Decision #140/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that his claim for compensation was not acceptable for an alleged back injury occurring at work on January 17, 2010. A hearing was held on June 14, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 16, 2010, the worker filed a claim with the WCB for a back injury that occurred at work on January 17, 2010. The worker reported that at approximately 2:00 a.m. while at work, he bent over to move a small vat and felt a pain in his lower back. The pain quickly subsided and he stretched out his back and continued to work. At approximately 4:00 a.m. on January 17, 2010 his back started to feel tight. During his ride home from work at approximately 5:00 a.m. he felt pain in his low back.

Information submitted by the employer was that the worker reported back difficulties to the senior supervisor on February 5, 2010 with the date of incident being January 19, 2010. An Accident Investigation Report was also submitted.

In a memo to file dated March 23, 2010, the WCB adjudicator documented a phone conversation he had with the worker. The worker confirmed the accident description he gave the WCB on March 16, 2010. The worker provided the names of five individuals to whom he reported his back difficulties. The list consisted of two co-workers, the lead hand, a supervisor and a company nurse. The worker noted that he worked a full shift on January 18, 2010, and his back was extremely painful. At the end of his shift, he went to a local hospital for treatment. The worker disclosed to the adjudicator that on January 22, 2010, he signed a paper indicating that his back injury was not work-related but he wanted the paperwork redone as he did not like what it said. The worker advised that he was told by the employer to file a claim with the company's private health insurer and when he did so, he noted on the application that he was not sure where the injury occurred as he was scared to say what had happened.

The WCB adjudicator contacted the company nurse on March 26, 2010 who provided the following information:

  • The worker was very indecisive about whether or not his difficulties were work-related. The worker then insisted that his difficulties were not work-related.
  • A statement was made up for the worker which indicated that this was not a work-related issue. He signed the statement. The worker did not indicate that he wanted the statement changed.
  • On January 18, 2010, she was not made aware of this being a work-related problem.
  • On January 18, 2010, the worker advised his supervisor that he woke up or slept funny and his back was bothering him.

The adjudicator spoke with the worker's supervisor on March 30, 2010. He stated the following:

  • Nothing was reported to him on the shift of January 17, 2010.
  • On the shift of January 18, 1010, the worker came to work and was in pain. When asked what happened, the worker mentioned lifting bags and a five-gallon pail. The worker did not know if he had hurt himself at home or at work.
  • The worker signed a statement some time later indicating that this was not a work-related issue. The worker had concerns one or two days after signing the statement that maybe he should not have signed it but he never indicated that he wanted the statement changed.

On April 6, 2010, the worker was advised that based on a review of the available information, the WCB was unable to establish that an accident occurred on January 17, 2010. The worker was advised that the information he provided in regards to reporting to the employer had not been confirmed and that he signed a paper on January 22, 2010 with his supervisor stating that this was not a work-related issue.

On May 11, 2010, a worker advisor, acting on the worker's behalf, appealed the decision of April 6, 2010 to Review Office. The worker advisor made reference to the following information found in the employer's Accident Investigation Report to support that the worker suffered a specific injury at work on January 17/18, 2010:

On the evening of January 18, 2010 (the worker) "drove into work and as he drove the pain got severe, felt he had limited mobility. Upon arriving at work the pain was really bad and he went to the sausage area and he informed (supervisor) he was in pain. (The supervisor) asked what happened and (worker) said he thought it was from moving the empty V-mag the previous shift."

The worker advisor noted that the employer's Accident Investigation Report confirmed that the worker reported his accident to his supervisor at 7:30 pm on January 18, 2010.

The worker advisor indicated that the January 29, 2010 telephone conversation between the worker and the employer's health nurse confirmed the worker's initial report was of a workplace injury:

  • "He initially said that he remembers that he felt a twinge/sharp pain when he bent over during his shift at work but could not understand how this would have caused him the degree of pain that followed."
  • "The pain got worse while he was at home. He said he did mention the back pain to his supervisor on Jan 18."

The worker advisor referred to the following evidence to show why the worker hesitated to claim for a work-related injury:

  • "he said he was not [making a claim for benefits] because he was not planning on being off for 5 days."
  • "was very concerned that he would get into trouble for missing work."
  • "It was his choice because he did not want to break the 1,000,000 hours worked without a lost time injury."
  • "why did you sign a note saying the condition was not work-related? [the worker] - I thought I would be doing [employer] a favor by keeping the million hours going."

On June 28, 2010, the employer's representative submitted to Review Office that the medical information on file did not provide a consistent account of a work-related injury. The representative noted that the worker did not report an event to his co-worker, just that he was complaining of a sore back. It was the representative's opinion that the evidence on file failed to support that an accident occurred on January 19 (sic), 2010 and there was no support for cumulative reported stressors to the low back to account for the diagnosis of either a lower back strain or mechanical back pain.

