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 hearing was held on December 12, 2023 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 October 24, 2022, reporting an injury to their head that occurred at work on October 1, 2022. The worker described that they were “Working at the dock general labour work backed into a steel bar to the back of head. It was witnessed by [witness’ name].”

On October 27, 2022, the WCB spoke with the employer’s human resources representative. The WCB provided the representative with the information on the Worker Incident Report and the representative advised they would speak to the witness, investigate, and provide their report to the WCB. On October 31, 2022, the WCB received the Employer Incident Report in which the employer indicated no knowledge of the worker injuring themselves and that they only learned on the day the worker went to hospital that the worker had hit their head weeks earlier. On the same date, the WCB had a further conversation with the employer. The employer advised the incident occurred on a day the worker was not scheduled to work but noted as their site was remote, some workers continued to perform job duties on their days off. The employer reported they spoke with the coworker described as a witness to the incident by the worker, and the coworker advised they did not witness an injury. Further, the manager to whom the worker stated they reported the incident also advised they were not aware of an injury.

When the WCB spoke with the worker on November 8, 2022 to discuss their claim, a family member participated in the discussion as it was noted the worker had cognitive issues. The worker confirmed the mechanism of injury described in their report, and advised they did not lose consciousness but had bad headaches afterward. The WCB noted that the reported incident happened when the worker was not scheduled to work, and the worker confirmed they often performed job duties on their days off as there was not anything else to do. The worker stated a coworker witnessed the incident and helped the worker by looking for blood at the back of their head. The worker confirmed they reported the injury to their manager. The family member present indicated they were aware of the incident as they worked with the worker and discussed the worker’s bad headache the day following the incident. The worker noted they were able to continue working while taking pain medication for the headaches, but that they sought medical treatment after experiencing hallucinations for about a week. The worker went to the local hospital and from there was sent to a major trauma centre for further treatment and a CT scan and diagnosed with concussion. The worker further noted a referral to a concussion clinic but that they did not yet have an appointment. The worker offered details of previous head injuries. The WCB advised the worker that it would need to gather medical information and investigate the claim.

On November 8, 2022, the WCB spoke with the coworker named as a witness to the workplace accident. The coworker advised they knew the worker but had no information on how the injury occurred. The coworker confirmed working with the worker on October 1, 2022 but that they were not working on a dock; rather, they were cleaning and emptying out a shed to prepare it to store items for the winter. The coworker noted some materials they were cleaning out were metal, but those items were light and easy to carry and there were no metal pieces affixed to anything the worker could have backed into as they described. The coworker further stated they did not see the worker injure themselves and they were not asked to and did not examine the worker’s head or scalp. The coworker advised they had contact with the worker regularly after the October 1, 2022 incident until they left for the hospital and confirmed they did not witness the worker having any difficulties.

The WCB also spoke with the worker’s manager on November 8, 2022. The manager advised they were not aware of an October 1, 2022 incident until October 22, 2022 when the worker obtained medical treatment.

The WCB received a copy of the October 22, 2022 report from the local emergency department on November 28, 2022. The report recorded that the worker reported headache, loss of balance and hallucinations after hitting the back of their head approximately a month earlier. The examining physician recorded findings of an unbalanced gait, no cervical spine tenderness or hematoma, and noted the worker’s history of an arachnoid cyst and a shunt. The hospital transferred the worker to a major trauma centre, querying a subdural hematoma or fluid on their brain. The worker reported to the trauma centre physician that they had headaches since hitting their head on a metal bar a month earlier, with their family member reporting they had weakness in their legs and were off balance. In addition, the worker reported recently seeing shapes and animals on their television screen, which they referred to as hallucinations.

A CT scan conducted on October 23, 2022 indicated no acute intracranial abnormality and made note that “The large arachnoid cyst in the left middle cranial fossa remained unchanged.” The treating physician indicated the worker likely had a concussion and provided the worker with information on the symptoms and return to work guidelines.

