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 for an accident arising out of and in the course of employment on January 16, 2014. A videoconference hearing was held on September 14, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable for an accident arising out of and in the course of employment on January 16, 2014.

Decision

The claim is not acceptable for an accident arising out of and in the course of employment on January 16, 2014.

Background

The worker is appealing the decision that his claim is not acceptable for an accident arising out of his employment with a general contractor or project manager ("Employer B") on January 16, 2014.

The worker originally filed a claim with the WCB on January 28, 2014, for an injury he sustained to his low back and left leg on January 16, 2014 while working for a different employer ("Employer A"). The worker indicated:

I moved a steel door to place it out of the way when I injured my lower back. No hazard on premises.

Employer A submitted their Employer's Accident Report to the WCB on January 28, 2014, and noted that the worker reported the injury to his low back and left leg to them on January 23, 2014.

The worker advised the WCB that he could not call Employer A to notify them of the injury on or around the date of the injury as the telephone where he was staying was not working. The WCB conducted a further investigation and found that the worker had initially reported his injury to Employer B on or about January 16, 2014.

At an initial physiotherapy appointment on January 27, 2014, the worker's reported description of the injury was "Moving a steel door, felt low back pop, instant pain form (sic) low back to left leg below the knee." The physiotherapist diagnosed the worker with "Discogenic back pain with radiculopathy" and recommended he return to sedentary duties for three weeks.

On February 11, 2014, the WCB's Compensation Services accepted the worker's claim and payment of various benefits commenced.

On March 2, 2015, the worker underwent a posterior lumbar decompression and fusion surgery.

On June 30, 2016 the worker was notified that an investigation had been launched by the WCB's Compliance Services regarding allegations that the worker had claimed WCB coverage for a workplace injury that was the result of his self-employment activities rather than his employment with Employer A and that he had knowingly misrepresented his self-employment income to the WCB for the purpose of increasing his entitlement to wage loss benefits.

Although WCB's Compliance Services had commenced an investigation, the worker's entitlement to benefits continued. On October 11, 2016, Compliance Services advised the worker that based on their investigation, it had been determined that he had misrepresented the amount he earned through self-employment activities in 2013 and that he had misrepresented whom he was working for at the time of the January 16, 2014 workplace accident. The worker was further advised that the findings were referred to the WCB's Compensation Services to determine the impact on his claim.

On October 18, 2016, the WCB's Compensation Services advised the worker that his benefits were suspended as a result of the Compliance Services investigation and that a decision regarding further entitlement to benefits would be provided once Compliance Services had completed further investigation.

On July 7, 2017, the WCB's Compliance Services provided the worker with an Investigation Final Report. Compliance Services confirmed their investigative findings that the worker had misrepresented his self-employment income in 2013 to the WCB and that he had misrepresented whom he was working for at the time of the reported workplace accident and, as a result, received benefits to which he was not entitled. The worker was advised that the Investigation Final Report would be sent to the WCB's Compensation Services for consideration on the claim.

On July 20, 2017, the WCB's Compensation Services advised the worker that based on the investigation of his claim, they had determined that his claim was not acceptable and he had been overpaid benefits and would be responsible for repaying the full amount of the overpayment.

On January 24, 2018, the worker's legal representative requested that Review Office reconsider Compensation Services' July 20, 2017 decision. The worker's legal representative noted the worker's disagreement with the findings of the WCB's Compliance Services, including his reported self-employment income in 2013 and the worker's alleged inconsistent statements made during the investigation.

On May 22, 2018, Review Office upheld Compensation Services' decision that the worker's claim was not acceptable and he had been overpaid benefits. Review Office concluded, on a balance of probabilities, that the worker sustained his back injury while performing self-employment duties for the project manager (Employer B) and not Employer A. Review Office determined the worker sustained a personal injury, but not while in the course of his employment with Employer A, and that his claim was therefore not acceptable and he had been overpaid benefits.

The worker's legal representative filed an appeal with the Appeal Commission on June 27, 2018 and an oral hearing was arranged. On February 1, 2019, pursuant to Appeal Commission Decision No. 15/19, the Appeal Commission determined that the worker's claim was not acceptable for an injury arising out of and in the course of the worker's employment with Employer A, and that the worker had been overpaid benefits.

On February 15, 2019, the worker filed a new claim with the WCB for the same January 16, 2014 workplace accident, identifying his employer at the time of the accident as the third party project manager (Employer B). It was noted by the WCB that evidence on the worker's other WCB claim indicated the worker had been doing work on a project as a subcontractor for Employer B at various times, in addition to working on the project as an employee of Employer A.

