Decision #164/13 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss for May 8, 2013 and medical aid benefits. A file review was held on November 18, 2013 to consider the matters.

Issue

Whether or not the worker is entitled to wage loss benefits for May 8, 2013; and

Whether or not the worker is entitled to medical aid benefits.

Decision

That the worker is entitled to wage loss benefits for May 8, 2013; and

That the worker is entitled to medical aid benefits.

Decision: Unanimous

Background

On May 14, 2013, the worker filed a claim with the WCB for injury to his low back which occurred at work on May 7, 2013. The worker reported that he was lifting and stacking boxes of bananas and fruits weighing forty to fifty pounds. When he lifted a box, he must have twisted and he felt a "good pull across his lower back." He continued to work and then told his supervisor that he could not do it anymore and left. The worker reported that the earliest medical appointment he could get was on May 14, 2013. The worker provided the name of a co-worker who was aware of his injury on May 7, 2013.

On May 16, 2013, the employer's warehouse manager provided the WCB with the following information:

  • The worker was employed with the company from April 14, 2013 until he was terminated on May 9, 2013.
  • The worker's scheduled days off were May 5 and 6.
  • On the afternoon of May 7, the worker told his supervisor that his back was getting "tired." The worker was then offered light duties but he refused and he continued with his original job. At the end of his shift, the worker was offered overtime work but he refused as his back was tired and he was going home.
  • On May 8 the worker called to say he twisted his back and was going to see his doctor.
  • On May 9 the worker returned to his regular duties but made no mention of any ongoing pain. The worker told the secretary that he had not seen a doctor but was given a prescription for anti-inflammatory medication over the phone.
  • The worker asked his supervisor if he should fill out a WCB form for his injury on May 7. The supervisor told him that he was not familiar with the process and the worker was advised to speak with the manager about it. The worker told his supervisor that he was not going to worry about it and did not approach the manager at any point regarding a work-related injury until the day after his employment had ended. At the end of the day on May 9, company management informed the worker that he was terminated from employment due to poor performance.
  • The worker called the employer on May 10 to inquire if the manager was aware that he had injured his back while working on May 7. The manager told him that he was not informed of any work-related injuries taking place.
  • On Tuesday, May 7, the worker told a co-worker that he had fallen off his deck during his days off.

A Doctor First Report dated May 15, 2013 indicated that the worker complained of low back pain after lifting boxes at work. The diagnosis was a sprain of the low back. The treatment plan included rest, physiotherapy and anti-inflammatory medication.

The WCB adjudicator called the worker, the warehouse manager, the supervisor and the secretary for additional information related to the worker's reporting of an accident and the events that occurred between May 7 and 9, 2013.

On May 16, 2013, the WCB accepted the worker's claim but determined that he was not entitled to wage loss benefits or medical treatment in relation to his reported injuries. The adjudicator stated:

While the accident occurring on May 7/13 have (sic) been confirmed, it is the opinion of Compensation Services that there is insufficient information to establish a direct relationship between your lower back difficulties and resulting medical care on May 15/13. You returned to work on May 9/13 and performed your regular work duties as scheduled and without complaint and you delayed in seeking medical attention. As such, no responsibility will be accepted for wage loss benefits and medical treatment beyond the date of accident, May 7/13.

On May 21, 2013, the worker appealed the adjudication decision to Review Office. The worker submitted that he injured his back at work on May 7, 2013 and that he missed work on May 8, 2013. He said he called work to tell them that his back was too sore to work and that he tried to see his doctor on May 9 but the office was closed until May 13, 2013. He tried to work on May 9 but could not finish his shift. He said his boss called him in and he was fired. He said his boss knew that he injured his back so he left at 3:00 p.m. He called a doctor on May 13, 2013 but was not able to see him until May 14, 2013.

A medical certificate from the treating physician dated May 14, 2013 stated the worker was "off work May 8 due to medical work related injury until future notice."

On May 28, 2013, the worker advised the WCB that he was cleared to return to work and that his last medical treatment was on May 14, 2013.

On July 16, 2013, Review Office determined that the worker was entitled to wage loss benefits for May 8, 2013 and was entitled to medical aid benefits. Review Office considered the evidence from the worker's supervisor and that provided by the employer's secretary. Review Office concluded that on a balance of probabilities, the worker's reported low back difficulties were due to lifting boxes at work on May 7, 2013 and that his time loss on May 8, 2013 was related to his compensable injury. It was unable to relate the worker's loss of earning capacity after May 9, 2013 to the compensable injury as it was felt that the worker was likely fit to perform light duties which were available with the employer.

