Decision #136/07 - Type: Workers Compensation

Preamble

This is an appeal by the employer of Workers Compensation Board (“WCB”) Review Office Order No. 829/2007 holding that the worker’s claim for compensation was acceptable.

On October 5, 2007, the worker reported an injury to his lower abdominal region from a work related incident. He also related his lung condition (pneumonia) to a cold work environment on October 10, 2007. The WCB accepted responsibility for wage loss benefits and medical treatment costs associated with the worker’s abdominal injury, but not for his pneumonia condition. On November 9, 2006, the employer appealed the decision to Review Office on the following basis:

  • it was not established that the incident causing injury ever occurred;
  • if the incident did happen, it involved a task that was outside the worker’s medical work restrictions;
  • the worker’s failure to report and discuss the incident, his health condition and work capabilities with his supervisor; and
  • the worker’s failure to report to work 7 days after he was supposed to be back, or if he got a second week off from a doctor, his failure to inform the company and provide the doctor’s recommendations.

In a second submission dated November 17, 2006, the employer felt the worker violated the following sections of The Workers Compensation Act (the Act):

  • Subsection 4(3) – Misconduct of Worker;
  • Subsections 22(1) and 22(2) – Worker to Cooperate and Mitigate;
  • Subsection 27.1 – Limit on Further Claims.

On December 15, 2006, Review Office confirmed that the claim was acceptable. It could find no evidence to suggest that the worker’s abdominal injury did not occur as a result of a workplace accident. It found that the worker’s actions on October 5, 2006 were not unreasonable given that he was assisting another co-worker and the activities were work related. It found no evidence that the worker was acting in a manner that would be considered misconduct under subsection 4(3) of the Act. It did not find that the worker refused to cooperate with his employer regarding his compensable injury and the status of his recovery.

The employer disagreed with Review Office and appealed to the Appeal Commission. A hearing took place on August 30, 2007. The worker appeared and provided evidence. He was assisted by a union representative. Three representatives appeared on the employer’s behalf and provided evidence. On August 30, 2007, the panel rendered its final decision.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On October 11, 2006, the worker filed a claim with the WCB stating that when he came home from work on October 10, 2006, he started to feel pain and was shivering. When he went to the hospital, he was told that he had pneumonia. This was reported to the employer on October 11, 2006.

The employer’s report of injury was filed with the WCB on October 12, 2006. It stated that the worker had pain in his left low abdomen that came about while helping a co-worker set up a core box. The worker pushed the core box so it could align with the other half and he then felt pain in the lower abdomen. The core box was suspended by a hoist. The accident date was recorded as being October 5, 2006 and was reported to the worker’s supervisor on October 6, 2006. The employer also stated that the company received a doctor’s note on October 10 saying the patient was unable to return to work for medical reasons. On October 11, the worker’s immediate supervisor saw a modified duties form from the worker on his desk, but did not see the worker. He called the worker at home to come in to work in the training room at modified work. The worker refused and said his doctor told him to stay home. On October 11 the worker called Genesis saying that he was on antibiotics for a pneumonia-related ailment. The employer further commented “Basing on initial medical information, this lost time (due to pneumonia) is not a work related injury.”

On October 12, 2006, the worker advised a WCB adjudicator that he was helping a co-worker set up a core box on October 5, 2006 when he felt pain in his lower abdomen from pushing the core box. He filled out a green card at the time. He continued to have pain in his low abdomen but never sought medical treatment and continued his regular duties. The worker stated that he had previous surgery to his groin area in July 2004 and that the pain eventually went away but he always had some numbness to the area. Prior to his shift on October 9, 2006, the worker said his lungs were feeling fine. After his shift ended at 6:00 a.m., about a half hour later he got home and started to shiver. The worker noted that the heaters were not turned on in the Core Room on October 9, 2006. He said the building never really started to warm up until around 3:00 a.m.

When speaking with another adjudicator on October 26, 2006, the worker stated that he was still having ongoing problems with his abdomen and sought medical treatment on October 10, 2006. At this visit, the doctor examined his lower abdomen and also took note that he had a temperature and was shivering. He was advised to go to the hospital for a second opinion on his abdomen. He was given a sick note indicating that he was off work due to medical reasons. On his way to the hospital, he stopped off at work and spoke with his supervisor. He gave him the medical note and told him that he was going to the hospital to have his abdomen checked out and that he would not be in for his afternoon shift. He stated that he was not offered any modified duties nor was he given a work capability form. He confirmed he was offered modified duties in the training room on October 11, 2006.

On November 1, 2006, the treating physician confirmed to a WCB adjudicator that the worker was seen on October 11, 2006 and presented with severe lower left quadrant pain from a specific incident on October 5. The worker was quite tender and swollen in the area and he advised that he had a hernia in the past. The worker was also feverish at this appointment. The physician said he was concerned the worker may have an incarcerated hernia and advised the worker to attend the hospital for further evaluation on his lower left quadrant. He then told the worker to remain off work for his lower left quadrant as the worker was having trouble sitting, standing and walking. When seen again on October 17, the worker still had ongoing signs and symptoms and difficulties related to his lower left quadrant area and was advised to remain off work. When seen again on October 24, he felt the worker could return to work to modified duties of no lifting greater than 20 lbs.