On July 25, 2019, the WCB's Compensation Services advised the worker that after conducting further investigations into his claim, including reviewing the information provided on the worker's previous WCB claim and gathering new information, they had determined his claim was not acceptable. Compensation Services found that based on the evidence, which included inconsistent and conflicting information, the worker did not sustain an accident arising out of or in the course of his employment. Compensation Services further found that the worker was not at the worksite on the date he claimed he suffered a work-related accident.

On July 26, 2019, the worker requested that Review Office reconsider Compensation Services' decision, noting the evidence on file from Employer B and other witnesses interviewed by the WCB supported that the worker was at the worksite and that he sustained a workplace accident on January 16, 2014. On January 10, 2020, Review Office upheld Compensation Services' decision. Review Office noted that due to inconsistencies and contradictions in the testimony of the worker and others, they placed greater weight on documentary evidence from independent sources and stated that they were unable to conclude the worker was at the worksite on the date and time he reported being injured. Review Office concluded that they were not satisfied that the worker sustained an accident arising out of and in the course of his employment, and determined the worker's claim was not acceptable.

On December 21, 2021, the worker's representative 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 made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as January 16, 2014, the provisions of the Act that were in effect as of that date are applicable.

Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

What constitutes an accident is defined in subsection 1(1) of the Act, 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part:

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.

Worker's Position

The worker was represented by legal counsel, who made an oral submission at the hearing. The worker responded to questions from his legal counsel, and the worker and his counsel responded to questions from the panel.

The worker's position was that his claim is acceptable for an accident arising out of and in the course of his employment with Employer B on January 16, 2014.

In his submission, counsel argued that in effect, the worker was working for two employers when he was doing his job in January 2014. He originally brought a claim against Employer A, but the Appeal Commission found that the evidence did not support that he was performing work for that employer at the time he was injured. Counsel submitted that it was common sense that if Employer A was not the accident employer, then it must be Employer B, who is the named employer in this claim.

In response to questions from his counsel, the worker stated that he had been hired on the project by Employer A "under mechanical contracting." He had also been hired by the Employer B, the general contractor for the project, to do foreman work and extra projects. The worker said that at the time of the accident, he was the on-site foreman. It was about minus 30° outside and he wanted to install a toilet in the 2nd floor washroom of the facility they were working on, as a courtesy for the workers. The worker said he made the decision to install the toilet within his capacity as foreman. When he was going to install the toilet, an extra steel door which had been left behind was lying on the floor. He said that when he went to move the door to get it out of his way, his lower back popped. The worker said he started limping later that day, at which point he knew there was a problem, and he reported the injury to the owner of Employer B.

Counsel submitted that it was clear from the evidence that the accident occurred in the course of the worker's duties and employment with Employer B, and his claim should be accepted. Counsel further submitted that based on the evidence, the worker satisfied the criteria to be considered a "deemed worker" under the Act, in that he was performing services for Employer B while being paid by Employer B at the time he was injured and should be entitled to benefits as a result.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment with Employer B on January 16, 2014. The panel is unable to make that finding, for the reasons that follow.

The panel has carefully reviewed and considered the evidence and submissions which are before us, but is unable to establish, on a balance of probabilities, that the worker suffered an accident or sustained an injury arising out of or in the course of his employment with Employer B on January 16, 2014.

At the hearing, the panel questioned the worker in detail with respect to the route he would have taken on January 15, 2014 to get to the project location, as well as the road and snow conditions. Based on our review of all of the evidence which is before us, the panel is satisfied, on a balance of probabilities, that the worker travelled to, and arrived at, the project location very late that night or early the next morning and would have been on site at that location on January 16, 2014.

The panel notes that while there were questions with respect to the worker's cell phone records and indications as to the worker's location at various times on January 15, 2014, while the worker was travelling to that destination, we are unable to place weight on those records without further clarification or explanation as to the reliability and details of the contents of those records.

The panel further accepts that the worker had back difficulties subsequent to January 16, 2014. The information on file indicates the worker sought medical attention in late January 2014 after he returned home, and was diagnosed as having sustained an injury to his back. Based on the evidence, however, the panel is unable to find that these difficulties were causally related to a workplace accident or injury.

In arriving at our decision, the panel finds that there are serious issues with respect to the credibility of the worker in this case. In this regard, the panel notes that there are significant contradictions and inconsistencies in the evidence on file and at both hearings before the Appeal Commission.

