Decision #119/10 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for difficulties with his right hip that he related to his employment activities on August 31, 2009. The worker's claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered an injury arising out of and in the course of his employment. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing to consider the matter was held on November 2, 2010.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported that he injured his right hip on August 31, 2009 from the following work related accident:
"Climbed into the truck with a load of asphalt…cranked my tarp closed on trailer. When I got to unload zone I couldn't sit. It was a painful 45 min. ride back".
The Employer Injury Report stated that the worker "advised us that this injury was not related to his employment here. It was a previous WCB claim he had years ago. He has applied for EI sick benefits."
Medical information showed that the worker was seen by a chiropractor on September 1, 2009 and was diagnosed with lumbar facet syndrome. The worker's description of incident or injury was "jarred himself". The worker next saw a physician on September 17, 2009 for subjective complaints of pain radiating from right hip to the leg and being unable to sit for long periods of time because of it. The physician identified chronic hip pain as a pre-existing condition.
When speaking with a WCB adjudicator on October 2, 2009, the worker indicated that his current difficulties stemmed from a previous WCB claim. The worker advised that he had been truck driving for 24 years. He did not do manual labour, other than cranking the tarp or a hoist. He had been employed with his current employer for two months. A couple of weeks prior to August 31, 2009, he started to feel some low back pain. On August 31 he was cranking a tarp and felt hip/low back pain. He was in the truck by himself at the time of accident. The worker indicated that he had had hip problems since suffering a work-related injury in 2000.
On October 5, 2009, the worker was advised that the WCB was unable to confirm that an accident occurred and therefore his claim was not being accepted. The worker was instructed to contact the case manager who was handling his previous 2000 claim if he felt that his current difficulties were related to that claim.
On October 7, 2009, the treating chiropractor's office advised the WCB adjudicator that the worker was treated September 1, 3 and 10, 2009. The chiropractor's charts had no record of being told that a work related accident occurred. The worker's treating physician's office was also contacted and they advised that the worker told them that his injury was from 10 years prior.
When speaking with the WCB adjudicator on October 7, 2009, the worker noted that as early as July he was having pain and discomfort. The back pain worsened in August 2009. The worker did not notify his employer about any hip/back pain until August 31, 2009 as he would rest on the weekends and felt better on Mondays. When asked why he reported no new injury to the employer but rather that he had recurring back and hip pain, the worker stated he did not want his current employer's premiums to go up and also thought that it was a recurrence of his previous injury in 2000.
The WCB adjudicator spoke with the employer's office manager on October 7, 2009. The employer noted that the worker came to work on August 31, 2009. Within an hour and a half, the worker notified them that he could not drive anymore. The employer outlined concerns that the worker could have been injured on the weekend and no accident was ever reported.
On October 8, 2009, the adjudicator spoke with the worker's supervisor "L". He stated that the worker tarped his truck 5 minutes into his shift and that it did not take much effort to crank the tarp. L happened to be nearby when the worker was tarping. He felt the worker could have told him of the injury if it had in fact occurred. The worker's truck was outfitted with a two way radio. When the worker arrived at the yard approximately one and a half hours into his shift, he got out of his truck and said his back was sore throughout the weekend and that he had to go home because of back pain. When asked what happened, the worker said his back pain was from an old injury.
The adjudicator also spoke with the employer's second owner "E" on October 8, 2009. E confirmed that the worker came back to the yard to report that he had to go home due to back pain and that he had back pain throughout the weekend.
In a decision dated October 8, 2009, the WCB advised the worker that given the inconsistent information regarding his reporting of an injury, the WCB was unable to confirm that an accident occurred at work. On January 20, 2010, the worker appealed the decision to Review Office.
On March 1, 2010, Review Office upheld the adjudicator's decision that the claim was not acceptable. Based on the discrepancies in what occurred on August 31, 2009, the inconsistent reporting by the worker and the lack of confirmation from the employer and healthcare providers, Review Office outlined the opinion that the evidence did not establish that an accident occurred on August 31, 2009. On March 5, 2010, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 self represented at the hearing and was accompanied by a friend/advocate. The worker indicated that in 2000, he suffered a work related injury which resulted in the same type of low back pain as he was experiencing after the August 31, 2009 incident. He did not know whether his current pain was caused by the old injury or a new one, but stated: "I know that I was at work and all I can say is that I was injured … it was all done by movements. And I took an injury at work and I feel that somewhere along the line I should just be compensated, regardless whether it goes to an old injury … I am just a common working man and I got injured on the job and I feel that somewhere along the line I should be compensated for that."
