Decision #144/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for injuries he sustained in a work related accident on November 28, 2007. Both primary adjudication and Review Office confirmed that the worker experienced a workplace accident on November 28, 2007 but were unable to relate his ongoing difficulties to the accident. They determined that he was not entitled to wage loss or medical aid benefits. The worker disagreed and filed an appeal with the Appeal Commission through the Worker Advisor Office. A hearing was held on September 17, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits.

Decision

That the worker is entitled to wage loss and medical aid benefits beyond December 1, 2007.

Decision: Unanimous

Background

On November 28, 2007, the worker was carrying a large stock pot filled with hot liquid when his right foot hit a wet spot and he slipped. He said he held the pot while his knee went down. He kept his arms straight out and was using the strength in his arms and back. He instantly went to the ground and let go of the pot. He felt an instant pain in his shoulder and back and a severe painful pull.

A report from the employer indicated that on December 1, 2007, the worker said he hurt his back while shoveling snow. He looked as though he was in pain but he continued to work at his employer’s request. Later in the afternoon, the worker told her he slipped and fell this past Thursday, November 29 while holding a pot. A co-worker confirmed that she saw the worker fall. Upon checking the staff time sheets it was learned that the co-worker’s day off was on November 29 when the worker said he fell and she witnessed it. The employer indicated that the stories were not adding up.

In order to adjudicate the claim, staff from primary adjudication contacted both the worker and the employer to obtain additional information surrounding the reporting of the claim, the worker’s alleged back injury while shoveling snow, etc.

In a decision dated January 8, 2008, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to relate his current condition to a workplace accident. It was noted that the worker sought medical attention on December 3, 2007 and was diagnosed with a right shoulder strain and a low back strain. Although the WCB was able to confirm that the worker was involved in a workplace accident on November 28, 2007, it was unable to confirm that his ongoing difficulties were related to the workplace accident. It noted that the worker reported a secondary non-work injury and became disabled from work after that and did not seek medical treatment until December 3, 2007 which was following the alleged secondary accident. The WCB was unable to confirm a diagnosis related to his workplace accident given the delay in medical treatment. It was stated that the WCB was not able to establish that the worker’s ongoing right shoulder, upper, middle and low back difficulties resulted from his workplace accident on November 28 and as such, no responsibility was being accepted for his ongoing difficulties including medical treatment and time loss from work.

On February 14, 2008 a worker advisor appealed the above decision to Review Office. The worker advisor referred to the following evidence to support the position that the worker suffered a workplace injury to his right shoulder and back on November 28, 2007:

  • The reported mechanism of injury provided by the worker wherein he slipped while carrying a pot of hot liquid;
  • File note of December 18, 2007 where it was documented that a co-worker saw the worker slip and drop the pail of soup or something in it and that he grabbed his shoulder; and
  • The employer’s letter of December 3, 2007 which confirms that the worker reported his workplace accident on December 1, 2007.

The worker advisor also indicated that the file evidence supports that the worker was entitled to benefits for his right shoulder and back based on the first doctor’s report dated December 3, 2007. She stated that an injured worker has up to one year to file with the WCB in accordance with legislation and therefore 12 days to report to the WCB was acceptable. The worker advisor also provided evidence from Environment Canada Daily Data Reports to show that there were no large snow amounts in the beginning of December 2007. The worker advisor noted that the worker was seeking wage loss benefits for two weeks and coverage for physiotherapy treatments related to his workplace accident.

As the worker advisor’s submission contained new evidence that was not seen by primary adjudication, Review Office referred the case back to primary adjudication to consider the new evidence.

On February 27, 2008, the adjudicator noted that she reviewed the new information and that no change would be made to the original decision. It was indicated that based on all the information, the WCB established an accident occurred at work. However, in the absence of ongoing complaints to the employer or co-workers and the delay in seeking medical attention, the WCB was unable to establish that the worker’s ongoing difficulties were related to the November 28, 2007 workplace accident.

In a further submission to Review Office dated March 28, 2008, the worker advisor provided the following information in support of benefits and services to the worker as related to the November 28, 2007 workplace accident/injury:

  • the initial report by the treating physician dated December 3, 2007, “slipped on wet floor with injuries of right shoulder sprain lower back strain”. The worker advisor stated “This is not a delay in medical attention.”
  • the physiotherapy report of December 12, 2007 identified restrictions of decreased heavy lifting and avoid prolonged standing related to slipping at work carrying large pot.
  • the December 11, 2007 medical report which states that the return to work date was unknown as the worker attempted to return to work but was unable to continue.