The panel notes that the claim is advanced based on a very similar story, but with a different employer than on the worker's original claim. When asked about this, the worker said that he brought this claim because of the previous Appeal Commission decision which indicated he had the wrong employer, noting that as he had only two employers at the time, if one of them was not the accident employer, the other one must be.

The worker consistently said he was working to installing a toilet, and he injured himself as he was moving an extra door that was left behind when the doors were installed. The panel notes that there is no evidence to indicate an extra door had been left behind when the doors were installed in December 2013 or evidence of the worker having installed a toilet for anyone, other what the worker has said. The evidence shows there were no witnesses, and no one was therefore able to independently verify that the worker was injured in the manner he described or at the date and time he described.

The evidence shows that invoices which the worker provided to Employer B for the work he performed are task specific. The January 28, 2014 invoice states, in part, with respect to January 16, 2014 "Installed temp heat in lobby, started installing steel doors in washrooms 2nd floor" and makes no mention of the worker installing a toilet or moving a door to enable him to do so. The panel notes that when asked at the hearing on December 12, 2018 why the invoice referred to door installation in the second floor washroom, the worker replied that all the doors had already been installed throughout the building in December and he was only installing the door hardware on the second floor washroom door on January 16, 2014.

The panel notes that the worker's explanation as to installing hardware appears inconsistent with a subsequent entry on that invoice for January 19, 2014, where such things as installing door handles and closers, as opposed to installing doors, are specifically identified. The panel also notes that when the worker subsequently provided his file copy of the January 28, 2014 invoice, the word "washrooms" had been overwritten to read "lobbyrooms," and that when asked about this, the worker could not provide an explanation as to why the copy he had subsequently provided was different, stating "I have no idea, not me. Absolutely not me, it doesn't make sense."

The panel notes that there are significant inconsistencies and questions as to when the doors were installed in the project. The worker has steadfastly denied, however, that he was installing doors in the 2nd floor washroom on January 16, 2014.

The worker testified at the hearing that he was hired by Employer B as a foreman on the project. The worker stated that he made the decision to install the toilet in his capacity as a foreman. The panel is unable to accept the worker's position in this regard or that he would have been acting within the scope of his employment with Employer B in proceeding to install a toilet at that time or moving a door as incidental to that task.

The panel notes that invoices on file which the worker provided to Employer B also do not refer to the worker acting as or performing the work of a foreman. When it was put to the worker that invoices on file which were submitted to Employer B appeared to be very task specific, and did not indicate that he was working as a foreman, the worker agreed, adding:"That was just the title that I was kind of given when I was working up there as the job site foreman…and that's kind of how I looked at myself...So, it was kind of the foreman would be the word that I would use because that's the – everybody kind of came to me with all the different issues on the job site…" The panel is of the view that the worker's own evidence therefore suggests that the worker was not in fact employed as a foreman for Employer B.

The panel finds that this is supported by the evidence from the owner of Employer B who indicated, in interviews with the WCB's Compliance Services in 2016 and 2017, that in addition to working on the project as an employee of Employer A, the worker had been doing some work as a subcontractor for Employer B on two specific projects only, which involved installing doors in the facility and supervising foundation work. The panel is satisfied that the evidence does not support that the decision to install, or the worker's installing of a toilet as described, fits within the parameters of those two projects.

The worker confirmed at the hearing that the owner of Employer B was very specific as to what had to be on invoices, as he had to pass those invoices on further, and that he wanted everything detailed and itemized and broken down.

When it was put to worker at the hearing that the information on file with respect to his relationship with Employer B was very specific and very task oriented, and did not involve installing a toilet, the worker stated "…that was a decision I made on site while I was there. I wasn't on site to do any specific plumbing. It was a decision that I made because of how cold it was and the fact that the porta potty was literally a block of ice…so knowing that I did all the plumbing work and finished the rough-in back in December, to me it just made sense to put a toilet in it…To me it was kind of a no-brainer, put a toilet in so people don't have to freeze…"

While the worker indicated that Employer B had noted during an interview that the worker did supervisory work and suggested that he considered the designation of a supervisor and a foreman to be the same or similar, the panel does not agree, but in any event, has not identified any reference to the worker having "supervised" on behalf of Employer B prior to January 16, 2014.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer personal injury by accident arising out of and in the course of his employment with the employer, Employer B, on January 16, 2014.

Finally, the panel acknowledges counsel's argument that the worker should be deemed to be the employee of Employer B, but have not addressed that argument on the basis that this would not apply given our conclusion that the worker did not suffer personal injury by accident arising out of and in the course of his employment.

The panel therefore finds that the worker's claim is not acceptable for an accident arising out of and in the course of employment on January 16, 2014.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of November, 2022