Decision #64/09 - Type: Workers Compensation
Preamble
In late January 2009, the worker filed a claim with the Workers Compensation Board (“WCB”) for a hernia condition that he related to his work activities on May 23, 2008. The claim for compensation was denied as the WCB was unable to establish a relationship between the worker’s condition and his work activities given his delay in reporting the alleged injury to his employer and in seeking medical attention. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. An appeal panel hearing was held on April 29, 2009 to consider the matter.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Decision: Unanimous
Background
In January 2009, the worker filed a claim with the WCB for a hernia condition that he related to his employment activities on May 23, 2008. The worker attributed his injury to continuous lifting of heavy boxes weighing up to 70 pounds. The worker sought treatment on May 23, 2008 from his doctor after detecting a bulge in his groin. He diagnosed a right inguinal hernia and provided him with a medical certificate indicating that the worker’s medical condition “precludes him from performing any repetitive heavy lifting or carrying weight over 20 to 25 lbs.” The worker advised that he reported the injury to the evening supervisor after having seen his doctor. He continued to work as the hernia was not bothering him, however by January 2009 he reported being in “severe discomfort & pain”.
A September 26, 2008 report from a surgeon reported that the worker “became aware of a right groin swelling in July” which was causing the worker episodic mild discomfort. He diagnosed a right inguinal hernia on the right side which was reducible. The worker preferred to continue with observation and was to return in January for reassessment. When asked why the surgeon’s report stated that he had noticed right groin swelling in July, the worker advised that was an error and that he had only one hernia in May.
The injury was reported to the employer on January 25, 2009. The employer’s accident report indicated that the worker reported a pull in his groin area while lifting heavy boxes at work on May 23, 2008. The worker advised his WCB adjudicator on February 3, 2009 that he had been performing modified duties since the date of the accident and was not involved in any sports or other physical activities.
The WCB adjudicator contacted the worker’s supervisor on February 9, 2009 and he was unable to confirm that a work injury had occurred. The supervisor noted that the worker would have been told to complete a green card if a work injury was reported. He was not aware of any complaints in the last few months and stated that the worker did not appear to be having any difficulty with his job. There was no doctor’s note in the worker’s file nor was there any indication of work restrictions. The employer stated that if the worker had been injured he would be required to complete a capability form.
On February 10, 2009, the worker confirmed to the WCB that he had not completed a green card. When told that his supervisor did not recall receiving a doctor’s note in May 2008, the worker indicated that perhaps he had provided the note to the “acting lead hand”. He recalled advising the supervisor that it was a work related injury and showing him the doctor’s note. He thought that the supervisor photocopied it and that the worker kept the original. The acting lead hand advised the WCB adjudicator on February 10, 2009 that she did not remember hearing of a workplace injury in May 2008 nor could she recall receiving a doctor’s note outlining restrictions.
The WCB adjudicator denied the worker’s claim on February 10, 2009 as she was unable to establish a relationship between the worker’s diagnosed hernia condition and his employment activities, given the worker’s delay in reporting an injury or seeking medical attention. The worker appealed the decision to Review Office on February 27, 2009, and provided the name of a manager (different than either the evening supervisor or the acting lead hand) who he claimed to have provided the doctor’s note in May 2008.
On March 9, 2009, Review Office confirmed the adjudicator’s decision of February 10, 2009, noting the significant delay in bringing the situation to the employer’s attention, and the inconsistencies in the worker’s version of events. Review Office made specific note that the employer had been contacted and that the manager named in the worker’s submission of February 27, 2009 made no mention of having any knowledge of the worker’s injury.
On March 20, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
A hearing proceeded on April 29, 2009 with the worker appearing on his own behalf. The employer’s Safety Coordinator appeared on behalf of the employer.
In order to find in favor of the worker the panel must be satisfied that an injury was sustained by way of an accident that arose out of and in the course of his employment. After having considered all of the evidence, we are not satisfied, on a balance of probabilities, that the worker sustained the injury in May 2008. In making this finding, the panel has carefully considered the oral testimony of the worker, and we find that the worker is not a credible witness. The evidence of the worker with respect to having notified the employer of his injury is inconsistent as to whom he reported and when he did so. At varying times throughout the course of his claim and his subsequent appeals he stated that he reported the injury to his night supervisor, the acting lead hand, and a manager. None of these individuals recalled any report having been made to them. There is no evidence of a medical certificate, or reference to medical restrictions on the worker’s file. When considered in the context of the evidence of the Safety Coordinator for the employer as to the employer’s practices in the event of either work related or non-work related injuries, we find that the worker’s assertion that he reported the injury in May 2008 to the employer is not credible. The Safety Coordinator testified that supervisors are trained to ensure that when a worker presents a medical certificate or sustains an injury at work, a green WCB card is completed, an investigation is commenced and an investigation form prepared. Where a worker is seeking medical treatment he or she will be provided with an abilities assessment form addressing issues such as the worker’s lifting capabilities.
In his evidence before this panel, the worker described having met with the manager in his office to provide him with the physician’s note, and advising him that he would have to change his duties. He testified that he did not discuss his restrictions on lifting, as coincidentally that date was the last on which the worker was required to work in the shipping department. He did however return to his duties as a “bin filler”, and while he had the same supervisor, he never discussed with him the weight restrictions in the May 23, 2008 medical certificate. The worker testified that he simply would not pick up items in excess of 50 pounds, and that his co-workers would lift such items for him. When it was pointed out to him by the panel that the restriction was not to lift more than 20 to 25 pounds, he testified that he was in error and that in fact he would have his co-workers lift items in excess of 20 to 25 pounds. This was in a department where it was not unusual for items that required lifting to be in excess of 50 pounds. The only persons who he specifically discussed restrictions with were co-workers one of whom was a janitor and one who worked as a bin filler. We do not accept that a worker employed in this capacity who placed himself under such stringent restrictions and purportedly provided a note from his physician to his supervisor imposing those restrictions would not have either discussed those restrictions with his employer, or had them identified as a concern by either co-workers or the employer.
When assessing the worker’s credibility we have also taken into account his evidence that he had never before filed a claim for Worker’s Compensation. In fact the worker had filed two previous claims for back injury in 2002 and 2003 when employed by other employers. While it is conceivable that the worker might have forgotten these earlier claims notwithstanding that one involved time loss, his explanation for why the claims were not made by him is, in the panel’s view telling. He testified that these were not claims made by him, and that in fact he had been the victim of identity theft. When further questioned by the panel, the worker advised that what he had referred to as identity theft had actually occurred in 2005, some two years after his earlier claims for compensation.
In all of the circumstances we do not find the worker’s evidence to be credible, and we do not accept that he reported the injury to the employer in May 2008. While there appears to be no doubt that the worker suffered from a right inguinal hernia, there is no evidence that his condition is attributable to a workplace accident. In making this finding we also note that in May 2008 the employee was working a second job providing engine maintenance for a duct cleaning company four hours daily.
The worker’s appeal is dismissed.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 22nd day of June, 2009