Decision #36/09 - Type: Workers Compensation
Preamble
On June 23, 2008, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred while at work on May 17, 2008. The claim for compensation was denied by primary adjudication and Review Office as both were unable to find that the worker suffered an injury that arose out of and in the course of his employment. In September 2008, the worker appealed Review Office’s decision to the Appeal Commission through the Worker Advisor Office and a hearing was held on February 5, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported to the WCB that while carrying a five gallon pail of drywall mud on May 20, 2008, he strained his low back region when the pail caught the corner of a baker and he turned sideways to prevent the pail from striking him and splattering its contents. The worker indicated that he went home that day and his back was a bit sore. He then worked the next two days and his back pain worsened. About three or four days later, he had swelling and inflammation in the low back on both sides, especially the left. The worker indicated that he reported the May 20, 2008 incident to his employer around May 23, 2008. The worker further stated that he delayed in seeking medical treatment until June 25, 2008 as he had time off work and thought he would get better by then. He said his back was constantly sore and uncomfortable.
The employer’s injury report documented that the worker bent over to lift up a pail onto a table, hit the table with the pail, and jarred his back.
Medical information revealed that the worker was seen by a physician on June 25, 2008. The worker reported to the physician that he hurt his lower back at work while carrying a pail on May 20, 2008 and that the pain increased over 2 days. He complained of lumbar pain, left more than right, with no radiation. The diagnosis provided was lumbar discogenic strain and degenerative disc disease L5-S1.
When speaking with a WCB adjudicator on July 7, 2008, the worker advised that the date of accident was Saturday, May 17 and that he first mentioned the injury to his boss on May 23. He made no ongoing complaints to co-workers as he worked by himself as a subcontractor. His low back worsened and got inflamed about 4 or 5 days after the injury. He noted that his employer called him on June 12 or 13 to offer him more work and that he called the employer on June 18 to advise that his low back was still in pain and that he would not be able to work.
On July 8, 2008, the worker was advised by primary adjudication that given the delay in reporting his injury to the employer and his delay in seeking medical treatment, the WCB was unable to establish a relationship between the development of his low back difficulties and an accident “arising out of and in the course” of his employment. In August 2008, the worker appealed this decision to Review Office.
In a decision dated August 28, 2008, Review Office confirmed that the worker’s claim for compensation was not acceptable. In making its decision, Review Office placed weight on the fact that the worker did not report the May 17, 2008 injury to his employer until May 23, 2008 which represented a six day delay and did not seek medical attention until more than five weeks after the incident. For these reasons, Review Office found that the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of his employment on May 17, 2008. On September 3, 2008, a worker advisor appealed Review Office’s decision on behalf of the worker and a hearing was arranged.
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 worker’s position:
The worker was assisted by a worker advisor at the hearing. The position advanced on behalf of the worker was that the worker had suffered a strain on his back due to the workplace injury and his attempts at continuing to work for the two day period following the accident. After completing the job on which he was working, he was not able to continue to work again and he informed his employer of the injury two days later, on May 23, 2008. He feels that unfortunately, due to the workplace injury, he is unable to return to the very intense work that he had been performing. Although notice provisions were not strictly followed by the worker, it was submitted that any delays were understandable, given the worker’s outlook for improvement. Overall, the worker’s claim was legitimate and should be accepted by the WCB.
Analysis:
The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to his back during the course of his employment. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described an incident on Saturday, May 17, 2008 whereby he was attempting to lift a large pail of drywall material onto a four foot high scaffold referred to as a “baker”. When he went to lift the pail, he did not lift it high enough and he hit the bottom of the pail on the baker. Rather than let the pail and its contents spill, he twisted approximately 180 degrees to the right and was able to bring the pail back down to the floor in a controlled manner. There was a fair amount of momentum to the pail and he could tell that the movement had been strenuous. He wondered whether he had hurt his back but continued to work as the job needed to be completed. Over the next one and a half hours, he began to feel increasing discomfort. By that point, he knew he had done something to his back, but thought that it would go away.
The next two days were the Sunday and Monday of the Victoria Day long weekend, so the worker just rested for those days. When he went back to work on Tuesday, he felt okay, but within ¾ hour, he felt the discomfort come back. As the day went on, it got worse and worse. By the end of the 6 hour day, he was in significant pain and his back was aching. He did not want to work the next day because of the pain, but there was no one reliable whom he could call to finish the work. As a subcontractor, the worker was largely in control of his flow of work and how many jobs he would accept. At the same time, however, he was responsible for completing the work and it was not an easy task for him to simply call the lead contractor and say he would not be coming to work. The worker therefore struggled through the next day to complete the job and he did sanding for approximately 4-5 hours. By the last hour, his left lower back was stinging.
The worker explained that he did not file a WCB claim as he thought that he would be okay after a few days rest. He did call the lead contractor on May 23, 2008 to report the incident. As he was a sub-contractor, he could self-regulate his work flow and had the discretion to take some time off between jobs. The worker remained at home resting for the next few weeks, waiting for the condition to resolve. By the end of the third week, he realized that he was not getting better and at that point he felt he had better put in a claim with the WCB.
The panel notes the worker’s evidence given at the hearing that on two occasions in the year prior to the accident, he had experienced soreness in his back. In those instances, he took a few weeks off between jobs and found that the symptoms resolved on their own. He never claimed WCB coverage for these incidents. He had thought that the May 17, 2008 symptoms would resolve in the same manner as had his previous back pain.
In the panel’s opinion, the worker’s claim for compensation should be accepted. His explanation as to why he delayed in reporting his accident and seeking medical treatment was credible and reasonable. We note that he did, by May 23, 2008, report the injury to the lead contractor. The description given by the worker of how his injury occurred was consistent throughout the file and at the hearing, with the exception of the specific date as to when the injury occurred. The panel does not view the uncertainty as to the specific date as being of much consequence. The worker’s evidence at the hearing was that he was not involved in any sports or other physical activities at the time.
The physician’s notes from the worker’s June 25, 2008 visit identify lumbar discogenic strain (pain on left greater than right) and degenerative disc disease L5/S1. The panel accepts that the mechanism of injury described by the worker is consistent with the development of a left-sided lumbar discogenic strain and we find that his claim for this injury is acceptable. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 17th day of March, 2009