On November 1, 2006, the adjudicator informed the employer that the WCB was accepting responsibility for wage loss and medical treatment associated with the worker’s claim for a left lower abdominal injury suffered on October 5, 2006. It noted that the worker sought medical attention for his lower abdomen and followed up with his treating physician with regards to same on October 5, October 10, October 17 and October 24 when it was determined that he would be capable of performing alternate or modified duties. It was also indicated that the worker provided documentation to the WCB that the worker was terminated from employment effective October 24 for not providing any medical information to his employer to support his time loss after October 18. The adjudicator said there was a potential non-work related condition which was also identified as a possible cause to the worker’s time loss from work, however, this was ruled out once all the medical information was received.

Reasons

To accept the employer’s appeal, we must find on a balance of probabilities that the worker did not suffer a workplace accident within the meaning of subsections 4(1) and 1(1) of the Act. Based on the evidence before us, we are unable to make that finding. Stated otherwise, the panel confirms that the worker did suffer a workplace accident within the meaning of the Act.

The panel notes that this case has been confounded by the presence of two medical conditions that arose within a week of each other, the first being a lower abdominal strain that arose around October 5, 2006, and the second being a pneumonia condition that arose around October 10, 2006. The worker first sought treatment on October 10, 2006, at which time his attending physician identified severe lower left quadrant pain and possible hernia, and noted that the worker was shivering. The physician sent him to a hospital for tests, where pneumonia was also diagnosed. At the October 10 visit, the physician authorized time loss for the severe lower left quadrant pain. Adjudicatively, the file became a challenge when the worker subsequently applied to WCB for coverage of both conditions, one of which was ultimately accepted (the lower abdominal condition) and the other denied (pneumonia).

The employer argues that the lower abdominal pain complaints have been listed in medical articles as a common side effect of pneumonia. In the alternative, the employer argues that the worker did not participate in the well-established accident investigation process used in the workplace, and that this suggested there was no accident, that the incident on October 5 was so minor it had nothing to do with the reasons why the worker was unable to continue to work as of October 11, 2006.

Analysis

The evidence before us is that on October 5, 2006 the worker was assisting a co-worker push an extremely heavy core-box that was on a hoist, when he felt pain in his left groin area. He filled in a green card that same day, but was able to continue with work. His condition worsened over the next few days, until he arranged to see his attending physician after work on October 10, 2006.

During the hearing, there was differing evidence on whether the worker participated in an internal accident investigation. The worker asserts that he did in fact participate in a meeting the next day with his immediate supervisors that did not involve the employer’s representative, who is the employer’s safety officer. The employer’s representative states that such a meeting did not take place, since he was never provided with a copy of an accident investigation report.

The panel notes that there is no legal requirement under the Act that a worker participate in such an investigation, nor that failure to do so would in any way affect the worker’s rights under the Act. However, in this case, the presence or absence of such an investigation (even in the absence of a physical copy of the report) can certainly assist the panel in determining whether the worker did in fact suffer a discrete injury to his lower abdomen several days before the onset of his pneumonia condition.

In reviewing the employer’s Accident Report on the file, dated October 12, 2006, the panel notes that the employer indicates that an accident to the worker’s “lungs” was stated to have occurred on October 5, 2006, and reported the next day to a particular supervisor, who both parties acknowledge was the worker’s immediate supervisor. The accident details section describes the worker moving the core box with a co-worker. Of particular interest to the panel is the last comment in that section: “Supervisor’s note: Caution to be used with maneuvering core box even though it is suspended.” The panel notes that this particular comment is far more in keeping with a summary of an internal accident investigation than information normally contained in a WCB accident report, and asked the employer’s representative for comment. The employer representative then provided an alternative and speculative argument that the supervisor may have in fact done an investigation but perhaps without the worker participating, but that in any event it wasn’t on his file.

Based on the evidence, the panel finds that there was a considerable engagement between the worker and at the very least his immediate supervisor(s) in and around October 5 and 6, directly related to a workplace incident on October 5 in which the worker asserts that he had hurt himself moving a core box. In this regard, the panel places far more weight on the evidence of the worker at the hearing, as supported by the supervisor’s comments on the Employer’s Accident Report, than the inconsistent and changing evidence on this point provided by the employer’s representative at the hearing.

The panel also finds that the mechanism of injury – the pushing/moving of the heavy core box suspended on a hoist – could lead to a strain injury to the lower abdomen area, and that it was reported to the employer, as described above on October 5 and 6, well before his first medical examination on October 10. The panel also finds that this condition could worsen from continued job-related activities leading to an eventual absence from work on October 11, 2006. As such, we are satisfied that a workplace accident occurred on October 5, 2006, within the meaning of the Act.

We have considered the employer’s argument that the worker’s symptoms were related to another medical condition. We do not accept this argument. First, we note that the worker was able to work several days beyond October 5, up to and including October 10. He first reported shivering on that day and was diagnosed with pneumonia on that same day. As such, the abdominal strain clearly preceded the pneumonia condition by several days and would not be a side effect of that condition. Second, we note that the worker’s pneumonia was managed with medications within a few days, while the abdominal pain continued for some time after, again suggesting that the abdominal condition was independent from, and not related to, the worker’s pneumonia.

We have also considered the employer’s concerns about whether its internal accident investigation protocol had being followed by the worker. As noted above, the panel considers it likely that the worker had in fact participated in an accident investigation; in any event, this would be a labour relations matter and not a workers compensation matter, and would not have an impact on the worker’s rights to access benefits under the Act.

Based on our findings as noted above, the panel confirms that on a balance of probabilities that the worker suffered a compensable workplace accident on October 5, 2006. As such, the employer’s appeal regarding claim acceptability is denied.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 5th day of October, 2007

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