Decision #115/11 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed that the worker suffered an injury at work on May 1, 2005. A file review was held on June 21, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On May 13, 2005, the worker contacted the WCB's call centre to report a low left back injury that occurred at work while emptying a bucket of water during the night shift on May 1, 2005. The worker noted that he was in a tight confined space and was pouring to the left. He picked up the bucket and poured its contents into a sink. The worker reported that he completed his shift but when he awoke the next day he felt tightness, pain and spasm in his low back. The worker indicated that he did not seek medical attention until May 3, 2005 as he did not think the injury would amount to much. The worker reported the injury to his supervisor on May 4, 2005.
The employer's report of injury stated: "Employee claims he was picking up the mop pail to empty it and twisted his back as he was pouring into the slop sink." The date of accident was April 30, 2005 and was reported at 2:00 a.m. on May 4, 2005.
On May 18, 2005, the worker advised a WCB adjudicator that he injured his back during the shift of April 30, 2005 which finished on May 1, 2005. He did not report anything to his employer at the time as he initially thought that the injury would resolve on its own. The worker indicated that he was not involved in any outside accidents or incidents and did not engage in any activities that would have aggravated or irritated his condition in any way. The worker stated that he managed to work his entire shift on May 1, 2005. He was having ongoing discomfort during this shift, but was unable to report anything as he was working alone. His symptoms again increased and he attended for medical treatment on May 3, 2005. He officially reported his injury to the employer on May 4, 2005.
A doctor's first report dated May 16, 2005 was received at the WCB. The diagnosis outlined was low back muscle spasm and pain. There was no worker's description of injury or date of examination recorded on the form. On May 19, 2005, a WCB adjudicator contacted the doctor's office and confirmed that the worker first attended for treatment on May 3, 2005. The adjudicator asked the doctor for clarification as to the worker's description of injury. On May 19, 2005, the treating physician faxed a report to the WCB which stated that the worker injured his back at work from doing heavy lifting and pulling.
On May 31, 2005, the worker was advised that his claim for compensation was denied as the WCB was unable to establish a relationship between the development of his symptoms and an accident occurring at work. This was based on his delay in reporting the accident, the delay in seeking medical attention and inconsistent history of injury provided to the initial physician.
On June 16, 2005, the treating physician wrote to the WCB and stated:
I saw the above patient on May 3/05 with complaints of lower back pain after an incident at work three days before. At the time he was in obvious discomfort with tenderness and painful spasms of his lower back. Obviously my information as to the incident was based on what the patient told me. It is my opinion based on previous experience that it is possible to develop muscular spasm and pain known to present days after an incident such as this. I further have no reason not to believe that this was caused by the mentioned incident at work.
On June 16, 2005, the worker was advised by an adjudicator that after reviewing the June 16, 2005 report and all other information on file, there was no new information to warrant a change to the initial WCB decision.
On October 14, 2010, over five years later, the case manager reviewed the worker's 2005 compensation file in preparation for a call-in examination on another claim. The case manager indicated that she was now accepting the 2005 claim as there was enough information to support that an injury had occurred out of and in the course of the worker's employment.
On November 4, 2010 the case manager advised the employer that the worker's 2005 claim was compensable. The case manager indicated that the worker reported a consistent accident history to his employer, he reported the injury to the employer, sought medical treatment in a timely manner, and the diagnosis provided was consistent with the mechanism of injury. With regard to the accident history of lifting a heavy weight and pulling, the case manager was of the opinion that this was consistent with picking up and pulling the slop pail over to pour it.
On December 3, 2010, the employer's representative appealed the above decision to Review Office. The representative submitted that the case manager erred in rescinding the May 13, 2005 decision.
On January 20, 2011, Review Office upheld the case manager's decision to accept the claim. Review Office felt that the weight of evidence supported the view that on May 1, 2005, the worker suffered an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act").
