Decision #38/16 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for a low back injury occurring on June 19, 2013. A hearing was held on January 14, 2016 to consider the employer's appeal.
Issue
Whether or not the claim is acceptable
Decision
That the claim is acceptable
Background
On July 12, 2013, the worker filed a claim with the WCB for a low back injury that occurred at work on July 2, 2013. The worker reported that he finished his shift on July 2 and continued to work for one more week after the incident. The worker said he continued to have back pain while working and that he self-medicated with Advil and used heating pads. Medical attention was sought on July 12, 2013.
On July 29, 2013, the accident employer's representative reported that the worker was off work on July 3, 10, 11 and 12, 2013, and was on pre-scheduled vacation from July 13 to 21, 2013. On July 22, 2013, the worker returned to full regular work duties. The representative stated:
As this worker did not seek any medical care until July 12, 2013 for this very minor incident from June 19, 2013, and continued to perform full regular duties, there is no continuity of complaint, as well as no medical to support total disability for the time missed on July 3, 10, 11 and 12, 2013.
On August 1, 2013, a WCB adjudicator contacted the worker to discuss his claim. The worker reported that the date of accident was June 19, 2013. He was ducking under a low hanging beam and felt a sharp pain in his low back. He continued to work, as he thought it was just a pinch. He reported the accident to his employer on June 19, 2013, and co-workers were aware of his ongoing complaints.
On August 22, 2013, a WCB medical advisor opined that the mechanism of injury described by the worker, bending under a low beam, appeared to correspond with the worker's reported symptoms. The worker had time loss of less than 5 days, and was now apparently back at full duties. The time loss appeared appropriate and related to the reported workplace injury.
In a decision dated August 26, 2013, the WCB adjudicator accepted the worker's claim for a low back injury occurring on June 19, 2013. The adjudicator's decision was based on the WCB healthcare opinion outlined on August 22, 2013 and confirmation that the worker complained to several co-workers about low back difficulties up until July 9, 2013. On April 17, 2015, the employer appealed the decision to Review Office.
On May 21, 2015, Review Office confirmed that the worker's claim for compensation was acceptable. Review Office found that the worker's acute back symptoms (injury) were related to the mechanism of injury of stooping under a low beam. It found that the medical findings recorded on July 12, 2013 supported the presence of continued symptoms associated with the workplace injury. Review Office concluded that the worker had an accident arising out of and in the course of his employment in accordance with The Workers Compensation Act (the "Act").
On July 17, 2015, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's 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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
Employer's Position
The employer was represented by an advocate who participated by teleconference. It was submitted that the worker delayed in seeking medical attention with respect to the reported injury of June 19, 2013. Given that delay, proof of injury as it related to a June 19 incident could not be reasonably established. The initial medical evaluation on July 12 could not validate or confirm an injury was sustained on June 19, and to relate the findings on July 12 to an injury 3 weeks earlier was "retroactive speculation."
The employer maintained that there was no medical evidence which could sufficiently establish a personal injury arising out of and in the course of employment as required under the Act. No diagnostic imaging was done at the time. It was submitted that in the absence of medical evidence, the WCB medical advisor could not appropriately comment on the etiology of the incident or the medical status of the worker between June 19 and July 12, 2013.
It was also submitted that the worker's complaints of back pain did not constitute sufficient evidence to establish that personal injury was sustained on June 19, 2013. In the employer's view, a diagnosis of back strain on July 12 could not be reasonably applied to the worker's condition of June 19 in the absence of medical evidence in the intervening period.
It was submitted that the worker was unable to explain the delay in seeking medical attention. It was further noted that there were a number of inconsistencies in statements made by the worker, and significant discrepancies with the date of the accident which spoke to the credibility of his statements.
In the employer's submission, the severity of the reported mechanism of injury was negligible, and it was unlikely that a very minor instance of bending would have resulted in a disabling back injury 3 weeks later. It was noted that bending is a function of daily living, rather than a hazard specific to the worker's employment. It was submitted that the reported injury should be considered to have arisen from a purely personal source, over which the employer has no control, and the claim should be disallowed for this reason.
It was further submitted that while the WCB relied on the comments from 2 co-workers as speaking to the continuity of complaints from June 19, these statements were strictly hearsay evidence of complaints by the worker, and should be accorded little weight. In addition, it was noted that the WCB recognized that there were 2 further witnesses but made no effort to contact them. It did not appear that all reasonable efforts were taken in the course of the investigation, as required by WCB policy. The witness statements on record ought to carry limited weight in substantiating proof of injury.
In conclusion, it was submitted that, on the weight of the evidence, the claim should be disallowed.
Worker's Position
The worker did not participate in the appeal.
Analysis
The employer has appealed the Review Office decision that the worker's claim for a low back injury occurring on June 19, 2013 was acceptable. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of and in the course of employment on June 19, 2013. The panel is unable to make that finding.
In reaching this conclusion, the panel places significant weight on the following:
the reported mechanism of injury, bending under a low beam, is consistent with a back strain as diagnosed by the treating physician. The panel concurs with the August 22, 2013 opinion of the WCB medical advisor in that regard;
the reported history of how the injury occurred is consistent throughout the file;
the worker immediately reported the injury to his supervisor on June 19, 2013;
the worker continued to work his regular duties after June 19 while self-medicating and self-modifying;
the worker's supervisor and co-workers were aware of his ongoing back difficulties from June 19 through to July 10, 2013;
the worker's condition worsened over time, to the point that he was unable to work on July 3, 2013 and called his supervisor to let him know;
the worker returned to work on July 4, 2013 and continued his regular duties by self-modifying, but reached the point where he was unable to work on July 10 and 11, and sought medical attention on July 12, 2013;
the injury resolved within a relatively short period of time, consistent with what the panel understands would be expected of a strain injury. The worker was on holidays from July 13 to 21, 2013, then returned to work light duties on July 22 and to regular duty on July 29, 2013.
The panel finds that any delay by the worker in seeking medical attention was not unreasonable. The worker immediately reported his injury to the employer on June 19. He thought it was just a pinch and tried to work through it. Once his condition worsened and he started having to miss time from work, he sought medical attention. In the panel's view, this type of delay for a soft tissue injury is not unusual in the circumstances of this case, given the eventual diagnosis of a muscle strain, the immediate reporting of the injury, the awareness of his co-workers and the worker's continual efforts to perform his regular duties. As stated above, the panel is satisfied that, in the circumstances of this case, medical attention was sought in a reasonable time frame.
In respect to the difference in the date of incident as reported in the worker's report to the WCB (July 2) and the employer report (June 19), the panel is satisfied that this is explained by the sequence of events. Shortly after the employer filed its report, the worker confirmed that the injury originally occurred on June 19, 2013. The date which the worker had originally referred to, being July 2, 2013, was the point at which his condition had finally reached an acute phase, requiring time off.
As to the employer's submission regarding the weighting of the co-workers' statements on file, the panel notes that co-workers confirmed that they were aware of the worker's injury and difficulties through this period of time. Reports of statements from the co-workers who did contact the WCB date from August 2013 and were contemporaneous to the accident. In response to a question from the panel, the advocate acknowledged that he was not aware of anything that would indicate that the co-workers who were interviewed were not credible or were biased in any particular way. The panel further finds that their evidence is consistent with the other contemporaneous evidence on the file.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a low back injury by accident arising out of and in the course of employment on June 19, 2013.
The panel therefore finds that the worker's claim is acceptable.
The employer's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
Signed at Winnipeg this 14th day of March, 2016