In a second submission to Review Office dated July 9, 2010, the worker advisor expressed the view that the co-worker's statement referenced by the employer's representative did not rule out that a work-related accident occurred.

On July 14, 2010, Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office noted that the worker had several opportunities to report his injury to his employer but on more than one occasion, he advised the employer that his back difficulties were not work-related. There was no evidence confirming the worker's statements that he reported to his employer that his back pain was due to moving a v-mag. Review Office noted that a co-worker recalled an incident with a v-mag and that the worker stopped and rubbed his back. The co-worker could not remember the date of this incident. Review Office felt that the worker rubbing his back was insufficient evidence to support that he sustained an injury by accident arising out of and in the course of his employment. On October 7, 2010, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was held on June 14, 2011.

Following the hearing, the Appeal Commission wrote to the worker to advise that it was prepared to reconvene the hearing in order to allow him to enter into evidence an audiotape conversation between himself and his supervisor that he had referenced at the hearing, but only on the condition that the supervisor was present at the reconvened hearing to confirm the authenticity of the conversation and to be available to respond to questions from the panel. Subsequently, the worker advised the Appeal Commission that he was unable to meet the condition. As such, the audiotape was not received as evidence.

The appeal panel subsequently requested medical information from a hospital facility where the worker attended for treatment on January 19, 2010 as well as chart notes from the worker's treating physician. The requested medical information was later received and was forwarded to the interested parties for comment. On August 26, 2011, the panel met further to discuss the case and render its 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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that acceptance of the claim is based on whether a relationship can be established between the worker's low back difficulties and an accident as defined in the Act. In this case, there was evidence to support such a relationship. The worker described an event involving the v-mag which initiated his back symptoms. Co-workers observed him rubbing his low back and there was acknowledgment that he had a sore back, as evidenced by the fact that he was placed on light duties. A diagnosis of mechanical low back pain with sciatic irritation matched the mechanism of injury described by the worker. Three doctor reports on the WCB file stated that the onset of the worker's low back symptoms occurred at work. Based on these facts, it was submitted that there was enough evidence to establish a relationship between the worker's low back pain and the incident he described in the workplace.

Employer’s Position

An advocate and the employer's health, safety and security manager were present at the hearing. The employer's position was that the appeal should be denied as the evidence did not establish a reported accident occurring in the course of employment. It was submitted that while the worker now had a very acute recollection of the events, in January 2010 he did not. The employer pointed out numerous discrepancies between documented notes of conversations on file and the worker's current evidence and urged the panel to find that in view of all the inconsistencies, the claim was not acceptable.

Witnesses

A co-worker and the health and safety coordinator on the night shift were subpoenaed by the panel as witnesses. The co-worker's evidence was that he saw the worker grabbing his back while at work. He did not recall the worker telling him that he hurt his back while pulling a v-mag or any other conversation as to why the worker had back pain.

The coordinator's evidence was that she only became aware of the worker's back difficulties at the time of the second night shift. The worker's supervisor called her on her way in to work to say that the worker had told him that his back was sore but not to worry as it was not work-related. When the coordinator arrived at work, she went to the worker's department, where she spoke with the worker and his supervisor. They talked briefly, at which time the worker said he did not know what had happened and that he did not hurt his back while at work. Over the next few days, the worker was obviously in discomfort but he maintained that he did not know how he injured his back and that he could not connect it to anything that happened at work.

A few days later, the coordinator noted that the worker had a hospital identification bracelet on and that the bracelet said it was a WCB/work-related claim. She asked the worker about this and he claimed that he had not noticed this information and that it must have been a clerical error. The coordinator said that because she was not getting any medical documentation to back up the claim, she suggested to the supervisor that they have the worker sign a statement. She then prepared the statement and asked the worker if he would sign it. The worker read the statement and signed off. He did not disagree with it. When asked whether the worker said that it needed to be corrected, the co-ordinator denied this and said that the worker's only comment was that maybe he should not have signed it. The co-ordinator gave the worker the opportunity to retract the statement, but he did not opt to do so. The co-ordinator indicated that it was normal practice to have workers sign statements in cases where she felt there was uncertainty. She did not become aware that the worker was claiming that his back injury was work-related until approximately two weeks later. She denied hearing anything about an incident involving a v-mag on January 18 or 19, 2010.

Attempts were made to subpoena the worker's supervisor as a witness, but he had relocated outside of the province.

Analysis

In order for the worker’s appeal to be successful, the panel must find that during the course of the worker's employment, an accident occurred, and as a result of which he was injured. We are not able to make that finding.

