Decision #90/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. Review Office decided that the evidence did not support the worker's contention that he was off work due to a work related injury. 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 March 16, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker's incident report dated April 23, 2010, indicated that he was driving a semi-trailer back to Winnipeg from Vancouver on January 14, 2010 and stopped to get coffee at a coffee shop. There was a piece of ice under the grass and he slipped. He did not fall but twisted and heard something in his neck. He did not feel anything at the time and went to get his coffee. When he went back to the truck (the worker is employed as a long distance driver), he drove to the corner and the light changed. He could not turn his neck to check the traffic. Then it seemed to get better. His left arm would go a little bit numb. It was a discomfort and it never went away. On February 22, he was delivering some totes and they had to be moved to the back of the trailer with a pallet jack. The totes weighed from 2800 to 3800 pounds. He felt something weird in his neck. After that his left arm became totally numb. His last working day was February 27, 2010.
The employer's accident report dated April 26, 2010, indicated that the worker reported one incident when he was leaving his house en route to work and said he slipped on ice and could not come to work. The area of injury was "neck", the date of accident was January 14, 2010, and the date reported to the employer was April 23, 2010. The employer also noted that the worker had been off work since March 2, 2010 for a back injury that was not work-related. The worker called occasionally during the last two months indicating his back problems had not improved and his doctor was awaiting an MRI appointment.
A WCB adjudicator spoke with the worker on April 27, 2010. With regard to the January 14, 2010 accident, the worker indicated that he was going into the coffee shop to get a cup of coffee and that he was off duty at the time. He slipped on ice on the grass and did not fall but he felt something strange in his neck. There was no pain. He could not turn his head left or right but still there was no pain. He called the dispatcher to advise him of the incident. By the time he got to Edmonton 2 to 3 hours later, his neck mobility was improving but he was having left arm numbness. It was not serious and he continued to work. He would experience occasional numbness if he moved the wrong way. The worker advised the adjudicator that he was not sure if the neck issues were work related and he elected to notify the board in case his issues become long term. He did not seek medical attention until February 22, 2010. He was having left arm numbness issues that arose occasionally. On February 22, 2010, the worker indicated that he was moving freight using a pallet jack and felt a worsening of his left arm numbness. This was the last trip he went on.
The adjudicator advised the worker that she was unable to approve his claim as he was not in the line of his work activities, the significant delay in seeking medical attention and because the worker was not completely sure if his issues were work related.
On April 27, 2010, the adjudicator spoke with the employer. The employer noted that he had spoken with two dispatchers and neither recalled the worker reporting the January 2010 incident. One dispatcher recalled the worker sustaining a slip and fall incident at home prior to a trip and was unable to return to work until the following load approximately one week later. The adjudicator spoke with the dispatcher. The dispatcher had no recollection that the worker hurt his neck. He remembered the worker complaining about arm pain while out on the road. This incident was in 2009. The worker indicated that he had hurt his arm moving freight around in the trailer but did not follow up and made no ongoing complaints. He had spoken with the worker since he'd been off work but the worker did not complain of neck or shoulder pain prior to leaving work in late February, 2010.
Medical information showed that the worker attended for medical treatment on February 19, 2010 with complaints of intermittent left arm numbness since a slip on an icy slope when he twisted to preserve his balance. The slip occurred while he was on a road trip and he was walking to a coffee-shop. When next seen on March 2, 2010, the worker contended that his symptoms were getting significantly worse in that the numbness was more frequent and intense in the last 10 days. The physician noted that the worker's intensity of symptoms occurred after having unloaded a truck using a pallet jack in February 2010. An x-ray was ordered of the cervical spine and it showed diffuse degenerative changes.
In a decision dated April 27, 2010, it was confirmed to the worker that his claim for compensation was not acceptable. The adjudicator indicated that she was unable to make a causal connection between the worker's problems and the workplace given that the worker delayed in reporting his injury to his employer and there were significant delays in seeking medical attention for the January 14 incident. The worker continued to perform his regular job duties and did not miss any time from work.
On June 23, 2010, a worker advisor submitted to Review Office that the worker's February 22, 2010 injury met the requirements of the Act under the WCB's pre-existing policy. She noted that the worker described two events that happened during the course of his employment on January 14, 2010 and February 22, 2010. The worker sought medical attention for the February 22, 2010 incident, well within the 30 day requirement of the Act. She noted the worker's March 4, 2010 diagnosis matched the worker's description of the mechanics of the February 22, 2010 injury, for an aggravation of a pre-existing condition.
