Decision #38/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on March 8, 2017 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
On March 8, 2016, the worker filed a claim with the WCB for an injury to his tailbone that occurred on February 22, 2016. The worker reported
…I drive a logging truck. We have straps that we secure our loads with. When we throw our straps over top of our load of logs, it's always icy. I slipped on the ice and went down on the ground on my tailbone. No witness.
The worker reported that he attended a medical facility for treatment on March 2, 2016 as he did not think his injury was serious. He reported the accident to his employer on March 1, 2016.
The Employer's Accident Report dated March 9, 2016 stated that they first became aware of the February 22 accident on March 1, 2016 when the worker left a note on the seat of his truck saying that he slipped and fell when throwing straps over wood and that he landed on his tailbone.
On March 16, 2016, the worker spoke with a WCB adjudicator and confirmed that the date of accident was February 22, 2016. He was on the ground and was throwing straps around the load when he fell and landed onto his tailbone. He mentioned to his employer that he was having low back pain but they did not question it. The worker reported that his boss loads the trailers and he did not report the accident or his ongoing difficulties as he doesn't see anyone. He just picks up his trailer and leaves. His last day at work was on March 1, 2016.
On March 17, 2016, the employer confirmed that the worker placed on a note on the seat of his truck on March 1, 2016. The worker later told him that he fell on February 16, 2016 after the long weekend. The employer noted that the worker's truck is loaded with pulp 3 times per day and the longest he would go without seeing the worker was three hours. The employer said their permits had been pulled and this was the last week of work until next winter. When he saw the worker, the worker was not limping.
On March 21, 2016, the worker was asked by the WCB adjudicator why he did not report the accident to his employer sooner. The worker replied that he had the note for about 2 to 3 days in his truck before he gave it to his employer. He told his employer that he was taking Tylenol and he did not tell the employer that he fell at work. The worker said he was told by his employer to get a doctor's note to keep working and that is why he attended a doctor when he did.
In a decision dated March 21, 2016, the worker was advised that Compensation Services was not able to confirm that an accident occurred at work given his delay in reporting the fall to his employer, the fact that he continued to work and did not seek medical attention until March 2, 2016. On July 30, 2016, the worker appealed the decision to Review Office.
On September 26, 2016, Review Office confirmed that the claim was not acceptable.
Review Office noted that the worker did not report the incident to his employer despite ample opportunity to do so. He did not seem to be physically impaired by an injury nor did he seek medical care until well after the fact. Review Office noted there were inconsistencies in the stated incident date, and noted the worker's ability to carry out long days in the truck without complaints. There was little to no evidence of an injury. The coccyx pain reported to the hospital on March 2 could not be causally linked to an event that arose out of or in the course of the worker's employment. On November 10, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.
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.
Accident is defined in subsection 1(1) of the Act, which provides as follows:
"accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful 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 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;
The worker is appealing the WCB Review Office decision that his claim is not acceptable.
Worker's Position
The worker was self-represented.
The worker advised that he is a truck driver who hauls timber on remote roads. He drives a large truck equipped with good suspension and an air-ride seat. He works long hours, picking up and delivering timber, up to three deliveries per day. He must strap and unstrap each load. The work area is often covered by ice. Much of his driving is on bush roads and over frozen swamp.
He explained that he injured his tailbone on February 22, 2016. He said that he slipped on icy ground when he was fastening straps on his load. He said that while his back hurt at the time, it was not unbearable and he continued to work. He used over the counter pain killers to relieve the pain. However, the long days driving on rough roads caused his pain to increase to the point that he went the local hospital emergency ward. He was examined by a physician who advised him to stop working. The worker advised that a physician gave him a note authorizing him to stop work.
The worker described the fall as:
Well, it just seemed like my feet went out from underneath me, throwing the straps, and the, like, I’ve fallen lots before. I, like, but this time there had to be a rock or something.
He said that he didn't lay there, he got up and continued to throw the straps. The worker said that he did not initially report the incident to his employer because he did not think it was serious and he was continuing to work. When the pain became unbearable he attended the local hospital and was told by the physician to stop work. He said that he then left a note for the employer that he had to go off work. He said it was difficult to find an opportunity to talk with the employer so he left a note for the employer. Upon receipt of the note, his employer laid him off and advised that he required a "clean bill of health" before he could return to work.
When the worker received clearance from a physician authorizing his return to work on April 1, 2016, the worker provided the note to the employer. The worker confirmed that the hauling season ended in mid-March because the road permits were pulled and the wood site was out of wood. The worker has not returned to work as of the date of the hearing as the employer has not offered employment.
In answer to questions from the panel, the worker referred to several medical notes which are on the claim file.
Employer's Position
The employer did not participate in the hearing.
Analysis
The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that 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.
The worker's evidence is that he injured his back at work on February 22, 2016. He continued to work until the pain worsened. He then attended a local hospital emergency ward.
The panel notes the "Out-Patient and Emergency Report Form" dated March 2, 2016 confirms the worker's evidence that he complained about an injury to his back. The hospital record indicates "Fell @ Feb 22/16 on ice, hit coccyx. +tender when driving." It also noted that coccyx was tender. The noted diagnosis was soft tissue injury.
The panel finds that the "Out-Patient Emergency Report Form" is consistent with the worker's description of the incident and related timelines.
The panel accepts the worker's evidence that he was working long hours, at times between 12 and 13 hours per day, picking up and dropping off loads. Of particular relevance is the worker's evidence that the roads were very rough, large portions of which were winter roads and roads built over swamp. The panel accepts that the driving conditions aggravated the initial injury to his coccyx and impaired his ability to continue driving.
The panel finds, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment on February 22, 2016, and that his claim is acceptable.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of April, 2017