Decision #70/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed the decision made by primary adjudication that his low back symptoms did not arise out of and in the course of his employment on November 21, 2010.
A hearing was held on May 9, 2012 to consider the matter.
Issue
Whether or not the worker's back symptoms are related to his November 21, 2010 compensable injury.Decision
That the worker's back symptoms are not related to his November 21, 2010 compensable injury.Decision: Unanimous
Background
In February 2011, the worker filed a claim with the WCB for injuries to his right foot, left side back and left hip based on a work-related accident that occurred on November 21, 2010. The worker described the accident as follows:
I was wiping down a car from the passenger side mirror working my way towards the front bumper. As I was in the middle of the windshield my team leader …was inside the car doing a drive off. He put the car into reverse and drove onto my right foot and parked on my right foot. After he put it in park he leaned over to the passenger seat and started laughing at me. At that point, I tried to lift up the car a bit to get my right foot out. I was screaming in pain. There was a camera pointing right at me. This would have been on camera. They didn't send me for a break until 3- 4 hours later. I told them I had to go home because I was in pain. They wouldn't send me home right away…Team Leader told me to cry a river. My coworker …told [my Team Leader] I was in pain. I walked into the office and [my Team Leader] threatened me if I went home. I later spoke to [name], another team leader who filled out the incident report on that day. The managers were not in that day. This incident caused me to injure my right foot, left hip and left side of my back. I have been going to physiotherapy. My physiotherapist said nothing is getting better.
The worker also stated:
I couldn't get around because of the injury. I was seen by a doctor at [a] walk in clinic about one week later. An x-ray was taken at that time. I can't remember the name of the doctor. He wasn't very helpful at all. I was waiting for my family doctor to come back from vacation. I later saw [doctor's name] in December. He referred me to physiotherapy and said I could continue to see a chiropractor, if I chose to.
The Employer Injury Report signed by the office manager on February 14, 2011 described the November 21, 2010 accident as: "Vehicle ran over employee's foot."
A doctor's first report from a walk-in clinic showed that the worker was seen for treatment on December 1, 2010. The diagnosis was a sprain to the right foot. It was reported that the worker was not disabled.
On February 22, 2011, the worker was notified by the WCB that no wage loss benefits were payable for his right foot injury of November 21, 2010 as the healthcare information indicated that he was able to return to work after that date.
On March 7, 2011, the WCB received correspondence from the worker dated February 25, 2011 in relation to his back injury. It included a physiotherapy referral from his family physician dated December 28, 2010 for the diagnosis of "lumbar strain" and a medical certificate from a chiropractor dated December 24, 2010.
A chiropractor's first report showed that the worker was seen for treatment on December 20, 2010. The chiropractor reported that a car drove over the worker's foot and the worker felt middle to low back pain after lifting the car. The diagnosis was a lumbar strain.
A physiotherapy initial assessment report showed that the worker was seen on January 12, 2011. The worker's description of incident or injury was recorded as: "Pt's foot was pinned by a vehicle, he efforted (sic) to lift car off his foot thereby straining lumbo-thoracic regions." The diagnosis rendered was an acute lumbar-thoracic strain/sprain. The physiotherapist noted that the worker was capable of alternate or modified work.
On March 9, 2011, a WCB case manager spoke with the worker's manager. The manager reported that he was working on the day that the injury occurred. He said that five hours after it happened, it got really busy and the worker came to him to report the accident that the car had ran over his foot. The worker said his foot was sore and he filled out a notice of injury form.
The worker did not mention that his back was sore at the time. He remembered that the worker complained of back pain and would often call in sick stating that he had to go to a chiropractor or physiotherapy for his back but did not attribute his back to the injury with the car. The worker never complained after November 21 that his foot hurt. The manager could not recall exactly when the worker complained about his back but thought that it might have been before the injury to his foot. He noted that the worker was unreliable as a staff member with frequent no-shows for his shifts. The worker eventually quit working for them after he did not show for several shifts.
A doctor's progress report from the family physician dated December 28, 2010 stated: "Car backed over his right foot. Tried to lift car off foot, developed back pain." A diagnosis of lumbar sprain was recorded.
