Decision #177/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that he did not suffer personal injury by accident arising out of and in the course of his employment on January 22, 2011. A hearing was held on November 14, 2011 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In March 2011, the worker filed a claim with the WCB for an upper back injury that occurred at work on January 22, 2011 when he felt a tweak in his back while carrying a ladder through the snow. The worker noted that it felt like a burning achy feeling between his shoulder blades after which it gradually went to his shoulder and neck. The worker indicated that he did not report the injury to his employer until February 7, 2011 as he thought he only pulled a muscle and that it would eventually go away.

The employer's accident report gave the same description of accident as described by the worker. However, the date of accident was recorded as January 26, 2011 and the date reported to the employer was March 2, 2011.

A WCB adjudicator spoke with the worker on March 21, 2011 and the following information was obtained:

  • the worker was carrying a 28' ladder and walking through deep snow on January 22, 2011 when he felt a pain in his upper back between the shoulder blades. He finished work that day and went home and iced his back. He was working alone and did not report his injury.

  • the worker reported his injury to the employer on February 28, 2011. He attended medical treatment at a walk-in clinic on February 5, 2001. He saw his family doctor on February 17, 2011 and had a follow-up on April 6, 2011. He saw a chiropractor on February 18, 2011 and had been attending twice a week.

On March 31, 2011, the worker's supervisor advised the WCB that the worker reported he had an achy back approximately in February 2011, prior to reporting the accident. The worker first reported the accident on March 2, 2011. They completed an accident report because the worker's back was not getting better and he was not able to continue with his regular duties. The worker did not want to make reports because he did not want to put in a claim. The supervisor noted that the employer gave an incorrect date of accident on their employer's report of injury form and the correct accident date was January 22, 2011.

Medical information showed that the worker attended a walk-in clinic on January 29, 2011 for discomfort between the shoulder blades. A specific accident description was not recorded on the report.

On April 29, 2011, the WCB denied responsibility for the worker's claim on the basis that the worker delayed in reporting the injury to his employer and he delayed in seeking medical treatment. The WCB adjudicator noted that although the worker did make complaints of upper back difficulties to his manager, there was no workplace accident reported until March 2, 2011. As the WCB was unable to establish an incident occurred on January 22, 2011, no responsibility could be accepted for the claim. On May 13, 2011, the worker appealed the decision to Review Office.

In a decision dated May 31, 2011, Review Office indicated that it was unable to find that the worker suffered a personal injury by accident arising out of and in the course of his employment. In making its decision, Review Office considered evidence provided by the worker outlining the sequence of events that occurred from January 22, 2011 onwards as well as medical chart notes for January 29, 2011. Review Office placed significant weight on the following evidence in making its decision:

  • the worker notified his employer that he had an achy back on February 7, 2011 but there was no report of an injury or accident having occurred at work nor did the worker attribute his achy back to his employment.

  • the employer was notified of a work incident on March 2, 2011.

  • the January 29, 2011 Doctor's First Report made no indication of an injury by accident at work.

  • the chart notes from January 29, 2011 documented that the worker reported a 2 to 3 week history of discomfort between the scapula with no history of trauma.

  • the doctor's January 29, 2011 examination was absent of any findings of an acute injury.

On June 23, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing and explained his reasons for filing the appeal. He also answered questions posed by the panel.

The worker provided details of the accident. He was running a cable to a customer's residence. He had to carry a ladder through deep snow which resulted in "…a tweak between exactly between the shoulder blades." Later in the hearing he said the injury is just below the neck and above the shoulder blades.

The worker explained that he did not initially fill in a WCB green card because he thought that he just pulled a muscle and that it would get better with rest and light duties. He advised that his co-workers covered for him by doing the more physical jobs. This was done during the morning distribution of jobs.

The worker felt that the issue on the claim relates to his visit to a walk-in clinic about one week after the injury. He stated that the physician's records do not accurately reflect the visit. He noted that the physician did not note any swelling on the report but that his family physician whom he saw later noted swelling. He also questioned why the walk-in clinic physician would prescribe medication to reduce swelling if there was no swelling. The worker said that he told the doctor he was carrying a ladder in a customer's yard so assumed the doctor knew he was working.

The worker advised that his co-workers covered the heavier duties after the injury.

With respect to medical attention the worker stated that, in addition to seeing the walk-in clinic physician, he saw his family doctor, a chiropractor and was told to get physiotherapy and massage therapy.

Employer's Position

The employer was represented by a consultant and a supervisor. The consultant advised the employer is attending the hearing for the purpose of answering questions that the panel may have. The employer is not opposing the acceptance of the claim. Their position is that the claim should be adjudicated in accordance with the Act and evidence.

In answer to a question, the supervisor confirmed that the mechanism of injury described by the worker was probable. He acknowledged that the ladder was heavy and awkward to maneuver especially in snow. He also confirmed that the worker told him he had a sore back, although he did not initially say it was work-related. He also confirmed that the worker was provided with lighter duties as a result of the injury.

Analysis

The worker is appealing the WCB's decision to deny acceptance of his claim. For the worker's appeal to be successful the panel must find that the worker sustained an injury by accident which arose out and in the course of his employer. In other words, the panel must find that the worker's injury is due to his workplace duties. The panel was able to find, on a balance of probabilities, that the worker sustained an acute upper back injury at work on January 22, 2011.

In reaching our conclusion we place significant weight on the supervisor's confirmation regarding the mechanism of injury. In answer to a question, the supervisor advised that the ladder is unwieldy to carry especially with deep snow. We find the mechanism of injury is reasonable given the description of the working conditions provided by the worker and his supervisor. We also find that the injury is consistent with the mechanism of injury.

We note that the worker advised the supervisor that he had a sore back and that light duties were arranged to permit the worker to continue to work.

With respect to medical treatment, we note the worker sought medical attention within one week of the injury. We do not find this to be an unreasonable delay. We also note the worker's explanation for the delay in filing the WCB green card. We accept that the worker thought he would recover and so did not expect that he needed WCB benefits.

We attach little weight to the first medical report provided by the walk-in clinic physician. We agree with the worker that it is unlikely a physician would prescribe medication if the worker had no signs of injury. The worker's symptoms were also continuous and similar, up to the time he saw his family physician and chiropractor.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of December, 2011

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