Decision #80/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on May 24, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On July 3, 2015, the worker filed a claim with the WCB for an injury to her right hip and buttock that occurred when she fell on the corner of a hard object while performing work duties. The date of accident was listed as February 19, 2015.
The Employer Injury Report indicated that the worker reported the February 19, 2015 workplace injury to her manager on June 25, 2015. The employer noted that the worker slipped on water and landed on the corner of a machine. She went home and felt better but was now having pain in the area of her injury.
On July 3, 2015, the worker advised the WCB adjudicator that she had fallen backwards at work on February 19 landing on a half-foot high electrical-type box. She reported it to her employer sometime in March. The worker indicated that her daughter was with her when the accident happened. She did not make ongoing complaints to the employer because she is stubborn. The worker said that about a week after the incident she went to a family friend who had been a chiropractor and he suggested she see a physician. Medical attention was sought on March 12 and she continued to work her regular duties with no time loss.
On July 21, 2015, the worker's supervisor confirmed the worker mentioned that she slipped on some water where she was working but was fine. He did not remember the exact date. The supervisor stated "The report that day was more about correcting the leak than an injury."
Medical reports show the worker attended for treatment on March 12, 2015 with a history of "This lady injured her back 3 weeks ago and has been attending chiropractic therapy." Medical charts were obtained for a February 9, 2015 visit that indicated the worker had neck and low back pain issues prior to February 9.
On July 24, 2015, Compensation Services disallowed the worker's claim as a workplace accident could not be established or identified. The adjudicator indicated there was a delay in reporting the injury and a delay in seeking medical attention.
On September 9, 2015, the worker appealed the July 24 decision to Review Office. Included with the submission was additional medical information and a chronology of the accident. Also included were photographs of the object on which the worker struck her hip.
In a decision dated October 16, 2015, Review Office confirmed that the claim was not acceptable as it was unable to determine that an "accident" as defined by subsection 1(1) of The Workers Compensation Act (the "Act") had been established. Review Office noted that the worker's delay in seeking medical treatment was not consistent with the acute symptomology of severe pain and bruising that she identified in her submission. Review Office also stated that it reviewed the medical report dated May 5, 2015 and felt that the information did not support an injury occurring at work on February 19, 2015.
Review Office commented that the mechanism of injury and area of injury described by the worker was inconsistent: the worker had reported to the WCB that she fell and hit her right hip on an object; the employer stated the worker reported a water spill where she was working and that she had a little slip, but was fine and that she wanted the facility to be aware of the water leak; the physician had indicated the worker described falling backwards, landing on a junction box with severe pain in the coccyx area radiating to her right buttock.
On December 31, 2015, the worker 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 Board of Directors.
This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
Section 1(1) provides:
"accident" means a chance event occasioned by a physical or natural cause; and includes
a wilful and intentional act that is not the act of the worker,
any
event arising out of, and in the course of, employment, or
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.
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.
Worker's position
The worker was self-represented at the hearing and was accompanied by her daughter who assisted with the presentation. The worker described the events on the evening of February 19, 2015, explaining the layout of the room she was cleaning.
It was the worker's evidence that she went about her duties and, in turning, she slipped and fell. She described how quickly it happened but did notice some liquid on the floor. She showed the panel the point of contact made by the corner of the box. She pointed to an area 2 inches (5 centimeters) to the right side of her tail bone. She did recall saying ouch. Two days later she noticed she could not walk straight. She noted the bruising went away in approximately 2 weeks but the difficulties never did go away as she had believed they would.
It was the daughter's evidence that she was in a room adjacent to the one her mother was in and recalled hearing a "loud thump and ouch." On entering the room, she asked her what happened and her mother indicated she had fallen and hit her right buttock on the box, but would be okay. Knowing her mother's stubbornness, she persisted and asked her to show the area. She identified that there was a definite red spot at the point in line with her tailbone but at the inside edge of her jeans back pocket. She followed up with her mother the next day and observed a very large bruise extending into her right buttock approximately 10 inches (25 centimeters) in diameter.
The daughter noted her mother seemed more clumsy about a week later, and approximately a month and a half later she was having trouble sitting down and issues with her right leg.
The worker noted the various and ongoing issues she had with her right leg. She described the difficulties, treatments, testing and lack of progress since the time of her injury.
The worker submitted that when she had her annual physical exam on February 9, 2015, her family physician had noted her prior issues of osteoarthritis in her neck and also some low back pain on her left side towards her left hip. She had no right-sided issues at that time.
Employer's position
The employer did not participate in the appeal.
Analysis
In order for the appeal to be successful, the panel must find that the worker’s right hip and buttock difficulties arose out of the work duties and during the course of the worker’s employment on February 19, 2015. On a balance of probabilities, we are able to make that finding for the reasons that follow.
The worker noted that in her formative years she had been taught to deal quietly with any minor injuries from falls or while playing. She was also taught not to complain, to work hard and complete all chores assigned at home. This gave her a strong work ethic and led to reluctance to report seemingly minor issues until after she was assured of a problem. Even then she was stubborn and kept her personal health issues private.
The panel accepts the worker's explanation of why she waited to report her injury to her employer and file a claim with the WCB. The panel notes that the delay was largely due to the worker's stoicism, her values and beliefs related to personal health and minor injury, and her belief that her difficulties were temporary. Once she realized something sinister occurred in her right hip and lower extremity, she did file a claim.
The panel accepts the attending physician's findings of March 12, 2015 that she had sustained and acute injury at work on February 19, 2015 causing significant right-sided pain from her hip to her ankle which gradually worsened in the following weeks, leading eventually to medical treatment.
In relation to the incident on February 19, 2015, the panel accepts the worker's and her daughter's evidence of events that occurred that evening at work. The panel accepts the daughter's description of the mark and bruising as evidence of injury as well as the employer's confirmation of a report of injury. The panel further notes that no right-sided back or buttock issues were identified during an annual physical exam 10 days earlier.
After reviewing the evidence as a whole, the panel is satisfied, on a balance of probabilities, that an accident did occur on February 19, 2015 as a result of which the worker suffered a right hip and buttock injury and a corresponding loss of earning capacity.
The panel finds, on a balance of probabilities, that the worker suffered an injury from an accident arising out of and in course of her employment, therefore the claim is acceptable.
The panel notes that the worker has described various ongoing issues and examinations since her compensable injury but makes no further comment or findings regarding specific diagnoses or work-relatedness in this decision.
The worker's appeal is accepted.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker - Commissioner
Signed at Winnipeg this 1st day of June, 2016