The worker attended an appointment with their family physician on November 1, 2022 reporting they hit the back of their head at work two weeks previously and had experienced headaches, memory problems, visual hallucinations, and fatigue since then. The treating physician examined the worker and found normal gait and coordination, no cervical spine tenderness and normal eye movement. The physician diagnosed concussion and recommended rest and analgesics.

On December 1, 2022, the WCB advised the worker their claim was not acceptable as it could not establish that there was an accident arising out of or in the course of their employment. The WCB noted they gathered information from the employer and spoke with the worker’s coworkers and determined the evidence did not support that an incident occurred at work on October 1, 2022. The worker requested reconsideration of the WCB’s decision to Review Office on January 10, 2023, noting in their submission that they continued to experience headaches because of the workplace accident and have not been able to work. Review Office determined on January 30, 2023 that the claim was not acceptable. Review Office found the worker’s delay in reporting an incident and in seeking medical treatment to be significant and concluded that if the worker sustained a concussion as the result of an incident on October 1, 2022, they would have been suffering from major symptoms at that time. Review Office could not account for the worker’s deterioration three weeks after their reported workplace accident and found the medical evidence indicated the worker had a significant pre-existing condition that did not arise out of, nor was caused by the workplace accident.

The worker filed an appeal with the Appeal Commission on July 26, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. Section 1 of the Act defines accident as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or 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.

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker’s Position

The worker appeared in the hearing accompanied and assisted by their parents, who are both also employed by the employer. The worker’s mother made a submission in the hearing in support of the worker’s appeal and answered questions posed by members of the appeal panel. The worker’s father also provided testimony through answers to questions posed by members of the appeal panel. The worker offered testimony in support of their appeal, and in response to questions posed by members of the appeal panel.

The worker’s position is that they sustained an injury to their head while at work and engaged in their job duties with the employer, and as such, the WCB should accept their claim.

In the submission, the worker’s mother clarified that the injury did not occur on October 1, 2022 but rather on September 27, 2022. As outlined in the copies of text messages between the worker’s mother and the worker’s supervisor, which were provided to the panel in advance of the hearing, on September 27, 2022 the worker’s mother asked if the supervisor could contact the co-worker to request that the worker and their brother be sent back to assist her. The worker’s mother explained that the worker, their brother, and father were working with the co-worker at another site earlier that day, and that she recalled this was the day that the worker hit their head.

The worker testified how the injury occurred and noted that the co-worker was present, but the worker could not confirm that the co-worker saw them hit their head while backing up. The worker confirmed that the co-worker came to check if they were okay. The worker also confirmed they later told their father and sibling about hitting their head, when the father and sibling returned to the site. The worker stated that in the weeks after the injury occurred and before seeking medical treatment, they “used a lot of Tylenol” for their headache. The worker indicated that they mostly worked alone after the date of injury and “pushed through” because they were needed at work, but on October 22, 2022, the worker sought medical treatment because of their increasing symptoms of disorientation, hallucination, and headache.

The worker testified that they were assessed by a concussion clinic physician since then, over the phone and will have further assessment in person early in 2024. The worker indicated they continue to experience chronic headaches, although some days are better than others.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue in this appeal is whether the claim is acceptable. For the appeal to succeed the panel would have to determine that the worker sustained an injury as a result of an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The panel considered whether the evidence supports a finding that the worker sustained an injury arising out of and in the course of their employment. We noted that the evidence in relation to the worker’s claim is disputed by the employer and other staff of the employer, although there was only one reported witness to the event. The employer’s report to the WCB of October 27, 2022 indicates that it first became aware of the worker’s injury on October 22, 2022 and on October 31, 2022, the employer confirmed to the WCB that the co-worker did not witness the worker getting injured and that the site manager did not learn of the injury until the worker went to hospital. The employer’s report is consistent with the evidence of the co-worker provided to the WCB on November 8, 2022. The panel noted that although the co-worker stated they did not recall witnessing any injury or attending to the worker at any time following an injury, they nonetheless confirmed that they were present and working with the worker and their family members as described by the worker and the family members. The co-worker also described that one of workers at the site lost their footing but did not fall, and further, confirmed that they take worker safety seriously and would have reported an injury and directed the worker to seek medical attention even for a minor injury. The panel also noted that the site manager stated to the WCB on November 8, 2022 that they did not become aware of any workplace injury until the day the worker was transported by air ambulance for further assessment, which was on October 22, 2022.

