Decision #51/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a back injury that he related to three incidents that occurred at the workplace on the same day. The claim for compensation was initially denied by primary adjudication on the grounds that it was unable to establish that an accident occurred as defined under subsection 1(1) of The Workers Compensation Act (the “Act”). The decision, however, was overturned by a WCB sector manager on December 6, 2006 and the claim was accepted. The acceptance of the claim was confirmed by Review Office. The employer disagreed and filed an application to appeal with the Appeal Commission and a file review was held on March 4, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on April 3, 2006 for a low back injury that he related to the following events that occurred on March 17, 2006 at a remote work site:

· He and three co-workers were dragging a 33 foot rail into place. While bending at his knees and waist, he pulled on the rail thong with both hands and pulled it towards himself when he felt a sudden burning sensation to his low back;

· Later on the same day, he was at a crossing and slipped on ice. When he tried to catch himself from falling he aggravated the ache in his back;

· At the end of the day, he was standing and talking to a co-worker when another co-worker grabbed him from behind and swung him into the ditch causing him to fall approximately 5 feet. This aggravated his back.

The employer’s injury report stated “The injury is not considered as occurring at work.” Attached to the report was a time line between March 17 and April 10 which stated,

· March 17 – the worker worked all day with his crew;

· March 18 – the worker mentioned he had an ear ache;

· March 19 – the worker had a day off. He went to doctor for a sore back;

· March 20 – T. (foreman) submitted investigation report regarding an ear ache and sore back. The worker was off work for his ear ache.

· March 21 – the worker called the office and advised that he “hurt his back” and it was not work related. Arrangements were made for the worker to travel home.

· March 25 – the worker called T. and advised him that someone had pushed him at work. He indicated that he had CT scan done on March 26 and that he fractured a vertebra and had a herniated disc at C5.

· March 29 – the worker told F. (prairie regional manager) that he thought he had hurt his back on March 18 and that one of the following factors may have contributed to his injury: pulling rail with tongs, slipping on ground near crossing and A. (a co-worker) tried to throw him into a ditch. As of March 29, it was not reported as a work related injury;

· April 10 – M. (worker’s roommate) advised T. that the worker fell out of bed on March 18 and he was trapped between the bed and night table.

A Doctor’s First Report from a physician at a local hospital dated March 26, 2006 indicates that the worker was treated on March 26, 2006, for low back pain and low leg pain. The accident history indicated “Horse Play-guy was fooling around grabbed him behind and thrown into ditch”. The initial diagnosis was low back pain and disc herniation. The worker was subsequently found to have a compression fracture of L1 with possible nerve impingement as well as an old injury to L4-5 area with disc degeneration and osteophytes.

On March 24, 2006, the treating physician referred the worker to an orthopaedic specialist. He stated in his referral letter that the worker had a history of injury to his low back and that he fell over railway tracks a few days ago.

In later correspondence dated April 10, 2006, the employer asked the WCB to fully investigate the claim as the worker indicated that his injury was as a result of a fall while not at work. The employer also contended that the nature of the worker’s diagnosed injury could not have occurred at work as an impact of a significant nature is required to cause his injury. It stated the worker has not provided an incident that would suggest such an impact occurred.

In May and June 2006, the WCB adjudicator contacted the worker to obtain additional information surrounding the events that took place in March 2006. The worker’s foreman was also contacted for additional information.

In a May 19, 2006, report, the attending physician at a clinic near the remote work site said on March 18 he saw the worker who was complaining of lower back pain. The physician questioned whether the worker had otitis media also. On initial assessment the worker said he fell on level ground at a railway. On March 20, the worker attended again complaining of pain in his lower back. The worker advised the physician that he developed the pain after having slid on a railway crossing. He did not mention any work related injury in both incidents.

In a letter dated June 28, 2006, the worker was advised that his claim for compensation had been denied. The adjudicator noted that the information she obtained from the employer was that the worker first reported his injury on March 19, 2006 as a slip and fall on ice that occurred on March 18, 2006 which was not a work related injury. The employer also indicated that there were no witnesses to an injury nor were there any reports or mention of a work place injury to his co-workers. When the worker sought medical treatment on March 18, 2006, he did not report or mention a workplace injury. Given these factors along with the inconsistencies in reporting, the WCB was unable to establish that an accident as defined in Subsection 1(1) of The Workers Compensation Act (the “Act”) arose out of and in the course of his employment.