At the hearing, it was explained to the worker that the present appeal before the Appeal Commission was jurisdictionally limited to consideration of whether there was an acceptable claim for an accident occurring on August 31, 2009, but that it remained open to the worker to pursue further adjudication of his 2000 claim with the WCB.
Analysis:
The issue before the panel is claim acceptability. In order for the appeal to be successful, we must find that the worker suffered an injury during the course of his employment as a truck driver on August 31, 2009. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described what took place on August 31, 2009. He stated that he was driving a truck and delivering asphalt that day. He drove to the plant, came underneath the bins, and a load of asphalt was emptied into his trailer. He then pulled forward and went to get out of the truck to get his bills. When he stepped out of the truck, he mis-stepped slightly and felt: "just kind of like a little tingle in the hip or in the back, lower back." The worker said that he did not think much of it as there was no majorly throbbing pain yet. He then went over to close the tarps on his trailer, and when he started cranking, he started to have "warm spots" on his lower back and that was when the pain started. He did not realize how bad the pain would be until he climbed back on to the truck and got in the driver's seat. When he pushed onto the clutch to put the truck in gear, he found that he had some major pain in his right side. He proceeded to the jobsite, unloaded the asphalt, then drove the truck back to the yard. The worker described the pain as so excruciating that he was almost in tears. On the way, he phoned his parents and asked them to come pick him up at the yard.
The worker explained that he did not initially report an injury or file a WCB claim because he believed that his pain was caused by the same injury which he suffered in his 2000 workplace accident.
The WCB file indicates that the case manager spoke with two of the employer's supervisors, L and E. Although both L and E emphasize that the worker told them that his back was sore over the weekend and that the back pain was from an old injury, they also confirm that the worker showed up for his shift in the morning ready to work, and that he returned to the yard 1 ½ hours later complaining of disabling pain and being unable to continue driving.
When asked about pre-existing back pain, the worker's evidence was that the only back pain he had prior to his shift was some general residual stiffness he had from some shoveling duties he had performed a week or two prior. Some asphalt had seized solid in the back of the trailer and he had used a shovel to break it up. On the day of the accident, he had told E that he was still stiff from breaking up the asphalt. The worker claimed that when he climbed in the truck that morning, he was fine to drive and perform his duties. From his past experience with back pain, he would not have got into the truck if he was experiencing the same kind of pain as he had suffered in 2000. It was only after the cranking of the tarp that he started to feel the intense throbbing pain which was similar to the pain he felt when he was injured in 2000. Since it was the same kind of pain, he initially thought that the pain was caused by his old injury.
In the panel’s opinion, the worker’s claim for compensation should be accepted. Although the worker was a poor historian and there are inconsistencies in the reports of the accident which were provided by the worker, the panel is satisfied on a balance of probabilities that the worker sustained an injury during his shift which disabled him from working. The information from the supervisors confirms that the worker showed up for his shift willing and able to perform his duties, and that approximately one and a half hours later, he returned to the yard in severe pain and unable to continue to work. There was a marked change in his presentation. He sought medical attention the next day and the chiropractor recorded findings of reduced lumbar range of motion on extension and lateral bending to the right, L4 facet tenderness/dysfunction, and lumbar spasm. A hip/low back strain injury could have been caused either by a misstep while exiting the truck or cranking of the tarp, and both of these activities arose out of and in the course of the worker's employment. The panel accepts the worker's evidence that the back pain which he mentioned prior to his shift was a generalized aching pain from over-exertion and it differed from the disabling pain which the worker later developed in his lower back and right hip.
As a result, the panel finds on a balance of probabilities that an accident occurred on August 31, 2009 and accordingly, the worker has an acceptable claim. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 9th day of December, 2010