The panel considered that this youthful worker was in a somewhat unusual employment situation, in that at the time of the events giving rise to this claim, the worker was employed and working directly with other members of their own family, including both parents and a sibling, in a seasonal employment environment operated by the employer. For this reason, some of the evidence supporting the worker’s claim is provided by members of their own family, none of whom were present with the worker at the time of the reported injury. The worker’s father and sibling were present at the incident site shortly afterward and confirmed that the worker told them about the incident then. The worker’s mother testified to learning of the injury when the worker returned that afternoon to assist with other work, and further advised that they told the site manager about the worker’s injury the same day.

The panel found that the worker, although nervous in the hearing, was credible in providing their testimony. We noted that the worker’s testimony confirms the description of events provided to the attending medical professionals in the emergency room in the local hospital and in the second assessment, as well as to the walk-in clinic physician. The worker’s testimony is also consistent with the information the worker provided to the WCB on making the claim. The worker confirmed they could not say if the co-worker saw them hit the back of their head on the metal bar, but the co-worker did come to check on them afterward. Given that the co-worker confirmed they noted someone stumble and nearly fall on site, and the evidence that the co-worker and the worker were working together without the others present when the worker claimed the injury occurred, the panel finds that it is likely that the co-worker noted the worker stumbling.

The co-worker also reported they would have urged an injured worker to seek medical treatment for even a minor injury. The worker confirmed that they did not have any bleeding or visible evidence of their injury at the time it occurred. The panel noted that the worker’s family members also did not suggest a need for the worker to seek medical treatment on the date of injury. As such, we are satisfied that, although the worker sustained an injury to the back of their head, it was not obvious to any of those present on that date that any sort of medical attention was needed. The panel noted that despite the worker’s report of subsequent headaches, it was not until a few weeks later when the worker indicated more concerning symptoms of hallucinations in addition to headache that their family members urged them to obtain medical treatment.

The panel also considered that medical reporting references the worker’s previous brain condition, but the reports indicate the worker’s more recent symptoms are consistent with a possible concussive injury. Because of the evidence of a pre-existing brain condition, the treatment providers referred the worker for a CT scan to rule out a more significant injury or condition and on further investigation, the investigations indicated no acute abnormality or hydrocephalus, leading to the conclusion that the worker’s symptoms were due to a “likely concussion”.

The panel noted the discrepancies in the file information as to the date the worker claimed the injury occurred. The initial emergency treatment record of October 22, 2022 indicates that the worker hit the back of their head one month prior to that visit. The subsequent emergency visit summary of later the same date indicates the worker’s report that “1 month ago hit [their] head on a metal bar”. The Worker Incident Report to the WCB completed on October 24, 2022 indicates the date of incident as October 1, 2022 and describes that while “Working at the dock general labour work[er] backed into a steel bar to the back of head”. The Doctor First Report from the walk-in clinic physician, dated November 1, 2022, indicates that the worker “hit the back of [their] head at work 2 weeks ago…”. In the hearing the worker’s mother explained the basis for their belief that the injury occurred on September 27, 2022. As the employer could not verify any knowledge of the injury until October 22, 2022, and there is no other verification of the date of accident, the panel relies upon the information provided to the medical providers on October 22, 2022, which indicates an injury occurred approximately one month earlier. This is supported by the evidence and submissions on behalf of the worker in the hearing. The panel is satisfied on the basis of the evidence that the worker sustained their injury at work on or about September 27, 2022.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker was injured as a result of an accident arising out of and in the course of their employment on or about September 27, 2022. Therefore, the claim is acceptable, and the worker’s appeal is granted.

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 26th day of January, 2024