Decision #17/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for an injury that occurred at work on March 12, 2008 when he slipped and fell in the employer’s parking lot. The claim for compensation was accepted by primary adjudication but the decision was reversed by Review Office on June 24, 2008 on the basis that the worker’s injury did not arise out of and in the course of his employment. A worker advisor, acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and a hearing was held on December 10, 2008 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker advised the WCB that he injured himself in the employer’s parking lot when he fell on March 12, 2008.
The employer’s accident report stated that the worker’s brother spoke with the team leader on approximately March 18, 2006. He stated that the worker “had slipped in the parking lot of one of our other buildings after dropping off one of their wife’s (sic) and parking there. While walking from that building to the building they worked in, he slipped. The brother said this happened about a week prior to him reporting it. Approx the 11th or 12th of March.”
It was also indicated on the employer’s accident report that”
“…The employee did not seek medical attention until March 18th or 19th (unsure). From the time of the said incident date, the employee continued his duties as well as working overtime on Saturday, March 15, 2008 for 5 hours and then again for 1 hour on Thursday, March 20, 2008. The supervisor did offer restricted duties to the employee after finding out from the brother of the incident, but upholstery training is more of a modified job from an actual upholsterer. (as per the supervisor). The employee worked on March 24, 2008, but did not show up for work on March 25th, 08 and sent the Dr. note (from March 24th) in with his brother. The note specifies modified duties and physio is recommended but does not say the employee was to be off work.”
On April 9, 2008, the worker advised his WCB adjudicator that he did not report the accident earlier as his back was not that sore initially but it progressively worsened. There was no other incident that occurred between March 12 and March 18. The worker confirmed that light duties were offered to him by his employer. He attended physiotherapy on April 1 and has not returned since. He was waiting to get an appointment.
On April 9, 2008, a co-worker advised the WCB adjudicator that he was a passenger in the worker’s vehicle and he witnessed the worker slip and fall on ice at 6:45 a.m. on March 12, 2008.
On April 14, 2008, the WCB adjudicator advised the worker that “There is no evidence you were advised to remain off work by a healthcare provider on March 25, 2008. As a result we are unable to pay wage loss benefits for that day. However we will be paying wage loss benefits commencing on March 31, 2008.”
In a letter to Review Office dated April 23, 2008, the accident employer appealed the WCB’s decision to accept the claim on the grounds that the worker did not report the alleged incident until March 18, 2008, he had no difficulty in performing his regular duties or overtime hours and the only witnesses to the alleged fall were the worker’s brother and his sister-in-law.
On April 28, 2008, the worker’s son advised the WCB that his father worked part time with another employer and that he was missing time from that employment due to his compensable accident.
On May 1, 2008, information received from the concurrent employer was that the worker’s spouse called to report that the worker was unable to work as a result of an injury occurring at home in which he fell down a flight of stairs. This report of accident was confirmed by a co-worker who spoke with the worker’s wife in the presence of the employer. When speaking with a WCB case manager on May 26, 2008, this same co-worker advised that according to the worker’s wife, the worker was picking up a sofa at his other job (furniture factory) when he felt a pain in his low back. He collapsed and fell to the floor hurting his low back. He works in the sofa factory “packing department”.
In a decision dated May 5, 2008, the case manager confirmed to the employer that the worker’s claim was accepted and that wage loss benefits commenced on March 31, 2008 and were presently ongoing. The case manager indicated that the worker sought medical treatment within a reasonable time frame. He provided the same accident history to the doctor as his brother did when reporting the accident, plus he made ongoing complaints to a co-worker. The case manager noted that the worker’s regular duties primarily involved watching/observing his co-workers and when possible, trying the work on his own. Therefore his regular duties were generally consistent with the restrictions. It was indicated that the medical evidence on file was consistent with the mechanism of injury.
On June 24, 2008, Review Office overturned the decision that the worker’s claim was acceptable. Following examination of all the evidence, which included an opinion expressed by a WCB medical advisor, Review Office indicated that the weight of evidence favored an alternate event to that reported by the worker. It stated that the weight of evidence supported that while the worker sustained an injury, on balance of probabilities, his injury did not occur at work. On September 11, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s submission
The worker was assisted by his worker advisor and a translator in providing his evidence. He commenced working with the accident employer within a month of coming to Canada. He does not drive, does not speak English and had his brother assist him in reporting the accident to his team leader. Other than reporting this incident to the employer the worker states he has not had any other accidents with the accident employer and was not aware of WCB reporting until now.
