Decision #50/08 - Type: Workers Compensation
Preamble
The worker reported to the Workers Compensation Board (“WCB”) that he injured his back at work on October 24, 2007. The claim for compensation was denied by a WCB adjudicator on November 14, 2007 on the grounds that she was unable to establish that the worker’s disability was related to an injury arising “out of and in the course of” his employment. The decision to deny the claim was confirmed by Review Office on December 18, 2007. A worker advisor, acting on the worker’s behalf, disagreed with the decision and filed an appeal with the Appeal Commission. A hearing was then held on April 8, 2008 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On November 7, 2007, the worker filed a claim with the WCB for an injury to his back that he related to his work activities on October 24, 2007. On this date, the worker reported that he was suspended in a harness for about one hour and was cleaning in a hole. While in the hole, he had to fill about 30 pails with concrete. He also had to remove mud and he was cranked up with a chunk of mud. After performing this task, his back was stiff but he completed his shift albeit with discomfort. The worker indicated that he did not think his injury was serious but the next day he found it hard to walk because of the pain. The worker advised that he tried to do his regular work duties on October 25 but left work because of the pain. He said he advised his foreman, supervisor and two co-workers of his back complaints on October 25, 2007. He decided to seek medical attention on November 2, 2007.
The employer’s injury report indicated that the worker injured his back while hanging in a harness while trying to clean up mud. It stated that the worker reported the injury to his supervisor on November 5, 2007.
A Doctor’s First Report confirmed that the worker sought medical treatment on November 2, 2007. The worker related his back complaints to being in a harness at work on October 24, 2007. The diagnosis rendered was a lumbar sprain and the worker was advised to remain off work for five days as of November 2, 2007.
Between November 8, 2007 and November 14, 2007, a WCB adjudicator contacted the worker as well as his supervisor and foreman to obtain additional information surrounding the events that took place on October 24, 2007 and the subsequent reporting of the accident.
On November 14, 2007, the WCB adjudicator denied the worker’s claim for compensation based on the following factors:
· the worker’s supervisor and foreman both reported that the worker left work early on October 25, 2007 because he stated that his back was sore. Neither the supervisor or foreman could verify that the worker specifically related his back pain to working in a harness the day before;
· the foreman indicated that the worker called a week later to say his back was still sore. The worker did not call in each day between October 26, 2007 and November 5, 2007 to explain his absence from work;
· the worker confirmed to the adjudicator on November 14, 2007 that he did not really report his injury in any detail but rather stated that his back was sore and he would be in touch. The worker confirmed that he did not call his employer at any time over the next week to report that he would not be in to work.
Given that the worker did not seek prompt medical treatment and did not call in to work to explain his absence between October 26, 2007 and November 5, 2007, the adjudicator stated she was unable to establish that the worker’s disability was related to an injury arising “out of and in the course of” the worker’s employment. The worker disagreed with the decision and filed an appeal with Review Office.
On December 18, 2007, Review Office concurred with the adjudicator’s decision that an at-work injury had not been established. Review Office pointed out that the worker did not seek medical attention for his back complaints until November 2, 2007 even though he claimed to have been injured on October 25, 2007. Review Office believed that the worker’s failure to report his accident to his employer or to attend for prompt medical treatment made it difficult to establish that an at-work injury occurred. Review Office felt the worker’s claim was further compromised by the fact that the worker made no attempt to explain his absence from work to his employer until contacting them on November 5, 2007. Review Office noted that the worker had seven prior compensation claims which suggested that the worker should have been aware of proper accident reporting procedures.
On December 31, 2007, a worker advisor appealed Review Office’s decision to the Appeal Commission and requested an oral hearing. On March 17, 2008, the worker advisor provided the Appeal Commission with a report from an occupational medicine physician dated February 20, 2008 for consideration by the appeal panel.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where personal injury by accident arising out of and in the course of employment is caused to a worker.
Worker’s Position
The worker attended the hearing with a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative submitted that the evidence on file supports a finding that the worker suffered an injury as a result of his work duties.
The worker described his duties and his activities on the day of the injury. He advised that his job involves heavy labour and working in awkward positions in confined areas, specifically, working inside holes that have been drilled for piles. On October 24, 2007 he was working in a narrow hole removing a large basketball sized chunk of mud which had fallen into freshly poured concrete. He stated that he was lowered into the hole about 20 times, standing in a large bucket suspended by a cable. He was unable to locate and retrieve the mud so was then fitted into a harness which suspended him from his upper back and was lowered into the hole. He was partially submerged in the concrete, and using rebar to probe for the mud, he was able to locate the mud at full arm’s length distance into the concrete, grab on to it with two hands and was raised from the hole. His lower back was sore but he did not consider this to be serious. The next day his back was worse however he went to work. He worked for part of the day but found his back was too sore and left work.
The worker said that he did tell his employer that his back was sore but did not relate this to his work. When asked about contact with his employer, he said that once he told the employer his back was sore and he would not be working, he did not call them again. He said this was his usual conduct and that he would show up for work when he was fit to return to work. He explained that the employer had a sufficient workforce to assign other staff to the duties, and that this was a common practise.
With respect to a delay in seeking medical attention, the worker advised that he no longer had a family doctor and saw a new doctor on the first available date, November 2, 2007. He also stated that he thought his condition would improve over time and that he did not want to file a claim for a minor injury.
The worker advised that he has not worked since the injury and that he does not think that he is fit to return to work at this time. He has spoken with his employer who has advised that work is available when he has recovered.
The worker’s representative noted the opinion of the occupational medicine physician who examined the worker on February 20, 2008. The physician commented that injury sustained by the worker is consistent with the accident as described. He concluded that the examination and chronology of events reported by the worker are consistent with the injury of October 24, 2007 related to the period when he was in a harness and suspended and submerged in wet concrete. He stated that “The biomechanics would involve altered stresses with traction forces across the SI joint, given how the lower limbs are hanging with kicking and movements in the wet concrete.”
The representative also noted the employer foreman’s statement that they put a ladder down the hole to relieve some of the pressure. He suggested this confirms that the assignment was more demanding than regular duties. As well he noted the supervisor’s statement that he was aware the worker was working in a confined space the day before and assumed that was what was bothering the worker.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For this appeal to be successful, the panel must find that the worker’s injury arose out of and in the course of his employment. The panel did make this finding.
The panel finds, on a balance of probabilities that the worker sustained personal injury from an accident arising out of and in the course of employment and accordingly the worker’s claim is acceptable.
The panel finds that the worker’s injury was consistent with the mechanism of injury. The worker worked in an awkward position, suspended in a harness, partially submerged in concrete. This activity involved extreme positioning which resulted in the worker’s injury. This finding is supported by the occupational health physician who examined the worker and considered the worker’s activities in relation to the injury.
The panel accepts the worker’s explanation that he did advise the employer that he had a sore back although he did not directly attribute this to his work. The panel notes that the employer acknowledged that the worker’s duties could cause his injury. The worker’s supervisor commented to the WCB that although the worker did not mention the harness when he said his back was sore, he noted that the worker had been working in a confined space the day before and assumed that this was bothering him. As well the foreman noted that a ladder was placed in the hole to relieve pressure.
Reference was made to the worker’s failure to seek medical attention on a timely basis. The panel finds the worker’s explanation for the delay to be credible and reasonable in the circumstances. The panel notes that while the worker did not keep his employer informed of his situation, this did not appear to be unusual conduct for the worker. The panel notes the foreman’s comments that he assumed the worker was off doing his own thing as the worker is known to do. Finally, the panel notes that the worker did advise the employer of the injury within the time periods provided by the Act.
The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 14th day of April, 2008