The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for a low back injury occurring in September 2013 was not acceptable. A hearing was held on October 15, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On October 1, 2013, the WCB received the worker's Worker Injury Report for a September 11, 2013 low back injury that he reported to his employer on September 11, 2013.

The Employer's Accident Report dated September 19, 2013, indicated that the worker had not provided them with any details related to a low back injury occurring on September 11, 2013. The employer indicated that the worker came to work on the morning of Thursday, September 12, 2013 and stated that he could not work that day because he was in a bad mood. The foreman then sent the worker home. On Friday, September 13 and Monday, September 16, 2013, the supervisor tried to get in contact with the worker but was unsuccessful. On Wednesday, September 18, 2013, the worker sent a message stating that he had not been at work because he hurt his back but no details were provided. The employer indicated that they tried to contact the worker to find out more details but did not hear anything back.

A Doctor First Report showed that the worker attended for treatment on September 17, 2013. The physician reported that the worker was shoveling and felt immediate and severe pain in his low back and that this "is a repeat injury." The date of accident was September 11, 2013. The diagnosis of the worker's back condition was mechanical low back pain.

On October 4 and 16, 2013, a WCB adjudicator documented telephone conversations he had with the worker and the worker's crew supervisor and foreman with respect to the worker's claim for a low back injury occurring on September 11, 2013.

On October 16, 2013, the worker was notified by the WCB that his claim for compensation had been denied. The WCB noted that the worker claimed he injured his low back on September 11, 2013 while shoveling and he reported the injury to his foreman. The worker returned to work the following morning and reported to his foreman that he was hurt and the foreman advised him to go home. The first medical treatment sought by the worker was September 17, 2013.

The adjudicator noted that the information from the employer was that there was no report of a low back injury until September 17, 2013 and then no formal report was completed. The employer tried to contact the worker on multiple occasions but had received no response. Given the delay in reporting, the inconsistent history of injuries provided, and the delay in seeking medical treatment, the WCB was unable to establish the necessary link between the worker's low back difficulties and an accident occurring at work.

On February 18, 2014, the worker sent an e-mail to the WCB stating that he was being bullied by his employer and WCB due to non-payment of benefits. He stated that his injury occurred in October 2013 but no claim was established because they said that an injury never occurred at work. He stated that due to his immediate supervisor's bullying nature, no paper work was provided to the WCB and the injury was hidden by the employer. The worker indicated no one wanted to work with that foreman and at the time, he was the only driver on the site. On March 10, 2014, the worker provided the WCB with a further written submission in this regard.

In a decision dated April 25, 2014, Review Office determined that there was insufficient evidence to support that the worker sustained an "accident" on September 11, 2013 as defined under subsection 1(1) of The Workers Compensation Act (the "Act"). Review Office's decision was based on the following factors:

• the worker did not provide the WCB with an accident report related to a September 11, 2013 injury at work until October 1, 2013, a 3 week delay.
• the worker sought medical treatment on September 17 claiming that he felt immediate and severe pain and he discontinued work. The delay in seeking medical attention was significant given the reported level of pain and resulting absence from work.
• in his submission to Review Office, the worker indicated that he suffered from chronic and acute back issues. Review Office was not able to establish a relationship between the worker's current back difficulties and his work duties of shoveling.
• the worker's foreman was unable to confirm that the worker reported a back injury occurred while shoveling dirt on September 11, 2013. The foreman stated that the worker came to work on September 12, 2013 and advised him that he was in a bad mood and asked to go home. He had not heard any word from the worker since then.
• the worker's crew supervisor indicated that no workplace injury was reported to him on September 11 or 12, 2013. On September 12, the worker called and stated that he did not like working with his current foreman and he asked to be put onto a different crew. The worker advised that he was sick, was in a bad mood and was going home. The worker had a poor attendance record missing days from work for personal or sick reasons and was regularly late. The crew supervisor indicated that he sent a text message to the worker to call him as the worker did not attend work on September 13, 2013. On September 17, 2013, the worker sent him a text message stating that he would be pursuing a WCB claim for a back injury that occurred from the previous Wednesday.

On June 9, 2014, the worker filed an appeal with the Appeal Commission as he disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s low back injury arose out of and in the course of his employment.

Worker's Position

The worker was self-represented. He explained his reasons for appealing the Review Office decision. The worker answered questions from the panel.

The worker advised that on September 9, 2013, he was injured while dumping a load of material on a slope. He said that the foreman directed that an excavator assist with emptying the load and that this caused the truck to bounce with the worker hitting the ceiling. He said that he was able to continue working but by the end of the day he had substantial pain. He went to work the next day and complained to the foreman who was abusive and told him to continue working. He worked the full day on September 10, 2013.

