Decision #131/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his claim for compensation was not acceptable as the evidence did not establish that he suffered personal injury by accident arising out of and in the course of his employment. A hearing was held on October 30, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury with the accident date of October 19, 2011. The worker described his injury as follows:

I can't work in my field anymore as a welder. I can't stand in prolonged places for a long time…My doctor is aware of my back problems. On October 19, 2011 my doctor said it's also due to heavy lifting and prolonged standing over time while working…sometime in the summer the boss wanted me to move heavy bunches of angles and lift them with the crane. He asked me why I wanted to use a crane. The angles were all together. I tried to move them and I couldn't. I felt something hot in my back. I didn't tell him anything because I was afraid to complain. He said to just do it. I can't remember the dates.

Medical information on file consists of an MRI report of the worker's lumbosacral spine and pelvis dated December 12, 2011 and a report by a neurologist dated February 2, 2012. The neurologist reported that the worker was seen on September 16, 2011 for complaints of pain in the left groin/inguinal region, extending into the left side of the testis, and pain in the left lumbar/sacroiliac region. He noted that the worker had a previous history of low back pain for the past 9 years and had cartilage problems in his knees.

On December 23, 2011, the worker advised a WCB claims information representative that his injury was due to heavy lifting and prolonged standing over time. He said his doctor confirmed this on October 19, 2011. This was the injury date he was using for now.

On December 23, 2011, the employer called the WCB to advise that he received the Employer's Incident Report for the worker and that he had concerns with the claim. He said the worker started to work for him on July 12, 2011 and he was let go on August 11, 2011. He knew that the worker had previous back problems.

A WCB adjudicator spoke with the worker on March 6, 2012 and the following information was obtained:

  • the worker stated he has held very physical jobs most of his life.
  • the worker mentioned that in late July 2011 (approximately 2 weeks before his employment terminated) he was working with a bundle of angle iron that weighed about 500 kgs. and he hurt his back. That's when he requested the use of a crane. His employer eventually assisted him with moving the bundle of iron by hand.
  • the worker said he did not fill out a Notice of Injury but he did report his back injury to his employer.

On March 7, 2012, the adjudicator spoke with the employer and he confirmed that part of the worker's job duties were to work with bundles of angle iron. The weight of a bundle of angle iron was 1000 lbs. plus. The company owned three cranes which could be used by the workers. The employer said he would never expect a worker to manually move such a weight. He noted that the worker did not report an injury either verbally or in writing.

On April 19, 2012, the worker was advised that his claim for compensation had been denied by the WCB. The adjudicator advised the worker: "As a result of my investigation, taking into account, no injury or incident was reported to your employer and the significant delay in seeking medical treatment for your lower back difficulties, there is no evidence allowing me to consider this a workplace "accident"… ". On May 22, 2012, the worker appealed the decision to Review Office.

On July 13, 2012, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that it was unable to find that the worker suffered an "accident" at work because no injury could be confirmed, no incident was reported and there was no evidence to support that a "chance event…arising out of and in the course of employment" ever occurred injuring the worker. On August 15, 2012, 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. Subsection 4(1) of 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. (emphasis added)

The worker’s position:

The worker was self represented at the hearing and was provided with the services of an interpreter. It was submitted that when he was working for the employer in late July 2011, he was told by his employer to move a heavy bundle of steel angles by hand. The worker questioned why he would not just use a crane to do the work but the employer insisted that he could move the angles manually so the worker tried to do so. The worker immediately felt a hot sensation in his back, but no real pain. It was only the next day that he felt pain which got progressively worse over the next few weeks. After a while, the worker finally went to see his doctor who told him that the disk in his back was ready to go out and that he should not perform physical work anymore. The disk was on the verge of bulging out and anything, even just coughing, could cause it to come out which would then require very serious surgery to be treated.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury arising out of and during the course of his employment in July 2011. We are not able to make that finding.

The worker's claim is for low back pain which he describes as a bulging disc which could "blow" or herniate at any time. After reviewing all of the evidence, the panel is not satisfied on a balance of probabilities that the worker suffered an injury to his low back by an accident at work occurring in late July 2011. None of the usual indicators commonly relied upon as evidence of a work related injury are present. In particular, the panel notes the following:

  • There has not been clear and consistent reporting of a specific mechanism of injury. Initially, the worker identified heavy lifting and prolonged standing over time while working as a welder. Later, he added a specific incident in late July when he was told by his employer to move heavy bunches of angles. At the hearing, the worker attributed his lower back problems to the specific lifting incident in July 2011.
  • The worker never filled out a Report of Injury form (also known as a "Green Card"). The worker acknowledged at the hearing that he was aware from previous WCB claims that a Green Card should be filled out, but stated that he did not fill one out this time.
  • A WCB claim was not initiated until December 23, 2011. This coincided with the end of other disability benefits the worker was receiving. The panel questions why the worker would not have filed a claim sooner, particularly given that he was knowledgeable of the WCB claim process.
  • Report of an accident (whether acute or non-specific) was never given to the employer.
  • The worker advised that a co-worker witnessed the specific event. The WCB was unable to make contact with the co-worker. In any event, the worker's evidence at the hearing was that he has had conversations with the co-worker and the co-worker has refused to confirm that he witnessed anything. Therefore, there are no witnesses to the incident.
  • The worker continued to work for the employer until August 11, 2011, when his employment ended. He was therefore able to continue to perform his regular duties for approximately two weeks after the time of the accident.
  • There was a considerable delay between the time of the accident and seeking medical attention. The worker's evidence at the hearing was that he did not see his family doctor until October, 2011. He could not remember the date.
  • The panel did not have a report from the family doctor, but we did have a report from a treating neurologist and a copy of an MRI dated December 12, 2011. The neurologist did not identify any significant neurological findings related to the worker's lumbosacral/iliac and left groin pain.
  • The MRI of the lumbosacral spine showed mild facet arthropathy at L4-L5, but no significant disc lesion. All other levels appeared normal. The MRI did not indicate the presence of any disc bulging or herniation.

Unfortunately, there is simply not enough evidence to satisfy the panel that the worker suffered an injury to his low back while working for the employer in July 2011. Given the inconsistent mechanism of injury, lack of reporting, delay in seeking medical treatment and absence of evidence of injury to the low back, we are not convinced that the worker suffered an injury by accident at work. We therefore conclude that the worker does not have an acceptable claim. The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 30th day of November, 2012

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