After considering the evidence, the panel is not satisfied on a balance of probabilities that the worker injured his back during his January 17/18, 2010 shift. The problem is that there is inconsistency in the information provided by the worker at various points in time as a result of which we are unable to establish a reliable report of injury upon which to base the worker's entitlement to compensation benefits.

On the worker's first attendance for medical attention at an emergency department on January 19, 2010, he reported he had a sore left lower back for two days and that it occurred at work, but that there was no specific injury. On the triage record, it read: "states job related, has been lifting." Then on January 22, 2010, he signed a statement at work which stated that he was having trouble with his lower back and that it was not a work-related issue. Four days later on January 26, 2010, he was seen at another emergency department, where he reported it to be a work injury, but gave no mechanism of injury.

The next day, the worker was seen by his family physician, whose notes indicated that the worker was "assessed in emergency department for a strain of the lower back - 2 week history no obvious trauma - chest overexertion at work." The family physician submitted a doctor's first report related to a subsequent February 5, 2010 visit where the worker's description of the injury was reported as: "I was in the mixing room pulling a VAT when I felt a pain right across my lower back."

Also on February 5, 2010, an accident investigation report was prepared with the worker, a union rep, the supervisor and health and safety coordinator present. The worker claimed that he was pressured at the meeting. This was denied by the employer representative. The report described the incident as occurring when the worker pulled a v-mag, but then under the additional comments section the report states that an accident incident was not done initially because the worker was not able to give a specific accident to contribute to the incident when he reported it. The worker's evidence was that he took issue with the content of the investigation report and his handwriting on the back of the original report stated:

I felt I was doing (employer) a service by not demanding an A.I. At the time of injury and (sic) was gonna ride it out, and not miss time.

I feel that everything I said is true. I feel that I am under med's (sic) and have been a little confused at times (phone calls + A.I.)

I asked (Health and Safety Manager) on the phone "If I claim "at-work" I won't be covered", she said "right." Yet I'm still telling truth on M.D. documents.

At the hearing, the worker insisted that the true mechanism of injury was a very specific incident of which he had a clear recollection. He stated that he injured his back while he was trying to maneuver a v-mag at work. The worker explained that a v-mag is a metal container with four small wheels on the bottom. It is roughly 2x2 feet and stands about 2½ feet off the floor. It is used to carry large amounts of product from one room to another and weighs about 75 kgs when empty and over 150 kgs when full. The injury occurred when the worker was trying to switch an empty v-mag for a full one. The worker described the events as follows:

"So what I did was I turned it so that it could roll toward me and then I could put it in properly and as I rolled it and I pulled it towards me is when I felt a sharp pain in my back. I bent my legs and stood up and howled "Ow, ow, ow", took a step back, (co-worker) called me an old man.

"What happened?" (co-worker)

"Oh just a sharp pain in my back." I took a few seconds, I walked, walked it off."

The worker's evidence was that on his next shift, he told his lead hand that he had a lot of pain in his back from pushing v-mags the day before and that the lead hand told him the co-worker would assist him with his duties that day. Later on in the shift, the health and safety co-ordinator came to see the worker and at that point, the worker told her that the day before, he was moving a v-mag and felt a pull in his back and that ever since then he had pain in his back.

The evidence of the witnesses subpoenaed by the panel did not tend to confirm, and in some instances, contradicted the worker's evidence at the hearing.

The worker's explanation for the divergent accounts was that the company was moving towards one million accident free hours and he did not want to ruin the record. He also indicated that he was not familiar with how his benefits plan worked and the interaction between private insurance coverage and WCB. When he signed the January 22, 2010 document, the worker claimed that he questioned the statement that the injury was non-work-related, but that the coordinator told him that the document was thrown together quickly and that it could be rewritten in the next day or two. The worker then signed the document, but in answer to a question from the panel he acknowledged that he never followed up with the coordinator to have the statement changed. The worker also disclosed that he falsified his application for private insurance coverage by stating that he injured his back while coughing or sneezing. Coverage for those benefits had been denied. At this point, the worker said he just wanted to straighten things out and have benefits paid under the proper plan. He said that he was just trying to be a nice guy at the time and now it was coming back to bite him.

Overall, the panel feels that there is not enough evidence to satisfy us on a balance of probabilities that the worker injured his back while pulling a v-mag at work. The worker relates a very specific incident involving a v-mag, but the first mention of this mechanism of injury did not appear until February 5, 2010. Prior to that time, the reports referred to "non-specific injury." There is also the issue of the signed statement of January 22, 2010 which clearly states the injury was not work-related. The panel is left uncertain as to which is the true story. We therefore find that the claim cannot be accepted. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 19th day of October, 2011

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