With regard to medical aid benefits, Review Office found it was reasonable to cover the worker's visit to his doctor on May 14, 2013 as the reason for his attendance was due to his May 7, 2013 accident. While the treating physician recommended the worker remain off work until further notice, Review Office was unable to find the clinical findings to support that the worker was incapable of working in any capacity.

On July 7, 2013, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged. The employer submitted that there was no relationship between the worker's low back difficulties and an accident at work.

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 that 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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years.

The employer disagrees with the Review Office decision to pay the worker wage loss benefits for May 8, 2013 and medical aid costs.

Employer's Position

The employer provided a written submission outlining its position.

The employer's warehouse manager wrote that:

"Compensation services had denied [worker's] claim because they could not establish a relationship between [worker's] lower back difficulties and a work accident. I had agreed with this decision based on the following facts:

· On May 7th [worker] had informed his co-worker [name] that he had gotten intoxicated and fallen off his deck the day prior (May 6th).

· On May 7th [worker] never cited a specific incident, only told his supervisor [name] that his back was "tired".

· On May 8th [worker] notified [name] he would not be coming to work due to a sore back, but did not identify it as having been a workplace injury.

· May 9th [worker] performed regular duties until he was terminated at 3pm that day.

· May 10th [worker] contacted myself to inform me of a workplace injury.

· Although [worker] states his injury as having taken place May 7th, he did not report the incident to WCB until May 14th.

Furthermore, [worker] made claims which were false. Some of which he later admitted to being incorrect, others can be proven; to be incorrect with supporting documentation and /or witness accounts. This includes:

[Worker] stated on his worker incident form that "I continued to work and then went up to [supervisor] and told him I couldn't do it anymore and then left" and that the "injury happened around 2 pm. We have documentation to support that [worker] not only worked the entirety of his 8 hour shift but ALSO voluntarily accepted overtime that day, working until 3:50 pm, 20 minutes past his scheduled finish time. Also please note that in the statement provided by [supervisor], [supervisor] states when [worker] made mention of his back being "tired", [supervisor] offered [worker] modified duties which [worker] refused…Additionally, I disagreed with [worker] being compensated for missing work on May 8th because [supervisor] had stated to him the day prior, we are able to offer the option of modified/light duties.…Reviewing the time line of the events and the fact that [worker] did not seek medical attention or report an incident until after he had been terminated, the information provided supports the original compensation services decision that [worker's] back problems cannot be conclusively linked to a workplace incident."

Worker's Position

The worker did not participate in the review of the WCB decisions.

Analysis

There are two issues before the panel:

1. Whether the worker is entitled to wage loss benefits for May 8, 2013; and

2. Whether the worker is entitled to medical aid benefits.

For the employer's appeals to be successful the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity on May 8, 2013 as a result of his workplace injury and that the worker did not require medical services as a result of the workplace injury.

The panel was not able to make these findings. The panel finds that the worker was injured at work on May 7, 2013. This was confirmed by the supervisor who advised a WCB adjudicator that on May 7, 2013 the worker told him his lower back was sore from lifting boxes at work.

File information also shows that the worker contacted the secretary at the employer's office on May 8, 2013 and advised that he would not be at work as he twisted his back. In its appeal, the employer notes that the worker advised that "he would not be coming to work due to a sore back, but did not identify it as having been a workplace injury." The panel finds that when viewed in conjunction with the worker's and the supervisor's evidence, the worker's phone call supports a finding that the worker missed work on May 8, 2013 because of his May 7, 2013 workplace injury. The panel finds, on a balance of probabilities, that the worker's time loss on May 8, 2013 is related to a workplace injury and that he is entitled to wage loss benefits for this day.

While the employer advised that light duty work was available on May 8, 2013, the panel finds that it was reasonable for the worker to miss work on the day following the injury. The panel notes that the worker returned to work on May 9, 2013.

With respect to medical aid benefits, specifically the visit to a physician on May 14, 2013, the panel notes that the physician wrote "pain low back after lifting boxes at work." The panel finds that the worker's visit to the physician was proximate to and due to the workplace accident. Accordingly, the panel finds that the worker is entitled to medical aid benefits. The panel notes the worker offered a reasonable explanation for the short delay in seeing his physician.

The employer's appeal on both issues is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of December, 2013

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