On April 10, 2008, Review Office determined that the worker was not entitled to wage loss benefits. Review Office found the worker sustained injuries on November 28, 2007 and was able to continue his shift and worked his full shift on November 29, 2007. There was no confirmation of the worker’s difficulties on November 28, 2007 or November 29, 2007. November 30, 2007 was the worker’s scheduled day off. He did not report any difficulties to his employer until December 1, 2007 and he first related his difficulties to a non-work related incident. Review Office found the five day delay in seeking medical treatment was significant given the fact there was no confirmation of difficulties on November 28, 2007 or November 29, 2007; the worker reported difficulties following a scheduled day off and he first reported injuring himself in a non-work related incident.

Review Office indicated that there was insufficient evidence to support a continuity of signs and symptoms and therefore was unable to establish a causal relationship between the worker’s ongoing difficulties and accident on November 28, 2007.

On May 23, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

The Oral Hearing

The oral hearing took place on September 17, 2008.

The worker confirmed that he had not experienced any problems with his back or right shoulder prior to the November 28, 2007 accident. His representative suggested that this evidence was supported by the fact that his employer had noted that the worker had not identified any complaints relating to his back or right shoulder before the November 28, 2007 accident.

The worker indicated that at the time in question, he was engaged as a “sous chef”. While the “sous chef” is normally the number two person in the kitchen, the worker’s supervisor was out of the province on November 28 and 29, 2007. As a consequence, the worker was in charge of the kitchen on these days and unable to leave his work duties.

With regard to November 28, 2007, the worker noted that there were two persons working in the kitchen. His representative described the accident as one in which the worker was carrying a large stock pot of hot liquid then slipped, dropped the pail and immediately grabbed his shoulder.

The worker indicated that the accident took place in the afternoon and that he did not leave work until about 10:00 in the evening. He said that while he felt immediate pain, he had to finish his shift because the chef was away. He testified that he treated his work place injury with Advil and a hot shower.

The worker stated that although he was in pain, he had to work the next day because “he had no choice”. The chef was away. The worker noted that there were two other people in the kitchen the next day including a student from Red River College and a dish washer. He suggested that for the period of time in which the student was there, he was able to limit the job’s physical demands by supervising the student who performed a number of the cooking tasks.

The worker originally stated that he worked on November 30, 2007. Upon reflection, he indicated that he did not work that day.

With regard to the events of December 1, 2007, the worker stated that he originally asked his supervisor for a couple of days of rest. He suggested that because his supervisor felt she needed him at work she offered to “give you a stool and bring in a couple kids to help you out.” He worked for part of December 1, 2007.

In terms of reporting his workplace accident, the worker noted that earlier in the year he had been wrongfully incarcerated for five days without notice to his employer. In his view, this incident had created some tension with his supervisor. Therefore he initially told his supervisor that he injured his back shoveling snow rather than at the workplace out of fear of further damaging his relationship with his supervisor. He admitted that “it was just a stupid thing to say. I was…worried about my job because of the five days in jail...”.

The worker observed that he quickly corrected his inaccurate statement:

I went right back upstairs and [a co-worker] said, she’s “Like what are you doing? Go tell the truth right now” and I went right back downstairs and told them.

In supporting the argument that the worker had suffered a loss of earning capacity and a need for medical aid benefits as a result of his workplace injuries, the worker’s representative stated or suggested that:

  • the credibility of the worker’s version of the accident was bolstered by the consistent description of the accident offered by his co-worker;
  • the co-worker’s observation that the worker immediately grabbed his shoulder after the accident provides contemporaneous corroboration of the worker’s suggestion that there was a causal relationship between the workplace accident and the injury;
  • the December 1, 2007 evidence from the worker’s supervisor that the worker had reported an injury, “looked as though he was in pain but he continued to work at my request” provided support for the reality of the worker’s injury and an indication of the workplace demands that helped to explain why the worker did not feel able to leave his job on November 28 or 29, 2007;
  • the co-worker’s evidence that the worker needed a stool provided support of the seriousness of his injury;
  • the mechanism of injury was consistent with the worker and his co-worker’s description of the workplace accident and his resulting injury. This conclusion was supported by the doctor’s report of December 3, 2007 which related the worker’s shoulder and lower back injury to slipping on a wet floor;
  • the doctor’s findings on December 3 and 11, 2007 of shoulder and lower back pain and the physiotherapist’s findings on December 1, 2007 of shoulder and back injury provided consistent, objective support for the worker’s description of the injuries flowing from the accident.

