Decision #44/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on March 12, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker, a truck driver, reported to his employer on July 10, 2017 that he injured his left hip and upper leg on July 5, 2017. On his Worker Incident Report, filed with the WCB on July 19, 2017, the worker described the incident as:
I was climbing up the back of the trailer when I felt a pain in my hip area. Pain continued to get worse over the next few days.
On July 18, 2017, the worker sought medical attention at the hospital, with a follow-up appointment with his doctor. The doctor's examination findings were indicated as:
Painful slight restriction of ROM left hip.
Tenderness @ left hip anteriorly
Previous left hip replacement
The worker was diagnosed with left hip pain/strain. The worker attended at a further doctor's appointment on July 19, 2017 and was diagnosed with "…left hip strain with underlying replacement."
The WCB advised the worker on July 26, 2017 that his claim was not acceptable. The WCB determined that a work related accident had not been established as the worker had delayed in seeking medical attention and reporting the accident. As well, the WCB found that the worker had continued to work and was capable of performing his regular duties.
On July 31, 2017, the worker requested reconsideration of the WCB decision to the Review Office stating, in part, that he "…didn't report it (the accident) right away, as I thought the pain would go away in a couple of days."
In their decision of September 13, 2017, Review Office upheld the WCB's July 26, 2017 decision. Review Office determined, on a balance of probabilities, that an accident as defined by the Act had not been established. Review Office found that the worker's delay in both reporting the incident to his employer and seeking medical treatment made it difficult to establish that an injury occurred on July 5, 2017. As the worker did not make any complaints to his employer and continued to work his regular job duties, Review Office also found it could not account for the worker's description of being in "excruciating pain" related to the July 5, 2017 accident.
The worker filed an application to the Appeal Commission on October 20, 2017. An oral hearing was held on March 12, 2018.
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 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.
"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,
(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.
The worker was self-represented and was accompanied by his wife.
In answer to questions from the panel, the worker provided a detailed description of his job duties on the day of the accident and the specific accident. He said that he was required to chain down a transfer unit which was loaded on a flatbed trailer for the purpose of delivering it to another site. His duties usually involve delivering pavers which are loaded and secured in a different fashion than transfer units.
Regarding the mechanism of injury, the worker described the actions he took to climb onto the flatbed trailer to secure the transfer unit. He said that he climbed up by placing his right leg on a narrow lip on the flatbed, grabbed the tire of the transfer unit with his left arm, put his left leg onto the floor of the flatbed and pulled himself up to the flatbed floor which was two to three feet above ground level. As he did this, he heard a pop and he felt pain in his left hip area with all his weight on the left leg.
The worker advised the panel that he did not immediately report the accident because he thought he could work through it. He said that his duties were not as heavy on the days following the injury. He advised that:
Thursday, Friday we were moving that paver around to do some jobsites, so then I was just sitting on the jobsite not doing nothing.
Then the weekend I did pretty much the same thing at home, just rest. And then that following Monday, started moving things around again and I just, and the pain started getting worse and worse.
He said that he got off early on Monday July 10, 2017 and attended a walk-in clinic. The physician told him that he had a muscle strain and sent him for an x-ray which did not show anything. He said they did not know it was a hip injury until he had an MRI.
The worker advised that he underwent a left hip replacement about 12 years earlier. He also had a right hip replacement. He said that prior to the accident, he did not have any significant pain in the left hip area. He advised that he had an annual examination by his orthopedic surgeon in December 2016. He said that his physician did not advise him of any concerns at that time regarding his hip replacements. The worker believes that his current left hip pain was caused by the workplace accident. The worker provided a report from his orthopedic surgeon which indicates a current diagnosis of "aseptic loosening left total hip, right total hip replacement."
The worker said that after his hip replacement and prior to the July 2017 injury he had no limitations except:
I was doing pretty much everything, everything but sports, I could never do sports, any type of running, or whatever, because it would be too much, you know, jarring or whatever on your hips and whatever, just everyday things, like, except for the sports.
Regarding whether he has pain in his right hip, the worker advised:
No, I don’t, no. Other than the first thing, you wake up in the morning, get out of bed, then you’ve got a little bit of pain on both hips then, but it’s always on the left, always on the left more than the right.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of employment. For the reasons that follow, the panel is able to make that finding.
The panel attaches significant weight to the worker's description of the accident and to the worker's evidence that he did not previously have pain in this area. The panel finds that the mechanism of injury described by the worker is consistent with an injury to the left hip. The panel finds there was a discrete incident which resulted in an acute injury. The worker's evidence was that he immediately felt pain in his left hip area when climbing onto the flatbed trailer.
As for the nature of the injury, it was initially thought to be a hip/muscle strain but later found to be an injury to the worker's left hip joint. The panel notes that the worker underwent a left hip replacement 12 years earlier. The worker advised that he did not have any left hip pain prior to the accident. He also advised that he saw his orthopedic surgeon in December 2016 and was not advised of any concerns about his left hip. The worker provided a report prepared by his orthopedic surgeon which provides a current diagnosis of "aseptic loosening left total hip, right total hip replacement."
Regarding the issue of delay in reporting, the panel finds that the diagnosis is consistent with the mechanism of injury being the manner in which the worker pulled himself up into the flatbed trailer. The panel notes that the Review Office incorrectly found that the worker did not seek medical attention until July 18, 2017. It noted that "the worker delayed in seeking medical attention by almost two weeks." The panel notes that the information on the file confirms that the worker reported the incident to his employer on July 10, 2017 and also sought medical attention on this date. A report dated July 10, 2017 from the worker's physician indicates that the worker complained of an injury to his "LT HIP/UPPER LEG". Given the circumstance of this case, the panel finds that the worker reported the incident to the employer and sought medical attention within a reasonable period of time, in compliance with the Act.
The worker's appeal is approved.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of April, 2018