The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he did not suffer an accident in the workplace on January 19, 2012. A hearing was held on April 25, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On February 13, 2012, the worker filed a claim with the WCB for a low back injury that occurred on January 19, 2012. The worker described the accident as follows:

I was closing the overhead doors where they wash the trucks and it was dark and there was a thin sheet of ice and I lost my footing and tried to correct myself and twisted my back.

The worker indicated that he reported the accident to his employer on January 20, 2012 as the accident happened late at night and there was no one of authority to whom he could report the accident. The worker stated that he attended a local hospital for treatment and had x-rays taken. He was advised to take 7 days off work and to see his family physician. He said he tried to return to work on February 6 but he was let go by his employer.

An emergency hospital report showed that the worker attended for medical treatment on January 27, 2012 complaining of low back pain from a slip incident that occurred eight days ago at work when he caught himself to prevent from falling. The diagnosis was muscular back pain. A medical certificate from the emergency room physician dated January 27, 2012 indicated that the worker should refrain from working for at least one week.

A Doctor First Report dated March 1, 2012 indicated that the worker injured his left low back while pulling down a chain lifting a bay door. The diagnosis was left-sided mechanical low back pain.

On February 14, 2012 the worker advised the WCB that he slipped on ice and twisted his back when he tried to correct himself from falling. The worker indicated that he self-treated himself with bed rest before attending for medical treatment on January 27, 2012.

On February 14, 2012, an employer representative indicated that the worker had been let go for reasons unrelated to his claim. They were not aware that the worker suffered a workplace injury. The representative submitted a statement from the worker's supervisor to suggest that the worker had a slip and fall incident prior to January 19, 2012 while getting on a bus. The worker complained of soreness in his ribs and low back from the fall.

On February 15, 2012, the WCB adjudicator contacted the worker to obtain additional information. The worker confirmed that he had an accident as described on his injury claim form to the WCB. The worker indicated that he told a supervisor about the accident as the supervisor had been closing up inside and he was on the outside. He said his employer terminated him due to his injury. The worker confirmed the bus incident but said he injured his side and not his back. The worker indicated that he delayed in seeking medical attention because he was bed-ridden.

In a decision dated March 1, 2012, the worker was advised that his claim for compensation was denied on the basis that he delayed in seeking medical attention and his employer could not confirm that he reported a workplace injury.

On March 28, 2012, a worker advisor called the WCB to advise that he had additional information related to the adjudication of the claim. He noted that a security camera may have captured the reported event and that the WCB did not directly speak to the worker's supervisor who was present when the worker's accident occurred.

On March 28, 2012, the employer's representative advised the WCB that the security camera identified by the worker had been non-operational since December 2011.

On March 28, 2012, the supervisor was contacted and he confirmed the information outlined on his signed statement was accurate. He noted that prior to the claimed work accident of January 19, 2012, the worker complained that his back and ribs were sore as a result of the fall that occurred while taking the bus. He noted that the worker performed his regular duties on January 19 and 20, 2012. He said the worker called him on January 23, 2012 to report that he was continuing to have back and rib pain and that he advised the worker to see someone to get medication if appropriate. He said the worker did not specifically report a work-related incident dating back to January 19, 2012.

In a second decision dated March 28, 2012, the worker was advised that the information obtained from his direct supervisor suggested that there was a history of back pain prior to January 19, 2012 and that there was no available surveillance footage. Based on these findings, no change would be made to the previous WCB decision.

On April 5, 2012, the worker advisor requested Review Office to reconsider the decision made by primary adjudication. The worker advisor acknowledged that while the worker delayed in reporting to his employer and in seeking medical attention, the worker did both within a reasonable amount of time and within the time frames set out in The Workers Compensation Act (the "Act"). The worker advisor indicated that the evidence supported that the worker suffered an injury while at work on January 19, 2012.

