Decision #115/10 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that the worker suffered an accident at work on October 28, 2009 during the course of her employment. A file review was held on November 22, 2010 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On November 9, 2009, the worker filed a claim with the WCB for a low back injury that occurred on October 28, 2009. The worker stated that she felt pain when lifting a box weighing 25 pounds. She picked the box off the trolly at approximately ankle height. She lifted the box and stayed bent over and then turned to the left to put the box on the floor. She felt a little pain in her back and ever since then she started to get really bad back pains and spasms. The worker stated that she delayed in seeking medical attention as she could not get the time off work. Her last day at work was October 30, 2009.
Information obtained from the employer in a letter dated November 11, 2009 stated that the worker provided the store manager with a doctor's note on October 31, 2009 that she would be off work for two weeks due to a back injury. At this time, the worker did not indicate that the injury was work related. The store manager knew that the worker had been in the process of moving homes for two weeks prior and assumed that the injury was due to packing her belongings. On November 9, 2009, the worker provided the store manager with a note from her chiropractor and advised that the injury was due to work. The worker claimed that her injury occurred on October 28, 2009 when she was putting stock out on the floor that involved working the stock that was packed in boxes on a trolley and merchandizing the product. The boxes weighed 5 to 30 pounds and she worked her way through unpacking the boxes and stocking the items.
The employer noted that when the worker arrived for her shift on October 28, 2009, she indicated that her back was sore before she started working her shift. She worked the entire shift on this date and continued to work her shifts until the end of her October 30, 2009 shift. The employer indicated that the worker had been offered modified duties but did not accept them as she wanted to confer with her chiropractor first.
A chiropractor's first report showed that the worker attended for treatment on October 31, 2009. The worker's description of injury was "Acute LBP - began after lifting & unloading boxes - repetitive bending, twisting & lifting". The diagnosis was acute disc injury at the L5-S1 level.
When speaking with a WCB adjudicator on November 20, 2009, the worker indicated that she had several discussions with a manager regarding her injury. She said it was possible there was a miscommunication between them in knowing that it was a workplace accident because the worker turned in a medical note to the employer on October 31. The worker recalled speaking with a specific co-worker and discussing a workplace accident. The worker stated that she has never had a back injury or any other back injury. She denied any back problems/symptoms prior to the injury.
On November 24, 2009, the adjudicator contacted the co-worker identified by the worker. The co-worker stated she did not witness an injury nor did the worker report to her a work place injury. She became aware of the worker reporting an injury after she had been at the chiropractor through the store manager. The day before the worker went to see the chiropractor, she said her back hurt but did not tell her how it happened nor did she indicate it was work related.
On December 17, 2009, the treating chiropractor advised a WCB adjudicator that the worker reported her injury as being work related on October 31 and that the mechanism of injury was consistent with the injury described. She stated that the worker's employer had been difficult to deal with in regards to taking people off work when they require time off. The chiropractor disputed that the worker was moving prior to October 31. The worker told her that she was moving that day and her father told her she was not allowed to do anything in terms of lifting.
In a decision dated December 30, 2009, the worker was advised that the WCB was unable to accept responsibility for her claim. It was felt that due to the delay in seeking medical attention and delay in reporting to the employer, the WCB could not confirm the worker sustained a work related injury or that the worker's low back difficulties were related to her workplace activities.
On January 7, 2010, the worker spoke with her adjudicator and identified several co-workers who could confirm the worker's reporting.
On February 2 and 4, 2010, the adjudicator contacted the co-workers identified by the worker.
In a decision dated February 18, 2010, the WCB advised the worker that no change would be made to its original decision. It was indicated that no co-workers had been able to confirm witnessing or being advised of a workplace injury on the date reported.
