Decision #71/09 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker sustained personal injury by accident arising out of and in the course of his employment. The accident employer disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on May 26, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On October 20, 2008, the worker reported to the WCB that he injured his left shoulder on September 26, 2008 due to the following work related accident:
“…I was carrying some wood and my feet went out from under me and I fell and all the plywood fell on me. There was 2 sheets that were 4' x 8' it was approx 50-60 lbs.”
The worker indicated that he reported the accident to a safety person on September 26, 2008. He said he had been off work since September 30 and his first appointment was on October 3, 2008.
The employer advised the WCB that the worker did not report an accident to the site supervisor or to anyone else at the office. The employer indicated that the worker worked a full day on the day of the alleged accident and worked two full days after the weekend without mentioning an accident. On September 30, 2008, the worker got into a verbal altercation with a fellow employee. He complained to the site supervisor about the altercation but worked the remainder of the day. No one heard from the worker until the employer’s owner called him to get a company phone back and to inform him of his layoff as he had been absent from work for a couple of weeks. On October 15, 2008, the employer received a doctor’s note stating that the worker had to be off work due to “ill health” from October 15 to October 25. The days from October 1 to October 14 were not mentioned. The employer further commented that the accident was not reported until 19 days later and the worker was “MIA” for 15 of those 19 days when any injury could have easily been sustained.
Medical reports show that the worker sought medical treatment on October 3, 2008 and on October 15, 2008 for left elbow complaints. During both visits, the worker reported an elbow injury from falling on a roof while carrying plywood.
On October 17, 2008, the treating physiotherapist reported the worker’s description of accident as “Fell/tripped off of a ledge; fell onto left arm.”
During a telephone conversation with a WCB adjudicator on October 22, 2008, an employer representative advised that the worker was in an altercation with another worker on September 30, 2008. The worker then left the work site and did not return or call in. The next time the worker was heard from was October 15, 2008 when he dropped off a doctor’s note and told them that he was hurt at work. There were no witnesses although someone saw the worker sitting on the roof. The employer indicated that there was no safety person working on the site as was indicated by the worker on his WCB accident report. The worker’s supervisor was unaware of any accident and the worker was laid off for not showing up at work and not calling in.
The adjudicator spoke with the worker on October 22, 2008. The worker indicated that he was hurt on September 26, 2008 while carrying wood on a roof. He mis-stepped because of the slope on the roof and fell onto his left side. The worker stated that he did not make a report of the injury right away but believed that a safety person saw it happen and that the safety person helped him up. The worker provided two names that he thought could be witnesses to the accident. The worker indicated that he took some Advil and tried to shake it off. He missed work on September 29, 2008. The worker indicated that he tried to work on September 30, 2008 but was working slow and one guy started to complain about his slow work. The worker acknowledged that he had some words with the guy but could not work any faster because he had a sore left arm. On October 1, 2008, he stayed home and made an appointment to see a doctor on October 3, 2008. On October 20, 2008 the employer told him he was laid off effective October 17, 2008.
On October 23, 2008, the adjudicator spoke with the safety officer named by the worker. He indicated that he was helping move a pile of plywood over to the next roof and when he turned around, the worker was sitting down beside the pile of wood. The worker did not ask to file a claim or state that he hurt himself. He asked the worker why he was sitting down and he replied that he fell. The safety person indicated that he did not notice the worker displaying any signs of pain in his arm but did notice him limping. He asked the worker if he was hurt and the worker said “no”. He noted that the worker continued to work that day without complaint.
On October 30, 2008, the site supervisor advised the adjudicator that he was not aware of any accident or that the worker had a sore arm.
In a decision dated October 30, 2008, it was indicated to the worker that his claim for compensation was denied as the WCB was unable to establish that his injury arose out of and in the course of his employment. This decision was reached based on the worker’s delay in reporting the injury, a co-worker being unaware of an accident, the delay in seeking medical treatment and the worker’s delay in going off work.
On January 26, 2009, a worker advisor appealed the October 30, 2008 decision to Review Office. The worker advisor outlined the position that there was sufficient evidence on file to support that the worker’s workplace accident occurred on September 26, 2008 resulting in personal injuries to his left shoulder and elbow.