On September 11, 2013, he was required to perform manual labour, shoveling on a bike path. He said that as soon as he put the shovel in the ground, he felt pain and told the foreman he could not continue. He said that he sustained a lower back L4-L5 disc compression injury. He felt pain at the waist line, in the hip flexors and tail bone. The pain was shooting through his butt cheeks to his legs. He continued to work that day but was given different duties by the crew boss. He attended work on September 12, did not work and left early. He remained in contact with the employer and spoke to the superintendant of trucks and crew supervisor.

The worker said that he sought medical attention on September 17, 2013.

The worker described the actions of the foreman to be belittling and bullying.

Regarding his current medical condition, he advised that his condition has worsened and that he is not able to return to work at this time. He said that he is seeing a physician but is not receiving physiotherapy as he cannot afford to pay.

The worker referred to witness statements that he obtained to support his claim. He said that he obtained the statements within 24 hours of the incident.

In response to concerns about the difficulty which the employer and WCB had in contacting him, he said that he provided his phone number which he has to this day.

Regarding whether he was injured in the dump truck incident or shoveling incident, he said that the WCB adjudicator told him to only include the shoveling incident in his Report of Injury. He was not able to identify the date that he spoke with the WCB adjudicator. He said the injury was caused by the dump truck incident on September 9, 2013 (two days earlier) but that he felt severe lower back pain when he shoveled on September 11, 2013, and that this is also a workplace accident. He said that the employer was aware of the incidents and never reported them to the WCB.

Employer's Position

The employer was represented by an advocate and a staff person from its HR and Safety Administration.

The employer representative noted that the worker filed a claim on October 1, 2013 for a low back injury sustained on September 11, 2013. The Worker Report of Injury indicated that the worker was shoveling on a damaged bike path when he felt a sharp shooting pain throughout his lower back. The employer representative said the worker denied this injury in a letter dated April 17, 2014 and in his submission to the Appeal Commission.

The employer representative advised that the employer was not aware of the injury. It attempted to contact the worker when he did not attend at work and when it learned of a possible injury the employer wrote to the worker offering modified duties.

The employer representative noted that the worker had a prior claim from an accident on April 12, 2013. He reviewed the detail of that claim.

The employer representative advised that the employer agrees with the Review Office decision.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. At the hearing, the worker advanced the position that his low back injury occurred on September 9, 2013 and resulted from an accident involving the use of a dump truck. This is a different mechanism of injury on a different day than that adjudicated by the WCB and Review Office. It is clear that this incident was not initially identified and that neither the WCB nor the Review Office has adjudicated the merits of this claim. The Appeal Commission can only address issues which have been decided by the WCB; accordingly, the panel is not able to deal with the dump truck incident. As noted in the Review Office decision, it remains available for the worker to ask the WCB to open a claim file on this incident.

This appeal deals with an injury resulting from an accident while the worker was shoveling on September 11, 2013. For the worker's appeal to be approved, the panel must find that the worker was injured by accident arising out of and in the course of his employment. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the evidence does not support a finding that the worker injured his low back while shoveling at work on September 11, 2013.

The panel found the worker to be a poor historian. His recall of events, dates and conversations was poor and often contradicted earlier information on the file including information that he provided. In making this decision, the panel has chosen to place greater weight on evidence which is more contemporaneous to the date of the accident than on the worker's evidence at the hearing. For example, the worker’s recollection at the hearing was that he spoke with the WCB adjudicator prior to completing his Worker Injury Report which was signed and dated September 24, 2013. However, WCB records on file from September and October 2013 do not support the worker's position that he spoke with the WCB adjudicator before he submitted the report. The panel finds that the worker did not speak with the WCB adjudicator until after he had personally delivered his Worker Report of Injury form to the WCB offices, and the worker did not receive direction from the adjudicator on the contents of the report, specifically with regards to excluding reference to the dump truck incident.

In denying this appeal the panel notes:

• the evidence of the foreman that the worker did not complain to him about back difficulties or a workplace accident on September 11 or 12, 2013. As well, the evidence of the crew supervisor who denies that the worker reported a workplace incident to him on September 11 or 12, 2013.
• on October 4, 2013 the worker advised the WCB adjudicator that he sustained a lower back injury while shoveling. He advised that it was a recurring back injury from last year. He also advised that he had an injury earlier that year and that it was not completely resolved. He did not indicate that he injured his back on September 9, 2013. He advised that he felt fine prior to his shift on September 11, 2013 with only general aches and pains. This conflicts with his later evidence that he injured his back on September 9, 2013.
• the September 17, 2013 medical report from the treating physician which indicates that the worker was shoveling and felt immediate and severe pain in the lower back. The physician diagnosed the injury as mechanical low back pain. The panel attaches little weight to the treating physician's diagnosis of mechanical back pain as it is not supported by clinical findings or examination results.
• the worker told the panel that he contacted a representative of the employer on September 16, 2013 to determine whether there was work available. This conflicts with his evidence that he was not able to work because of a work-related injury.

Considering all the evidence, the panel finds, on a balance of probabilities, that the worker's claim is not acceptable. The worker's appeal 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 4th day of November, 2014