Following receipt of an appeal by the worker, the case was considered by Review Office on April 23, 2010 and it determined that the claim was acceptable. Review Office stated that it was unable to find any medical evidence that the worker had a pre-existing back condition prior to her shift on October 28, 2009. It found that the worker had an accident on October 28, 2009 as defined by the Act based on the following factors:
- one co-worker stated to the WCB adjudicator that "…she did not witness a workplace injury but the worker did say something several days after the date of injury about her hurting it at work."
- it did not find the worker's delay in seeking medical attention to be significant;
- the chiropractor's opinion that the mechanism of injury was consistent with the injury described by the worker;
- even considering that the worker's injury was reported to the employer on November 9, 2008, it was still within the time frame outlined under subsection 17(1) of the Act.
On June 16, 2010, the employer appealed the acceptance of the claim. The employer contended that the worker's injury was not compensable as it did not arise out of or in the course of employment. A file review was arranged.
Reasons
Applicable Legislation
The issue in this appeal is whether the worker's claim is acceptable. 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..."
The key issue to be determined by the panel deals with whether the worker was injured in the course of her employment.
Employer's Position
The employer has appealed the Review Office decision which determined that the worker's claim for a workplace injury was acceptable.
In its application for appeal, the employer stated that they believe the injury did not occur during employment and that the injury is not compensable as it did not arise out of and in the course of employment as required by the Act. In support of its submission, the employer referred to the letter from the employer's store manager dated November 11, 2009. In the letter the manager advises that:
· the worker brought in a doctor's note authorizing two weeks off work for a back injury but the worker did not indicate that the injury was related to work
· the worker was in the process of moving homes for two weeks prior to the injury and it was assumed that the injury was due to packing her belongings
· it was not until November 9, 2009 that the worker first told the store manager that the injury was work related
· the worker indicated that her back was sore before she started working her shift on October 28, 2009
· the worker worked her entire shift on October 28, 2009 and worked her shifts until the end of her October 30, 2009 shift
· The worker did not accept an offer of light duties made on November 9, 2009
Worker's Position
The worker did not make a submission to the Appeal Commission or participate in the review. Her position on the validity of her claim is well documented on the file and referenced in the background. In particular, the worker's letter to Review Office dated January 18, 2010 sets out her position.
Analysis
In order for the employer's appeal to be successful, the panel must be satisfied that the worker was not injured at work. The panel must make such a finding on the balance of probabilities. In this case, the panel found, on a balance of probabilities, that the worker was injured in the workplace and accordingly that the claim is acceptable.
The panel notes that the employer and worker presented two different versions of events surrounding the injury.
The employer took the position that the injury did not occur at work but was due to activities outside work. It also submitted that the worker did not initially identify the injury as a workplace injury but simply as a sore back. The employer noted there were no witnesses to a workplace injury and staff were only aware that the worker had a sore back.
The worker advised the WCB that the injury happened at work. She explained that her delay in filing a WCB claim was because she was not aware that she could file for WCB benefits. She states that she only became aware of her right to WCB benefits when she applied for employment insurance. She states that she then asked the manager at work for forms and that the manager told her she could not apply for workers compensation. The worker subsequently filed her claim by telephone. The panel accepts the worker's explanation for the minor delay in reporting the accident to the WCB.
As to the concern that the worker delayed in seeking medical treatment, the worker advised that she initially used over the counter medications to deal with the pain and sought medical attention within 3 days of the injury as the pain worsened. She also advised that she told the manager about the injury within minutes of the incident and provided medical information to the employer as soon as it was available.
The panel found the worker's explanation of the events surrounding the injury to be credible and notes her explanation was supported by evidence from other parties. The panel relies upon the evidence of the treating chiropractor that the worker indicated that she was injured at work and notes that the mechanism of injury was consistent with the injury described by the worker. The panel also notes that a co-worker recalled that several days after the accident the worker said she hurt her back at work.
The panel finds that the employer's assertion that the worker injured her back away from work is not supported by the evidence.
As the panel has found that the claim was acceptable, the employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of December, 2010