On March 18, 2011, the WCB wrote the worker to advise that it was not accepting responsibility for his low back symptoms. The case manager noted that there was no evidence of a workplace injury which led to his back pain that was first reported to his doctor on December 20, 2011. The case manager stated that a notice of injury form dated November 27, 2011 was obtained and there was no mention on the report of back pain or injury relating to the November 21, 2010 accident.
On April 13, 2011 and May 17, 2011, the WCB case manager documented her discussions with the worker. The worker provided the name of a co-worker who saw him try to lift the car off his foot. He also provided the names of 3 other co-workers who knew of his foot and back injuries. The WCB case manager then contacted the witnesses to verify their knowledge of the accident.
On May 17, 2011, the worker was advised that a relationship between the development of his low back symptoms and an accident "arising out of and in the course" of his employment had not been established. The case manager noted that the co-workers confirmed the incident described by the worker involving a car running over his right foot but a work related accident history to explain the onset of his low back symptoms was not confirmed or witnessed.
Chart notes dated March 21, 2011 from the walk-in clinic physician who saw the worker on December 1, 2010 stated:
WCB case. Wants me to change in form that he sustained back injury also in December 2010. This patient has been seeing five different doctors for same wbc (sic) injury. I told that I am not going to change anything and is (sic) not going to see him again. He should stick to his doctor.
On August 17, 2011, the worker appealed the May 17, 2011 decision to Review Office. On August 9, 2011, Review Office returned the file back to primary adjudication to conduct a further investigation into the claim based on the points raised by the worker in his submission.
On November 7, 2011, the worker was notified that no change would be made to the decision outlined on May 17, 2011. The case manager indicated that she contacted three witnesses identified by the worker and they were unable to confirm the worker's testimony that the car "parked" on his foot, that he lost consciousness or collapsed after the accident or that he attempted to lift the vehicle off his foot. On November 28, 2011, the worker appealed the decision to Review Office.
On January 11, 2012, Review Office found that the worker's low back symptoms were not compensable as the file evidence did not establish that his symptoms arose out of and in the course of his employment on November 21, 2010. Review Office indicated that the information provided by the witnesses did not support the worker's contention that he incurred a low back injury on November 21, 2010 by attempting to lift a vehicle off his foot. It stated that there was no mention of a back injury on the accident report which was apparently completed on the day of the accident and there was no medical support for the worker's contention that the walk-in clinic physician forgot to include the worker's back complaints in his assessment report of December 1, 2010. On February 23, 2012, an advocate acting on behalf of the worker, appealed Review Office's decision to the Appeal Commission and a 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.
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. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
The WCB has accepted the worker's claim for a foot injury arising from his November 2010 workplace accident. The key issue to be determined by the panel deals with whether the worker’s current back condition was caused by his compensable injury.
Worker's Position
The worker was represented by an advocate who made a submission on his behalf. The worker's father attended and provided evidence.
The worker's advocate submitted that subsection 4(5) of the Act is applicable to this appeal. He told the panel that the back injury occurred in the course of the worker's employment and that the presumption in this section has not been rebutted.
The worker's advocate also submitted that the legal principle of "res ipsa loquitur" was applicable to this appeal. He said that the evidence established that the worker developed back problems after the accident and given there is no other possible cause or explanation for the back problems, the problems must have been caused by the accident.
The worker's advocate submitted that the "thin skull rule" was applicable to this appeal. He noted that the worker is of slight build and that any conditions which result from the worker's physical stature are compensable.
The worker's advocate reviewed the evidence and provided a summary of the claim. He submitted that the evidence supporting the worker's claim is uncontroverted. He reviewed the medical information and noted that the worker has not yet recovered from the injury. He asked the panel to consider the opinion of the treating physiotherapist.
The worker answered questions posed by the panel. He described the accident in detail. He told the panel that the vehicle was parked on his foot. He denied that the vehicle rolled over and off his foot as described by other witnesses. The worker also said that he attempted to lift the vehicle off his foot and that he passed out when doing this. He said that since the injury he has suffered back problems.
In answer to questions from the panel, the worker advised that between October 11, 2010 and February 13, 2011 he was participating in an autobody repair course. The time in this course was usually split 60-40 between the classroom and shop. He told the panel that during a one week period, December 10, 2010 to December 17, 2010, he was involved in a work experience and practicum. This involved being placed at a local shop. He described his duties as "…I was sanding down body -- like, different kinds of bumpers, whether it be metal or plastic. I’d have to use a different application: sandpaper to painting -- so, bodywork all the way to painting, and then they gave me a little bit of extra work, which was frame-straightening, which I didn’t even learn in my course."