In a decision dated August 5, 2010, Review Office determined that the claim was not acceptable. In making its decision, Review Office referred to file evidence to show that the worker did not report an incident to his employer occurring on January 14, 2010 while going to get coffee during a work trip to British Columbia. Testimony from the company dispatcher indicated that the worker informed them that he had slipped and fallen at home prior to leaving on a trip. The worker never indicated that he formally reported the alleged second incident on February 22, 2010 to his employer.
Review Office noted that the worker collected benefits from EI in connection with his absence from work commencing February 28, 2010 and that he made no attempt to initiate a WCB claim for benefits until April 23, 2010 when the worker had already been off work due to his injury for a period of 7 weeks.
On September 17, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel met on several occasions to discuss the case and additional information was requested from the worker and his family physician. On May 10, 2011, the information from the family physician was forwarded to the worker for comment. On June 8, 2011, the panel met further to discuss the case and rendered its final decision.
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 (WCB Policies).
This is an appeal by the worker for acceptance of his claim for injury. For the claim to be accepted, it must first be determined that the worker's injury resulted from an accident as defined in the Act. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.
As this claim involves a worker who is required to travel as part of his job, WCB Policy 44.10.50.50, Travelling on the Job, is relevant.
Worker's Position
The worker explained his position and answered questions posed by the panel. He advised that he is a long haul truck driver and has been working as a truck driver for 23 years. During the first two months of 2010, his usual route included deliveries to Alberta and British Columbia.
The worker advised that he first injured his neck in January 2010 on a return trip from Vancouver. He said he was out of the truck getting a coffee to go when he slipped on an icy hill. He explained that he had stopped at a coffee shop while driving from Vancouver to Edmonton. As he was getting coffee, he was not sure whether this claim was covered. The worker said that after the first incident, he could not turn his neck. He said this improved but he later developed numbness in his left arm.
The worker said that he had a second accident in February 2010 when he was moving barrels and totes in his trailer. He advised that he was using a pallet jack to move totes. He was working on a bit of an angle as the parking lot was not quite flat, so he had to pull the pallets to the back of the trailer and swing them around. About two days after the after the second accident, he noticed that his left arm became numb when he leaned over to change the radio station.
When asked why he did not file a WCB claim right at the start, he said that he knew his injury was work related right at the start. He said that he thought that it was going to go away but it did not so he felt he better file a WCB claim. He explained that "I had plans on filing a disability claim with our insurance company, but after seeing the doctor, I thought that this may be an ongoing problem and insurance was only for two years."
The worker said that he reported both incidents to the dispatcher at the employer's office, although the employer has denied being informed.
Regarding his symptoms, he said that it has been determined that neck movement causes the symptoms. He advised that he still has symptoms.
Employer's Position
The employer did not participate in the hearing.
Analysis
For the worker's appeal to be successful, we must find that the worker sustained an injury arising out of and in the course of his employment. We were able to make this finding. We find, on a balance of probabilities, that the worker sustained an injury to his neck when he slipped while picking up coffee at a restaurant in Hinton, Alberta. We find that the injury arose out of and in the course of his employment at this time. Specifically he was driving his truck from Vancouver to Edmonton when he stopped for coffee.
In reaching this decision, the panel applies WCB Policy 44.10.50.50, Travelling on the Job, which provides that "Where travelling is a requirement of the worker's employment, compensation coverage is extended to include travel during working assignments, as well as travelling to and from work assignments." The policy provides that any deviation from a reasonable and recognizable route for personal or non-work reasons will constitute removal from employment. The panel finds that the act of leaving the truck to buy a cup of coffee while on a long distance route was not a deviation from a reasonable route and did not remove the worker from his employment.
We note that a medical report dated April 29, 2010 confirms that he advised a physician on February 19, 2010 about the slip injury and resulting left arm numbness. The report notes that that the worker's chief complaint was intermittent left arm numbness since a slip on an icy slope in which he twisted to preserve his balance. The report notes "The slip occurred while he was on a road trip (he's a long haul trucker), while he was walking to a coffee shop."
We note that the worker reported the incident to WCB staff on April 27, 2010. The WCB staff person wrote that the "Worker was going into coffee shop to get a cup of coffee. Worker indicated he was off duty. He slipped on ice on the grass. He did not fall at the time. He felt something strange in his neck, but there was no pain. He couldn't turn his head left or right - but still no pain. He called his dispatcher to, [name] to advise of the incident." We note this report is consistent with the information he provided to his physicians. We also place no weight on the worker's self-description of his being "off duty." The facts of the case, coupled with WCB policy, make this act incidental to the worker's employment.
At the request of the panel the worker provided his trip log which confirms that he passed through Hinton, Alberta while driving between Vancouver and Edmonton on January 14, 2010, and its notation of a short break in that community.
The panel accepts the worker's evidence that he reported the accidents to the employer's dispatcher.
The appeal is allowed.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 5th day of July, 2011