Decision #78/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that he related to his employment activities on August 20, 2008. His claim for compensation was denied by primary adjudication and Review Office given the worker’s delay in seeking medical attention and his delay in reporting the incident to his employer. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on May 27, 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 he injured his low back on August 20, 2008 when he was stretching across a table cutting vinyl. The Employer’s Accident Report dated September 26, 2008 stated that the accident was reported to the employer on August 21, 2008, but that the employer was “Not aware of a particular incident. He just called in sick on the 22nd and said he had a sore back.” It is further noted in the Report that the worker commented on August 20, 2008 that he had a sore back. According to the employer this was not unusual. The employer confirmed that the worker had a previous back injury from another employer and that he occasionally missed time from work for a sore back. The employer indicated that they did not know the worker would be off work for the entire week, or that he would be filing a WCB claim.

On August 22, 2008 the worker phoned his treating physician who prescribed medication that he had previously taken for back problems. The worker had prior claims with the WCB for a central disc herniation in 1993 and a subsequent injury to his back again in 2004. The worker returned to work on September 2, 2008 and worked the full day although he reported that he was in a lot of pain.

A Doctor’s First Report confirms that the worker saw his family physician on September 3, 2008 and reported that he developed low back pain while cutting heavy fabric on August 20, 2008. The report indicated that the worker was disabled from work and could return to duties on September 8, 2008 with restrictions.

On September 8, 2008, the worker explained to the adjudicator that the injury had occurred on August 20, 2008 when he was stretching across a table to cut vinyl and he felt something pull in his low back. He saw his doctor the following day for an unrelated issue, but did not mention his back at that time. On the following day at work after less than half an hour he reported to the plant manager that his back was “really bad”. Although he phoned his doctor the next day, he was unable to obtain an appointment for that day.

The employer reported to the adjudicator that the worker had a chronic sore back and that he missed time frequently for back pain. On September 18, 2008, the plant manager reported that when the worker had called in sick and stated that he had a sore back, he had not mentioned that it was work related. A week later the worker advised his employer that the injury had occurred when he was reaching across the table.

In an adjudicative decision dated September 19, 2008, the worker was told that the WCB was unable to accept his claim for compensation as there was not enough evidence to conclude that the onset of his low back difficulties was related to the incident occurring on August 20, 2008. The worker was advised that his delay in seeking medical treatment and the delay in reporting the injury to his employer was the basis for the decision.

On December 28, 2008, the worker requested that Review Office reconsider the September 19, 2008 adjudicative decision.

On January 12, 2009, Review Office stated that it was unable to substantiate the worker’s claim that he had incurred a compensable injury in the workplace on August 20, 2008 due to the significant delay in the reporting of the incident to the employer. When reaching its decision, Review Office noted:

· The worker did not advise his employer of any alleged incident occurring on or around August 20, 2008. He simply phoned in and declared that he had a sore back.

· The employer advised that it was one week later when they were told that the worker was now relating his injury to an incident having occurred one week prior.

· The employer pointed out that the worker had chronic back complaints before August 20, 2008 and that the worker’s back problems after August 20, 2008 were simply more of the same complaints that he had brought to their attention in the past.

On February 12, 2009, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The worker appeared and was represented by a worker advisor, with no one appearing on behalf of the employer.

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. This requires us to reach the conclusion that the worker’s injury was causally related to his workplace duties. After reviewing all of the evidence we are satisfied on a balance of probabilities that the worker’s injury is related to an injury which occurred in the course of his employment on August 20, 2008.

The worker had two prior compensable injuries to his back, one in 1993 and one in 2004, and he has continued to experience intermittent flare-ups since that time. The worker would manage the flare-ups with medication, rest and physiotherapy or massage. While the condition would typically last two to three days, he did not submit claims to the WCB for his occasional time loss. The worker described in his evidence that over the preceding year the flare-ups were occurring with increasing frequency and duration, which he attributed to having assumed a new duty that had previously been contracted out by his employer. He described having to stretch his body over a table that was six feet wide, and five yards long, in order to cut layers of fabric with a heavy upholstery knife. He would perform this task two to three times per week, and he found that the stretching that he was required to do aggravated his back so much that on average he was missing one to two days per month from work due to pain in his back.

On the day of the incident the worker felt a sudden pain which radiated down his leg, gradually getting worse until he was unable to continue in his duties. In his evidence he stated that he informed his employer that day that “I have got to go home. It’s my back. I did that big cut and I just can’t stand it”. The worker’s expectation was that with medication and rest the pain would subside as it had in the past. It did not, however, and ultimately he was told by his physician that he should take two weeks off. He subsequently returned to light duties four hours per day until he was laid off by the employer in October 2008.

Having considered all of the evidence we are satisfied on a balance of probabilities that an incident occurred on August 20, 2008 when the worker was stretching over the cutting table and attempting to complete a cut. Given the history described by the worker of pain caused by stretching, and the increasing frequency of flare-ups following the change in the worker’s duties, the sudden onset of pain on August 20, 2008 undoubtedly resulted from the worker’s duties on that day. In the Doctor’s First Report the worker was diagnosed as having sustained a low back strain, as a result of which restrictions were imposed on him for a period of two weeks. We accept the worker’s submission that this incident on August 20, 2008 aggravated a pre-existing condition resulting in the worker’s loss of earning capacity.

The Review Office decision denying the worker’s claim was premised on the conclusion that the worker had failed to report his injury to his employer on a timely basis. The evidence before the panel was that the worker did inform his employer on August 20, 2008 that his back was sore and that he attributed it to having cut fabric. This is at least partially confirmed in the Employer’s Accident Report which states that on the day of the incident, August 20, 2008, the worker reported a “sore back”. On the following day the worker reported an injury to the plant supervisor. Then the worker “called in sick on the 22nd and said he had a sore back.” According to the employer it was one week later that the worker advised that he attributed the cause of his injury to his workplace. Even in the absence of the worker’s evidence as to the nature of his initial reporting, we are satisfied that any delay in advising the employer of the precise cause of the injury was not unreasonable given the history of the worker’s condition and occasional time loss. Similarly, the worker sought medical treatment on August 22, 2008 when he contacted his physician and obtained a prescription. We do not find that there was any delay in seeking medical treatment that would warrant a denial of the worker’s claim.

We therefore allow the appeal.

Panel Members

K. Dangerfield, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 21st day of July, 2009

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