Decision #132/07 - Type: Workers Compensation
Preamble
This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 379/2007 holding that his claim for compensation is not acceptable.
On April 2, 2007, the worker reported that he injured his back when he had a coughing fit while carrying a garage door on his shoulders. The WCB denied the claim for compensation on the grounds that an accident had not been established as there were delays in reporting the accident to his employer, his healthcare provider and the WCB. On June 5, 2007, Review Office confirmed the decision to deny the claim. The worker appealed to the Appeal Commission and a telephone conference hearing was held on August 30, 2007. Both the worker and his father participated in presenting the worker’s submission. The employer did not participate in the hearing.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On April 2, 2007, the worker reported that he was loading a garage door onto a truck with the weight of the door on his shoulders. He then had a coughing attack and something gave in his back. He indicated he reported the accident to his store manager the next day, on April 3, 2007. He did not report the accident sooner as he thought he would rest to see what happened.
The employer’s controller recorded that the worker notified them on April 12, 2007 of an accident that occurred on April 2, 2007. The worker described the accident as “…was loading a garage door onto a delivery truck on the morning of April 2nd - with the weight of the door on his shoulder he had a coughing attack from a bad cold and his back tensed under the weight. Throughout the day it continued to get worse. At the time he thought the effects of the cold were contributing to the pain and stiffness until the next day when he could hardly move.” The employer noted that there were no witnesses to this accident.
Medical reports show the worker attended a physician for treatment on April 4, 2007. The worker’s accident description was “Lifting heavy door – sudden back pain.” The diagnosis rendered was a low back sprain.
The worker sought treatment from a hospital facility on April 4, 2007 at 6:55 p.m. and described injuring his back while lifting a heavy door. The diagnosis was back sprain.
On April 16, 2007, the employer’s controller spoke with a WCB adjudicator stating the worker did not report an injury until April 12, 2007. The worker told them he was off work due to a bad cold. The controller also wanted it documented that the worker was hired on February 26, 2007 and only worked about 7 days in total. The rest of the time he had been off work due to the flu, a cold and WCB claims.
The adjudicator contacted the store manager to verify whether the worker reported an injury to him on April 3, 2007. The store manager told the adjudicator that “he does not recall that but it is possible he did. The worker always left messages when he was sick so it’s possible that he left a message about the accident and the employer simply erased it.”
On April 20, 2007, the worker told the WCB adjudicator that he delayed in reporting his accident because he was scheduled off. He said he left a message with his supervisor on April 3, 2007 but could not remember if he told him why he was off work. He also mentioned the name of a co-worker who witnessed the injury on April 2, 2007.
Two witnesses were contacted. One stated that he helped the worker load the garage doors that day but does not recall the worker having any difficulties on April 2, 2007 nor did he mention that he hurt his back. The worker continued working as usual. The other witness stated that he was not working closely with the worker that day and was not the one helping him load. He did recall the worker mentioning an injury or that he hurt his back.
On May 7, 2007, the WCB adjudicator denied the claim on the basis that the worker delayed in reporting an accident to his employer, the healthcare provider and the WCB. The worker disagreed with the decision and appealed to Review Office.
On June 5, 2007, Review Office determined there was insufficient evidence to support that there was an accident. It reaching its decision, Review Office noted that it contacted three co-workers who were unable to confirm that the worker hurt his back. It also referred to the fact that the worker delayed seeking medical attention for two days after the claimed injury, he did not report an accident to the employer until April 12 and his delay in filing a WCB claim because he was unclear as to the cause of his back symptoms.
Reasons
For this appeal to be successful, the panel must be satisfied that the worker suffered an accident as defined by The Workers Compensation Act (the Act). The panel has found the worker suffered an accident and his claim is therefore acceptable.
For a claim to be successful there must be sufficient evidence, on a balance of probabilities, that an injury occurred. The panel is satisfied from the worker’s evidence that he suffered an injury, that he reported the injury to his employer in a timely fashion and sought appropriate medical treatment.
In considering this appeal, the panel relied on subsections 1(1) and 4(1) of the Act.
Subsection 1(1) states:
"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;
Subsection 4(1) states:
Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Evidence:
The injury:
The worker states that he injured his lower back while in the course of his employment on April 2, 2007 at about 10 a.m. while loading building materials. His evidence was that he continued to work his shift but did require some assistance from other workers in his loading duties. He mentioned to other co-workers that he had hurt his back. He said at the end of the day he purchased Robaxicet, took it and went to bed. When he got up the following day, he could hardly move. He then phoned his supervisor and left him a message that he would not be in as he was in severe pain with his back. The worker said he was always diligent and let the employer know if he wasn’t going to be in. He acknowledged that he had a bad cold and that in combination with a recent wrist injury had been responsible for some previous absences.
The worker reported that he attended a local health care facility for medical attention on April 4, 2007. He was diagnosed initially with a back strain and was advised not to work.
Reporting the injury:
The evidence given at the hearing and on the file confirms the worker did mention the incident to a co-worker. The evidence on file also indicates the store manager believes it is possible the worker did report an accident on April 3, 2007.
The worker stated that he again called his employer on April 4, 2007 following the visit to the physician for treatment to his back. He also contacted the employer following the initiation of the WCB claim on April 12, 2007.
The worker submitted that he complied with all reporting requirements to establish his claim.
Analysis:
The worker’s claim was denied because he delayed in reporting. Section 17(1) of the Act provides that the worker has 30 days to report a claim. The panel finds that the worker is clearly within that time frame.
On the matter of witnesses, there is no requirement that there be witnesses to confirm that an accident occurred. In this case, in any event, we note the employer and a co-worker comment that the worker might have mentioned hurting his back.
Regarding the mechanism of injury, the panel finds there is a causal relationship in lifting the heavy door, which was part of his regular job duties, the coughing spell while lifting that door, and the diagnosed lower back strain.
The panel is satisfied on the totality of evidence that this worker suffered an accident within the meaning of subsections of 4(1) and 1(1) of the Act. He reported the accident within the legislated time frame and sought medical attention for his injury. His claim is acceptable and his appeal is allowed.
Panel Members
A. Finkel, CommissionerM. Day, Commissioner
Recording Secretary, B. Kosc
M. Day - Commissioner
Signed at Winnipeg this 3rd day of October, 2007