Review Office stated in its decision that it interpreted the worker's May 13, 2005 report of accident as him saying there was a worsening of his symptoms over time. Review Office felt that this accounted for the worker's delay in reporting the accident to his employer, seeking medical attention and the wording of the doctor's June 16, 2005 report. Regarding the varying history of accident, Review Office noted there was consistency as to when and where the accident occurred. It placed more weight on those findings than whether the doctor's accident description was completely reconcilable with the worker's. Review Office stated that it did not draw any inferences from the fact that the doctor did not report the accident to the WCB or bill the WCB for treatment. On January 31, 2011, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The issue being appealed is whether or not the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (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.
The issue for the panel in this case concerns whether or not an accident giving rise to benefits occurred on May 1, 2005.
The employer’s position:
The employer primarily relied on its written submission dated December 3, 2010. The employer's position was that the WCB erred in rescinding the initial adjudicative decision of May 31, 2005. It was noted that the worker did not report the May 1, 2005 incident to the employer until May 4, 2005. The worker could have reported the accident to his employer on May 1, 2 or 3, 2005, but failed to do so. He sought initial medical treatment on May 3, 2005, but no report was received by the WCB with respect to that assessment, nor was WCB billed for same. The worker was seen by the same physician for follow up on May 9, 2005, but again, no report or billing was received by the WCB. It was submitted that the lack of report or billing to the WCB implies that the physician was unaware of any work relationship. On May 16, 2005, following a request from the WCB, a report was received from the physician which provided a history of the worker injuring his back while "doing heavy lifting and pulling." Subsequent to the May 31, 2005 decision denying the worker's claim, the physician provided the WCB with a letter which, it was submitted, tended to infer that the onset of symptoms occurred three days after the alleged incident.
It was submitted that although the three day delay in reporting was not, in and of itself, a bar to acceptance of the claim, when considered in conjunction with the delay in seeking medical treatment and the inconsistent accident history, the cumulative effect justified the original decision rendered on May 31, 2005. Overall, the totality of the evidence tended to infer that the onset of symptoms occurred a number of days beyond the alleged incident and that the physician was unaware of the work relatedness until the worker's third visit on May 16, 2005. In the circumstances, the evidence did not satisfy the test for acceptance of a claim.
The worker’s position:
The worker submitted a letter which provided some details regarding his claim from 2005. He advised that upon injuring himself, his regular doctor at that time was on holidays and he was also searching for a new family doctor closer to home. After seeing the physician several times and being prescribed the same medication after each visit, the pain and symptoms were still there. The worker felt he had no choice but to return to work, as he did not want to use his sick time and holidays with no reimbursement.
Analysis:
The issue before the panel is whether or not the claim for benefits is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker did not suffer an accident arising out of and in the course of his employment on May 1, 2005. On a balance of probabilities, we are not able to make that finding.
In the panel’s opinion, there was enough consistency in the worker’s position that he injured himself on May 1, 2005 to satisfy us on a balance of probabilities that he has an acceptable claim. In coming to our conclusion, the panel noted the following:
- The worker was consistent in his reporting of when, where and how the injury occurred;
- A Notice of Injury card was completed on May 4, 2005 which was relatively soon after the injury date. The panel accepts that it was reasonable for the worker to delay in taking any action for two days as he did not think that the injury was going to amount to anything serious;
- The mechanism of injury of lifting and pouring out a bucket is consistent with the diagnosed injury of lower back muscle spasm and pain;
- The physician's chart notes of May 3, 2005 indicate that the worker was complaining of back pain for 3 days in his lower/mid back. This is consistent with the injury date reported by the worker;
- Although the physician did not bill or report the injury to the WCB until May 16, 2005, the panel is not, in the circumstances of this case, prepared to draw any inferences from this fact. When the physician did provide his first report to the WCB, he corroborated the work injury history, albeit in non-specific terms.
Overall, despite some inconsistencies, the panel finds that the evidence is sufficient to satisfy us on a balance of probabilities that the worker suffered an injury by lifting during the course of his employment on May 1, 2005. His claim is acceptable and the employer’s appeal is therefore dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 17th day of August, 2011