On May 8, 2012, Review Office determined that the claim was not acceptable. Review Office indicated that it placed weight on the evidence provided by the employer that they had no knowledge of a work-related accident occurring on January 19, 2012. Review Office was also skeptical of the worker's contention that he was bed ridden for a week prior to seeking medical treatment on January 27, 2012. Review Office noted that a week of bed rest prior to seeking medical treatment was a significant amount of time to claim to have been spent in bed with total disability, especially taking into consideration the fact that the worker worked the day after the alleged injury which logically would have been the acute phase of any strain-type condition.

On May 15, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged for September 19, 2012. The September 19, 2012 hearing was adjourned as the worker failed to attend the hearing. On October 27, 2012, the worker submitted a further appeal to the Appeal Commission and a hearing was held on April 25, 2013.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by 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. The worker felt the issue was quite clear and simple. He was working a late shift with one co-worker and while he was closing up, he suffered a slip. While initially he thought it was a simple slip, it ended up to be a serious slip. The pain worsened until he was totally immobile and unable to get out of bed. The worker felt that what confused his claim was that on approximately January 2 or 3, 2012, he had a slip and fall accident while getting off a bus. He confirmed that he suffered an injury from that fall, but that the injury was limited to bruised ribs. He did not injure his back until the workplace accident on January 19, 2012.

The employer’s position:

The employer did not participate in the hearing.

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 to his back during the course of his employment on January 19, 2012. On a balance of probabilities, we are able to make that finding.

On reviewing the written documentation available on the WCB file, the panel finds that the worker was very consistent in the reporting of his mechanism of injury:

• On January 27, 2012, the worker attended at a hospital emergency department and reported that he had: "Slipped 8 days ago at work and hurt back as he caught himself to prevent falling."
• In an undated note received by the employer on February 1, 2012 the worker wrote: "Slipped and hurt back January 19 at back overhead door. Still managed to work the 20^th but the pain and mobility was very limited."
• In the Worker Incident Report taken February 13, 2012 the worker reported: "I was closing the overhead doors where they wash the trucks and it was dark and there was a thin sheet of ice and I lost my footing and tried to correct myself and twisted my back."
• When seen by his attending physician on March 1, 2012, the worker's description of injury was: "Hurt left lower back while pulling down on chair lifting bay door."

The panel was impressed by the consistency in reporting of the injury by the worker. We also note that the worker was keenly interested in obtaining the surveillance video of the worksite which he believed was available from the employer. While ultimately it appears that the video camera was non-operational, the worker's insistence that the video footage ought to be obtained from the employer demonstrates a sincerity in his belief that there was independent corroborating evidence of the accident.

There remains the issue of delay in reporting of the accident. The accident is alleged to have taken place on January 19, 2012, yet the worker still worked his shift on January 20 (which was a Friday) and did not call in sick until January 23 (Monday). He did not seek medical attention until January 27, 2012. When asked why he delayed, the worker said it was because he was bed ridden and was not able to move or get himself to a doctor until January 27. When asked how he could have worked on January 20, the worker said it was an easy day and he was able to complete his duties despite the pain.

At the hearing, the panel asked the worker about notations in the medical reports from his attending physician regarding a history of alcohol abuse. At the hearing, the worker acknowledged that at the time of the accident, this was a condition which affected him and that he had been self-medicating with Advil and alcohol. He was also able to add that with the support of his physician, he has since been able to beat his addiction and is now a recovering alcoholic.

Although there was a delay of 8 days between the accident and the first medical attention, the panel finds that the worker's addiction issues were a factor in explaining the delay and we find that this does not detract from the consistent reporting of the accident, albeit on an untimely basis. We also accept the worker's evidence that prior to January 19, 2012, he did not have any problems with his back and his injury from slipping while getting off a bus was limited to bruised ribs.

The panel therefore accepts that the worker suffered an accident at work on January 19, 2012 from which he suffered an injury to his back. We leave it to the WCB to further investigate and adjudicate the extent of the back injury. The worker's appeal is allowed.

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 June, 2013