The worker’s representative suggested that the doctor’s findings on December 3 and December 11, 2007 that the worker was unable to work as well as the physiotherapist’s restrictions of December 3, 2007 provided support for the contention that the worker was unable to work as a result of his injuries. The worker and his representative also noted that the worker required physiotherapy treatment as a result of his injury.

A question was also raised by the representative as to whether the subsequent chiropractic and massage treatment received by the worker in early 2008 was related to his workplace injury.

Reasons

Overview

Based on a balance of probabilities and considering the evidence as a whole, the panel finds that the worker suffered injuries to his lower back and right shoulder as a result of a workplace accident that took place on November 28, 2007. The panel also finds, based on a balance of probabilities, that as a consequence of the injuries, the worker suffered a loss of earning capacity beyond December 1, 2007 and required the provision of certain medical aid benefits including physiotherapy. The panel leaves for subsequent determination by the WCB the date of recovery and/or the duration of medical aid benefits. This includes the issue of whether the chiropractic and massage treatment received by the worker in early 2008 was related to his workplace injury.

The Act

Subsection 4(1) of The Workers Compensation Act (“the Act”) provides that

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:

Subsection 4(2) of the Act provides that:

where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from accident on any working day after the day of the accident

Key Findings

There is little question that the worker was unable to work after December 1, 2007 due to back and shoulder injuries. There is also no doubt that the worker suffered a workplace accident. The key question is whether the worker’s injuries were a consequence of his workplace accident.

Based on the record as a whole and the worker’s evidence regarding apparent discrepancies noted earlier in the claim history, the panel accepts based on a balance of probabilities, the worker’s description of the workplace accident and the injuries to his lower back and right shoulder that resulted.

The panel notes that the worker’s version of the accident and of the pain to his right shoulder are supported by the evidence of his co-worker. In particular, the panel notes the co-worker’s suggestion that the worker immediately grabbed his shoulder is strong corroboration of the suggested causal link between the worker’s accident and his injury. In giving weight to the co-worker’s version of events, the panel observes that the co-worker had no vested interest in a positive result for the worker.

While the worker continued to work on November 28, November 29 and December 1, 2007 and did not seek medical treatment until December 3, 2007, the panel accepts the worker’s statement that he stayed at work despite increased discomfort on November 28 and 29 due to the fact that his supervisor was out of the province.

The panel finds support for the worker’s version of events in his supervisor’s December 1, 2007 observation that the worker appeared to be in pain. It notes the provision of a stool to the worker on December 1, 2007 to enable him to stay at work. The panel also accepts the objective findings of the doctor and the physiotherapist that the worker had pain in his right shoulder and lower back muscles.

In terms of the mechanism of injury, the panel relies upon the December 3, 2007 finding by the doctor which related the worker’s shoulder and lower back injury to slipping on a wet floor. In the panel’s view, the mechanism of injury is consistent with the description of the workplace injury and the objective findings of the doctor and the physiotherapist as to the nature of the worker’s injuries.

While the worker originally told his supervisor on December 1, 2007 that his injuries were the result of shoveling snow, the panel finds based upon a balance of probabilities that this statement was inaccurate. In making this finding, the panel accepts the worker’s evidence that his inaccurate statement “was just a stupid thing to say. I was…worried about my job because of the five days in jail...”. It notes that the worker quickly corrected his statement after discussing his actions with the co-worker who witnessed the accident.

The panel also accepts that as a result of the worker’s injury he required medical aid benefits in the form of physiotherapy. As noted earlier, the panel leaves for subsequent determination by the WCB the question of whether the chiropractic and massage treatment received by the worker in early 2008 was related to his workplace injury.

Conclusion

Based on a balance of probabilities and considering the evidence as a whole, the appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 14th day of November, 2008

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