties for two days following the accident and their ability to work and travel on the third day after the accident. Review Office further found that the employer had offered reasonable modified duties and the worker demonstrated their ability to continue working their regular duties following the workplace accident and as such, did not have a loss of earning capacity and was not entitled to wage loss benefits.

The employer filed an appeal with the Appeal Commission on April 20, 2022 and a hearing was arranged.

Reasons

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.

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", subject to subsection (1.1), includes

(a) a chance event occasioned by a physical or natural cause,

(b) a wilful and intentional act that is not the act of the worker, or

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event…

Employer’s Position

The employer was represented in the appeal by its Health and Safety Manager, who made an oral submission in the course of the hearing and also provided answers to questions posed to them by members of the appeal panel.

The employer’s position, as outlined by its representative, is that the evidence does not establish that the worker was injured as a result of an accident arising out of and in the course of their employment, and as such, the claim should not be acceptable.

The employer’s representative pointed out to the panel that there were in fact no witnesses to the event that the worker described in their accident report, noting that the worker was working alone at the time. As a result, the employer is not able to confirm that the accident occurred as and when and where the worker said it did.

Furthermore, the worker did not report any injury to their supervisor, as is required, until 2 days after the alleged incident occurred and in the interim, the worker completed their usual work. The supervisor to whom the report was provided did not provide information to the Health and Safety Manager until after the Employer’s Accident Report was submitted to the WCB and as such that report is based wholly on the worker’s description of events.

The employer’s representative noted that the worker was attended to by an onsite physician’s assistant immediately upon disclosing to the supervisor that an injury occurred, and this resulted in placement of some restrictions upon the worker. The employer offered the worker modified duties, in its office, and booked a follow up medical appointment for the worker, but the worker did not attend that appointment and did not continue with the modified duties, choosing to go home instead.

In sum, the employer’s position is that it is unable to confirm that any event occurred in the course of and arising out of the worker’s employment that could have caused personal injury to the worker. For this reason, the worker’s claim should not be acceptable.

Worker’s Position

The worker did not participate in the hearing of the employer’s appeal.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the panel to grant the employer’s appeal, we would have to find that the worker did not sustain a personal injury as a result of an accident arising out of and in the course of the employment. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the employer’s appeal is denied.

The panel considered whether the available evidence supports a finding that the worker sustained a personal injury as a result of a workplace accident. The panel noted that the evidence of both the worker and employer confirms that on January 27, 2022 the worker reported an injury to their left rib area sustained on January 25, 2022. The worker explained the delay in reporting as “It didn’t seem serious at first, but it got worse.” The panel noted the worker’s explanation to the WCB is consistent with their statement to the assessing physiotherapist on February 2, 2022 that the “…pain wasn’t immediate, slowly kept progressing as day progressed.”

The mechanism of injury reported by the worker and employer is a loss of footing as the worker was climbing off a piece of equipment situated on a trailer, resulting in the worker falling onto the trailer landing first on their left side in the rib area and then onto the ground. The attending nurse practitioner, on the morning of January 27, 2022 recorded that this occurred at approximately 17:00 on January 25, 2022 resulting in blunt force and bruising to the worker’s left side chest and ribs. The assessing physiotherapist recorded that the injury occurred when the worker “…at work, slipped and fell and hit ribs on edge of trailers.”

The nurse practitioner recommended modified (light) duties as follows: “No push/pull/lift/carry greater than 10 lbs 4 hours/5 days Light duties” for a period of two weeks. The assessing physiotherapist noted no signs of inflammation, redness, swelling or bruising on February 2, 2022 but recorded the worker’s discomfort with deep breathing and diagnosed left side rib contusion. The physiotherapist also recommended restrictions for a period of two weeks on the same terms as were set out by the nurse practitioner. The file record reveals the worker booked follow up appointments for physiotherapy but did not attend. There is also a record on file indicating that the worker sought further medical care at a hospital on February 16, 2022 and had x-rays taken, revealing a hairline fracture; however, the panel noted that on follow up with the hospital by the WCB, there was no record of any such visit.

On the basis of the medical findings in evidence, the panel is satisfied that the worker did sustain an injury in the nature of a contusion to their left side ribs. The panel is further satisfied that the evidence supports that this injury was sustained by the worker in the course of and arising out of their employment, occurring when the worker fell while disembarking from a trailer, landing on their left side. While there is no witness to confirm the worker’s account, that does not mean that the injury did not occur as the worker described. The worker’s various reports of the mechanism of injury, to the supervisor, to the nurse practitioner, to the WCB and to the physiotherapist are consistent in this regard. Further, there is no evidence before the panel to support any other mechanism of injury nor that the injury occurred outside of the worker’s employment. Given the evidence of the relatively minor nature of the injury sustained and the worker’s explanation that they did not report the accident until some 36 hours later when their discomfort had increased, the panel accepts the worker’s explanation for this brief delay in reporting the injury to the employer.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained personal injury as a result of an accident arising out of and in the course of their employment. Therefore, the worker’s claim is acceptable, and the employer’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 14th day of October, 2022