The worker said that he got full marks for his work at the work experience.
The worker was asked whether those jobs were more or less difficult than his job. He replied, "Oh, they’re way more difficult."
The worker advised that after completing the autobody course, he completed an automotive course. This was a five day per week program. When asked how he did in this course he said "I did pretty well." He advised that he did not perform all the physical aspects of the course.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel was whether the worker's back symptoms are related to his November 21, 2010 accepted workplace accident. For the worker's appeal to be successful, the panel must find that the worker injured his back in the workplace accident. The panel was not able to make this finding.
In deciding this case, the panel places significant weight on the evidence provided closest to the accident date. This evidence includes a report of a walk-in clinic physician who saw the worker on December 1, 2010. The diagnosis, as noted by the physician, was a sprain to the right foot. The panel notes that no mention was made of a back injury or of an attempt to lift a vehicle. The panel also notes the "Employee Injury/Major Incident Report" completed after the accident and signed by the worker indicates "vehicle ran over foot."
The panel also notes that information was gathered from all the persons identified by the worker as having been in the vicinity of the accident site. This included the driver of the vehicle, a co-worker who was inside the vehicle, a co-worker who was performing similar duties to the worker on the opposite side of the vehicle, and a supervisor who attended to the worker after the incident. The overwhelming and consistent evidence of the witnesses was that the vehicle drove over the worker's foot and that he complained of pain in the foot after the incident. None of the witnesses confirmed that the vehicle stopped on the worker's foot. None of the witnesses confirmed that the worker attempted to lift the vehicle and none confirmed that the worker passed out trying to lift the vehicle.
At the hearing, the worker's representative cautioned the panel about relying on the evidence of the co-workers given their employment relationship. The panel notes however that one of the witnesses, was questioned in May 2011 and was no longer an employee of the firm. This witness indicated that she spoke with the worker after the incident and that "he seemed reasonably ok after." She said that the worker did not mention that his back was sore. The panel finds this evidence to be compelling and places significant weight upon it.
The panel also notes that the worker continued to work for approximately 5 hours after the accident and worked the day following the accident. This activity is not consistent with the claimed back injury.
The panel notes the worker's evidence that after the accident he completed a course in autobody repair which was physically intense. This course overlapped the time period of the claimed back injury on November 21, 2010. The panel finds that such participation as described by the worker is inconsistent with his evidence that he injured his back. In particular, the worker was able to complete successfully the work placement in mid-December 2010 for which he got full marks.
The panel also notes that there was no mention by the worker of passing out until May 2011. This is a significant event which was not corroborated by his treating practitioners or many of the available witnesses at the time of the November 21, 2010 incident, nor by the worker in his many conversations with the WCB between February and May 2011.
Given the above evidence the panel finds, on a balance of probabilities, that:
- the vehicle ran over the worker's foot but did not park on his foot.
- the worker did not injure his back on November 21, 2010.
The worker's appeal is dismissed.
The worker's representative raised several arguments in support of the worker's claim. The panel considered these arguments but found that they did not apply to the worker's issue before the panel:
- Subsection 4(5) which provides a statutory presumption does not apply to the worker's position that he injured his back. The statutory presumption applies in cases where acceptance of a claim is in issue. In this case acceptance is not in issue, as the WCB has found that the worker was injured in an accident that arose out of and in the course of his employment. The extent of injury is not a matter dealt with by the presumption.
- Res ipsa loquitur does not apply to this case. The worker's representative said that the evidence established that the worker developed back problems after the accident and given there is no other possible cause or explanation for the back problems, the problems must have been caused by the accident. The panel is not required to find an alternate non-work-related cause for an injury. Rather, the panel's responsibility is to enquire and establish a work-related cause on a balance of probabilities. In this case, the Appeal Commission finds that the evidence does not establish that the worker injured his back in the accident on a balance of probabilities.
- The tort concept of the thin skull rule is not applicable to this case as the Appeal Commission finds that the worker did not attempt to lift the car from his foot and did not suffer a back injury. That the worker has a slight build is not relevant to the issue before the panel.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 29th day of May, 2012