In a decision dated February 12, 2009, Review Office determined from the weight of evidence that the worker suffered an injury by accident at work on September 26, 2008 but that he was not entitled to wage loss benefits. Other than seeking medical attention, Review Office indicated that the worker did nothing to mitigate the consequences of his accident. The worker waited several weeks before appropriately reporting the accident to his employer. Review Office noted that the worker was aware of accident reporting procedures and would have been aware of the employer’s modified duty program for injured workers. Review Office indicated that the worker would not have had a loss of earning capacity as the employer would have provided him with work in keeping with what limitations he had as a result of the accident.
On February 25, 2009, the accident employer appealed the acceptance of the claim to the Appeal Commission 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 employer’s position
Two representatives from the employer were present at the hearing. It was submitted that from all of the available evidence, it was not reasonable to assume that the accident occurred at the workplace. It was noted that the worker completed his full day of work on the day of the alleged accident and then came to work and performed regular duties on September 30, 2008. At no time, did he report any accident or injury to anyone. The alleged accident was not reported until 20 days after it was said to have occurred, even though the worker was a supervisor and was well aware of accident reporting procedures. Multiple factual discrepancies in the WCB file material were also identified. It was submitted that the late reporting and the lack of consistency in facts should be proof that the workplace accident did not occur.
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 he had fulfilled his obligation in accordance with the Act by reporting the accident well within the 30 day requirement set out in subsection 17(1). The evidence supported that an incident did happen on September 26, 2008 and that medical attention was sought on October 3, 2008, which was within a reasonable length of time from the date of the workplace incident. It was submitted that the WCB’s decision to accept the claim should be upheld.
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 left side on September 26, 2008 during the course of his employment as a carpenter. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described an incident on Friday, September 26, 2008 whereby he was working on a roof and carrying two 4 x 8 sheets of plywood. While he was walking, he stumbled over a ledge and fell with the boards landing on top of him. The worker claimed that a co-worker (who was the site safety representative) saw him fall and came over to help him up. He said that the safety representative actually removed the sheets of plywood which had fallen on top of him.
The WCB file material shows that the adjudicator spoke with the safety representative on October 23, 2008. During that conversation, the safety representative stated that on the day in question, he recalled helping the worker move a pile of plywood. He turned around and saw the worker sitting down beside a pile of wood. He asked the worker why he was sitting down and the worker said that he fell. He noticed the worker was limping and (as a safety rep) asked if he was hurt. The worker said no. The worker did not ask to file a green card.
At the hearing, the employer representative confirmed that she had also spoken with the safety representative in October, 2008 about the incident. He confirmed to her that he saw the worker on the ground and asked him if he was hurt. The worker allegedly told him no.
The worker explained that he did not file a report of claim form as he thought that the injury was minor and he was a relatively new employee so he did not want to cause any trouble. He thought he could just work it off. This was despite the fact that he was trained as a site supervisor and therefore ought to have known that all accidents should be reported. His evidence was that everyone suffers minor injuries on the worksite and usually no one reports them. It was Friday near the end of the day and he just wanted to finish and go home. He did not work again until the following Tuesday. On that date, he said that he felt soreness in his left arm and was unable to perform all of his duties. He subsequently got into an argument with a co-worker over workload and had to be reassigned to another area. This was the last day he worked for the employer. The next day (Wednesday) he went to his physician, but was unable to get an appointment until Friday. On the Friday, he saw his physician and the Doctor’s First Report WCB form from examination date October 3, 2008 indicates: “Injury to left shoulder and elbow at work.”
The panel notes that the clinical notes from the sports medicine physician also document a report of falling on the left elbow at work when walking on a roof carrying plywood. The date of the fall, however, is shown as October 3, 2008. The physiotherapist’s report records a fall/trip off a ledge onto the left side, with a date of September 31, 2008.
After reviewing all of the evidence, the panel is satisfied on a balance of probabilities that the worker suffered a fall at work on September 26, 2008. Although the safety representative did not actually see the worker fall, he did verify that the worker told him he fell on the date of the accident. The worker’s explanation as to why he delayed in reporting his accident and seeking medical treatment was credible and reasonable. We note that he did, by October 3, 2008, see his physician about the injury. The description given by the worker of how he fell on his left side while carrying plywood was relatively consistent throughout the file and at the hearing, although the specific date as to when the injury occurred varies as between the medical reports. The panel does not view the uncertainty as to the specific date as being of great significance. There was no evidence presented to the panel which would suggest that the worker was involved in any other activity which could have caused him to injure his left side.
We therefore find that the claim is acceptable. The employer’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerB. Simoneau, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of July, 2009