Subsequent to the decision, the worker provided the adjudicator with the name of the co-worker who grabbed him at work. On October 20, 2006, the adjudicator spoke with the co-worker about his recollections of the three alleged incidents. The co-worker stated there was one day in March when the worker injured his back. The worker came to a group of them and said he had fallen on the railway tracks. He did not witness the fall but the worker told him right after it happened. The coworker could not recall the second incident. He did recall the third incident and confirmed that he came up behind the worker and pulled him into a snow bank. He said he fell to the snow bank and the worker fell on top of him. He said the worker may have mentioned that he hurt his back at that point but he could not recall exactly what was said. About two days later while traveling to the next job site, the worker could hardly sit as he was in so much pain. When they got to the new job, the worker went to emergency and had his back checked out. He was taken off work for one week.

On December 6, 2006, a sector supervisor advised the worker that his claim for compensation had been accepted. The supervisor based her decision on the following rationale:

· the worker injured his back on March 17, 2006. He reported the injury to his employer on March 19, 2006 however it was not initially reported as being work related.

· the accident history provided to the treating physician on March 18, 2006 was consistent with the mechanism of injury reported to the WCB;

· the diagnosis was consistent with the mechanism of injury described; and

· a co-worker was aware of the incident and subsequent injury.

In correspondence dated October 1, 2007, the employer’s Corporate Health and Safety Officer appealed the acceptance of the claim. She pointed to file evidence which showed that the worker had a long history of pre-existing chronic back problems and to inconsistencies noted on the file which suggested that the worker’s back condition was not work related.

In a decision dated November 6, 2007, Review Office confirmed the acceptance of the claim. Review Office stated there were numerous medical reports on file describing anywhere from 1 to 3 work related incidents occurring which the worker had described to multiple physicians and that this was in the worker’s favor. There was also the evidence from the co-worker which indicated that he did grab the worker from behind and pulled him down and was aware of the other incidents the worker described in his WCB claim. Review Office felt that the benefit of doubt should be resolved in the worker’s favor due to the co-worker’s testimony and the numerous medical reports which supported that the worker was involved in work related situations in mid March 2006 which led to the aggravation of an underlying back condition. On November 27, 2007, the employer’s representative disagreed with the decision and filed an appeal with the Appeal Commission.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s low back injury arose out of and in the course of his employment on March 17, 2006.

The employer’s position:

The employer provided a written submission which questions the credibility of the worker. It notes that when the worker saw the initial attending physician, he did not mention any work related injury on either of his two attendances. The employer states that the worker has been inconsistent in his description of what occurred on the date of accident and that the employer’s foreman has heard four different stories from the worker. The credibility of the co-worker is also questioned and it is claimed that the co-worker originally denied knowledge of the incident, then seven months later corroborated the worker’s story. The employer’s submission also questions the nature and extent of the worker’s injury.

The worker’s position:

The worker did not participate in the appeal.

Analysis:

The issue before the panel is whether the worker’s lower back injury arose out of and in the course of his employment on March 17, 2006. In order for the employer’s appeal to be successful, the panel must find that the worker’s lower back condition is not related to the worker’s work-related activities on March 17, 2006. On a balance of probabilities, we are not able to make that finding.

The panel accepts that the worker had a pre-existing lower back condition but finds that on March 17, 2006, there was an aggravation of that condition. Although there have been some variations in the worker’s theory as to the cause of his back pain, there has been a consistent reporting at various times of three incidents which occurred during his shift at the remote worksite on the accident date, any of which the panel finds could have led to the aggravation.

The panel places particular reliance on the report of the attending physician who saw the worker on March 18 and 20, 2006. The report confirms that the worker was suffering from lower back pain the next day and that the worker attributed the pain to a fall at a railway crossing. Although the worker did not advise the attending physician that his fall occurred while he was at work, the panel views this as an omission, rather than a contradictory version of the facts.

With respect to the credibility of the co-worker, the only indication on the file that the co-worker may have denied knowledge of the horseplay was a conversation between the WCB adjudicator and the foreman wherein the foreman advised that he asked “the crew” whether they saw the worker and the co-worker wrestling, to which “the crew” answered they did not. There is no confirmation that the co-worker was part of the crew who was questioned. In a direct conversation between the adjudicator and the co-worker, the co-worker confirmed that he had engaged in horseplay with the worker on the date of the accident. In the circumstances, the panel accepts the first-hand evidence given by the co-worker to the adjudicator.

It is therefore the decision of this panel that the worker suffered injury by accident arising out of and in the course of his employment on March 17, 2006. His claim is therefore acceptable and this appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of April, 2008

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