The worker submitted that he had secured a new position with the employer that commenced on March 10, 2008. He had observed the position for several days and then bought steel toed boots so he could continue with his training.
On March 12, 2008 wearing his steel toed boots for the first time, he rode to work with his brother, sister in law, his wife and another individual. His evidence was that his wife had started walking to the building she works in and he started walking towards his building when he fell onto his buttocks hard. His wife saw his fall and came to assist him with getting up.
He worked his full shift that day but said he was in considerable pain and took natural remedies that evening. The following day he attempted to get an appointment with his physician but the earliest one available was March 17, 2008. His reasons on how he managed to continue working in so much pain were twofold: a) he was part of a training team and had lighter work and observation and 2) he very much wanted this job and had to wait a considerable time for it and didn’t want to jeopardize his future.
With regards to the overtime shift, the worker attended with his brother on a Saturday and completed lighter work in the new position.
Employer’s Submission
The employer submitted that the worker delayed in reporting an acute traumatic event to them. They also raised the possibility of an alternate event occurring at home or from lifting a sofa. They agreed the worker suffered an injury to his sacrum, however disputed that it occurred in their parking lot. They questioned the worker’s ability to continue to work both his shift and additional shifts with such a substantial injury. To support their position they referenced a comment from the WCB medical advisor who stated “The ability to work regular duties and in fact additional hours would not be anticipated following such an injury. Symptoms would be expected to be maximal at the time of the injury and in the following 3 to 4 days, with gradual resolution of symptoms and increase in function following with the subsequent passage of time.”
Alternate event
The employer submitted that information on file and from the concurrent employer establishes an event other than the parking lot fall. The worker identifies only the parking lot fall as his injury. He did miss work with the concurrent employer but only because of the fall and resulting restrictions. It was submitted that with inaccurate statements and translation, the panel should find there was only one accident, that being the fall in the parking lot.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For his appeal to be successful we must find that he suffered an injury by accident which arose out of and in the course of his employment in accordance with subsection 4(1) of The Workers Compensation Act (“the Act”). We accept that the worker fell in the employer’s parking lot and consequently find this constitutes an accident. We further find there was not an alternate event that occurred.
Regarding the alternate event the panel finds differently from Review Office. Firstly, the worker only reported one accident, that being the parking lot fall. When we examined the other scenarios reported by the concurrent employer we find there is a definite language barrier that raises questions about the authenticity of the translation, and the credibility of the information provided as versions of the alternate event changed.
With respect to the mechanism of injury and of symptomatology, the panel has placed significant weight on the reports from the worker’s physician and physiotherapist. The worker’s physician first sees him on March 17, 2008 and notes the worker’s description of injury to be “Fell onto his buttock at parking lot.” The diagnosis was noted as a fractured sacrum. She provides further comment regarding the mechanism of injury in a letter of December 1, 2008. She notes:
“ I can objectively and medically say that when an individual slipped and fell on icy and flat surface, that person’s body was thrown up in the air when slipping and hit the flat ground with single point of contact/impact/injury upon falling since the natural human response was to curl up when thrown up during a fall. In Mr. [workers] case, when I physically and objectively examined him on March 17, 2008, there were no bruises or laceration on his back, there was only one single tender area on the coccygeal area-which is supported by the radiologist report.
Based on the above-mentioned facts, I can only say that Mr. [worker] symptoms and injury resulted from fall on flat surface; hence, at the employer’s parking lot and a WCB compensable claim. It did not match the type of injury resulting from a fall on a flight of stair (sic); hence not at home.”
The physiotherapist, when questioned by WCB about a distal sacral fracture causing immediate disabling symptoms or a progression of symptoms, indicates there would be immediate symptoms and low back pain; however, it is possible that he could have continued to work. It would depend on his pain tolerance. She confirmed that the worker presented with right SI joint issues.
With respect to reporting his injury, the panel finds the worker reported his injury to the employer and the WCB within the legislated time frames and sought medical attention in a timely fashion.
With respect to the witnessing of an accident, the panel accepts the witnesses’ reports on file and that the worker’s wife witnessed his fall and assisted him to stand up immediately following the incident. The fall in the parking lot fits with the mechanism of injury and the resulting fracture to the sacrum.
In conclusion, the panel finds on a balance of probabilities that the worker has suffered an accident and his claim is therefore acceptable.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 19th day of January, 2009