The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was insufficient evidence to support that he suffered an accident at work on January 8, 2014. A hearing was held on August 28, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a hernia injury that he related to lifting a patient onto a stretcher on January 8, 2014. The worker advised the WCB that the pain had increased over the following week and that he saw his family doctor for treatment on January 20, 2014 and an ultrasound was suggested. The worker indicated that he reported the injury to his manager on January 15, 2014.

The Employer's Incident Report dated January 16, 2014 indicated that the worker's manager received a call from the overnight dispatcher to say that the worker had booked off his January 16, 2014 shift because he had a hernia. The manager then texted the worker who advised that he was injured on January 8 or 9 during a stretcher lift. The worker advised that he saw his doctor on January 13 and was told he had a hernia and needed an ultrasound. The worker advised that he did not tell his partner or any member of management until January 16, 2014.

A Doctor First Report showed that the worker was seen for an assessment on January 20, 2014 and the suspected diagnosis was an inguinal hernia. The worker's description of injury was inguinal pain with lifting patient.

On January 27, 2014, a WCB adjudicator spoke with the worker by telephone and the following information was documented:

• the worker confirmed there were no witnesses to the accident. He worked for about another week and did not mention it to his partner. He reported the accident to his manager on January 15, 2014 as he was getting worse and could not continue working. He then saw his doctor on January 20, 2014.

• the initial symptoms were lower abdominal pain on the right side brought on initially by lifting.

• the worker did not report the accident right away as he did not think much of it. He never had a hernia before.

The adjudicator advised the worker that given the delay in reporting and seeking medical attention and no evidence of a work related injury as he continued to work after the alleged incident, the WCB was unable to establish that an accident occurred at work. On February 4, 2014, the worker appealed the decision to Review Office.

On April 7, 2014 Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the fact that the worker did not report the event until a week after it occurred nor did he make any ongoing complaints or demonstrate any observable disability in relation to his abdominal difficulties prior to January 15. Review Office concluded that there was insufficient evidence that the worker was injured in an accident as defined by the Act on January 8. On May 2, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The worker is appealing the WCB Review Office decision that his claim for injury is not acceptable.

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(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.

Worker's Position

The worker attended the hearing and answered questions posed by the panel.

The worker told the panel that while working on January 8, 2014 , he felt a" tweak" in his lower groin area. He thought that over time the condition would resolve and the pain would disappear. He said the intensity of the pain lessened over the weekend but increased on Monday, January 13th and that he attended his family physician on this date. The physician provided a diagnosis of a suspected hernia and ordered an ultrasound. Two days later the worker advised his employer that he was injured, may have a hernia, and was remaining off work.

With respect to a specific incident that is noted as causing the injury, the worker advised that he could not identify a specific incident, only that it happened at work when he was moving a patient. He said that with the help of the employer's dispatcher, he identified one of the cases he was working on in the afternoon on January 8, when he first felt the pain. He could not provide any details of this case or say with certainty this was the case where he felt the pain.

The worker advised that his job involves moving patients by stretcher between hospital and care homes. He deals with 5 to 6 cases each day and has been performing these duties for more than 2 years. He described his job as involving heavy lifting. The week that he was injured he was working 11:00 a.m. to 7:00 p.m., Monday to Friday.

Regarding his visit to his family physician, he advised that the physician did not examine him but made the diagnosis based on his description of the pain and injury.

The worker returned to work on February 24, 2014 before he had results from a CT scan because he had expenses and bills to pay. The worker told the panel that the ultrasound and CT testing did not identify a hernia and that over time the pain went away.

Employer's Position

The employer was represented by its owner. The representative provided a summary of the information in the employer's possession regarding the injury, worker reporting and medical information. She also had provided information about the number of calls workers make each day, weight limits and types of cases. She noted that the injury occurred on January 8 and the worker did not advise his co-worker at the time of the injury and did not inform the employer until January 15. She advised that workers are informed about the process for dealing with injuries at work and the importance of reporting accidents when they occur. She noted the worker was aware of the process, had recently filed a claim yet failed to follow the process in this case.

The representative advised that the employer has a modified duties program and told the panel about the employer's attempts to provide modified duties and get the worker back to work. She was concerned about the worker's reluctance to participate in modified duties.

Analysis

The worker is appealing the determination that his claim is not acceptable. For the worker's appeal to be accepted, the panel must find the worker sustained an injury by accident arising out of and in the course of his employment. The panel was able to make this finding.

In determining that the claim is acceptable, the panel relies upon the following:

• credibility of the worker: The panel finds the worker to be very credible. The panel finds that the worker answered questions forthrightly and to the best of his knowledge and not always to his advantage. He advised that he was unable to identify a specific incident which caused the injury, only that he felt a "tweak" on a particular day. He said the case he identified was selected randomly as it was around the time he felt the "tweak" and that the Leadership Team Leader helped find this reference by reviewing his cases with him.
  
• the worker's job duties include heavy lifting on a regular basis, which involves loading in the intra abdominal area which can cause hernias and muscular problems. The worker said that his job involved placing patients on stretchers and transporting them between facilities. The employer advised that the average patient weighs 167 pounds. Patients who weigh more than 250 pounds are moved using a 4 person crew with special equipment.
  
• the worker did seek medical attention in a reasonable time in the circumstances of this case. He was injured on Wednesday, January 8, 2014 and saw his physician on Monday January 13 prior to his shift. He told the panel that he delayed seeing his physician because he expected the pain to go away. When the pain persisted he promptly saw his physician and then reported the accident to his employer.
  
• the incident occurred on January 8, the worker saw his family physician on January 13, 2014 and advised the employer on January 15 after he received the physician's advice. The panel finds that this delay does not prejudice the WCB or employer and was understandable in the circumstances of this case.

The panel notes the worker's advice that testing for hernia was negative and that he was ultimately diagnosed with a severe muscle strain. He said that over time the pain disappeared and that he has not had any further problems. The panel finds that the initial diagnosis of a possible hernia was reasonable and it was reasonable for the worker to act upon this diagnosis. The panel finds that the worker's diagnosis of a muscle strain is consistent with the worker's job duties and the progression of the condition over the next week, including his visit to his doctor on the following Monday and the eventual report to his employer on the following Wednesday. The panel therefore finds that the worker suffered a work-related muscle strain in the lower abdominal area and that the claim is acceptable.

The panel did not address the issue of wage loss which must now be addressed by the WCB.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of September, 2014