Decision #59/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable. A hearing was held on April 3, 2018 to consider the employer's appeal.
Whether not the claim is acceptable.
The claim is acceptable.
The worker reported on a Worker Incident Report dated October 21, 2016 that he hurt his lower back on October 14, 2015 from repetitive duties involving heavy lifting and demolition. The worker reported the injury to his supervisor on October 17, 2016 and noted:
It didn't get really sore until Sunday. I noticed it was getting worse. By Monday morning, I couldn't put on my boots it was so bad.
At the worker's initial appointment with the chiropractor on October 17, 2016, the worker described the workplace incident as:
[The worker] was on a job site where he was required to lift heavy materials of approximately 80-120lbs in weight on Friday afternoon. He completed his shift and felt some stiffness and thought it would go away over the weekend. By Sunday, he was in 9/10 pain at his low back. He tried showing up and doing work on Monday, but had 9/10 pain at his low back. On Monday morning, he mentioned the incident to his supervisor and work foreman. By Wednesday, he could not perform any duties at work.
The chiropractor diagnosed the worker with "Vertebral Subluxation due to traumatic onset complicated by Thoracic and Lumbosacral Sprain/Strain."
On October 25, 2016, the chiropractor provided a Medical/Physical Assessment Form for the worker that indicated "A return to work at this time would negatively impact recovery. Reassessment on 8 Nov 2016."
The employer advised the WCB on October 26, 2016 that they had concerns with the worker's claim. On November 8, 2016, the employer provided the WCB with witness statements and text messages to support their concerns.
At a follow-up appointment with the worker's family doctor on November 9, 2016, the doctor indicated that the worker was capable of returning to work with restrictions noted as "No lifting over 20 lbs, limit frequent bending/twisting motions."
The WCB advised the worker on November 22, 2016 that his claim was not acceptable. Based on their review of the file, the worker's delay in reporting the incident to his employer and the witness statements provided by the employer, the WCB was unable to establish that a workplace accident occurred on October 14, 2016.
The worker's representative asked the WCB to reconsider their decision after providing further medical evidence and witness statements on January 3, 2017. On January 11, 2017, the WCB advised the worker that the information provided by their representative was not new evidence and their decision remained unchanged.
On January 27, 2017, the worker's representative requested reconsideration of the WCB's decision to the Review Office.
Review Office overturned the WCB's decision and found the worker's claim acceptable on April 11, 2017. Review Office acknowledged the employer's concerns but found that they believed the worker did not initially intend to file a claim for his back injury as evidenced by the worker continuing to work and asking his employer for help with heavier duties after the workplace incident. The worker also reported the injury as being related to work when he attended at his chiropractor on October 17, 2016, which was before the worker was advised of an upcoming lay-off. Review Office gave little weight to the employer's argument that the lay-off was motivation for the worker to relate his injury to work. Review Office also noted that it is not uncommon to experience a delayed onset and feel the full effects of a progressive injury within a couple of days after the incident that caused the injury.
The employer filed an application with the Appeal Commission on April 18, 2017. An oral hearing was held on March 12, 2018.
Following the hearing, the appeal panel requested additional information from the employer prior to discussing the case further. The requested information was later received. On April 3, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
"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.
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.
The employer is appealing the WCB decision that the worker's claim is acceptable.
At the hearing the employer was represented by its Provincial Health and Safety Manager who made an oral submission to the panel and answered questions from panel members. The panel agreed to allow the employer to provide a supplementary written brief for consideration by the panel. On March 29, 2018 the panel received a brief from the employer's Division Manager.
At the hearing, the employer representative indicated that the employer had concerns about the claim because there were many gaps and contradictions in the worker’s story.
The employer representative noted the worker first said he was sore on Sunday, October 16 and on October 19 he reported to the foreman that it was work-related. He noted there was a 3 day gap. He said that the worker first told the foreman that it was not work related. He said that the employer was caught off guard with this whole scenario.
The employer representative said that the employer was informed by the worker's foreman that a union representative told him that the worker had actually talked to him about getting injured at home on Saturday. The employer's representative noted there was a suggestion that the worker claimed an accident because he heard the project was ending soon and he would be laid-off. However, the foreman who received this information refused to confirm it. The employer representative acknowledged that "this is all hearsay, this is not factual."
He added that:
But again, I mean, we just felt that the communication wasn’t very direct, it wasn’t very engaged. If a worker gets injured, the first thing a worker is supposed to do is let us know, right. I’m injured, there’s something going on, I need help.
He noted that the worker took a personal day on Wednesday October 19. The employer thought this was because the worker was not feeling good. He also noted that the worker had a previous back injury.
The employer's representative also discussed the various statements that were provided by co-workers.
The March 29, 2018 written submission provided information indicating which co-workers worked with the worker on or near the date of the accident. The Division Manager submitted that:
The payroll info states that one of the witnesses to [worker's] back issues were (sic) actually present at the time of the alleged incident, and that [D.D.] was the only person aware of [worker's] struggles from a manpower perspective. The info has corresponding job numbers to illustrate that the other witnesses in question were either on different jobs (at different locations, on different dates) or had already been laid off. In our minds, they were not in a position to assess [worker's] injuries or the manner in which they arose.…
[employer ] is a large company with a well-defined safety culture that takes pride in the message to our employees regarding work-related incidents, and our supervisors (in this case [name]) are well-versed in our safety processes. In this case, we feel that [worker] has taken advantage of this for his personal gain. We contend that there was no talk of the incident being work related until [worker] was told that the job was coming to an end and that lay-offs were imminent. We feel the original denial, as made by the WCB adjudicator, was the correct one.
The employer has appealed the WCB decision which found that the worker's claim for a workplace injury was acceptable. For the employer's appeal to be approved, the panel must find that the worker's injury did not arise out of and in the course of his employment. After consideration of all the evidence, the panel finds that the worker's accident did arise out of and in the course of employment and resulted in an injury. The panel finds, on a balance of probabilities, that the worker's claim is acceptable.
The panel notes the description of the mechanism of injury provided by the worker in an incident investigation report completed by the worker on October 24, 2016. He indicated that the cause of his injury was moving, by hand, oxygen and acetylene bottles that weigh approximately 80-100 lbs. The panel finds this description to be consistent with other information on the worker's file and is consistent with stress to the injured areas.
In making this decision, the panel accepts the evidence of two co-workers who worked with the worker at the job site on October 14, the day which the worker claimed to be injured. These reports are consistent with the information provided by the worker to his chiropractor and to the employer. The panel notes that both co-workers also worked with the worker on October 17 and 18, 2016.
Co-worker (D.D.) provided the following statement on November 27, 2016:
…[worker] and I were partners at a job [employer] was performing at [jobsite]. The site is very congested, ground conditions were very uneven with debris scattered everywhere. On numerous occasions, [worker] and I manually lifted and carried oxygen and acetylene bottles while walking over this uneven cluttered ground, all the while performing our regular work duties, which are also physically demanding. [worker] mentioned to me on numerous occasions that his back was very sore and getting worse. Working side by side with him on a daily basis, it was obvious to me that he was in pain…
Co-worker (S.W.) provided the following statement on November 27, 2016:
…I [S.W.] witnessed [worker] lift and move on numerous occasions in one day large oxygen and acetylene bottle canisters weighting from 90-110 lbs which is not a common practice but both [worker] and myself had to do so …
The panel notes that the worker sought medical treatment from a chiropractor on Monday October 17, 2016. The Chiropractor provided a Chiropractor First Report dated October 17, 2016. The report noted that that the worker "was on a job site where he was required to lift heavy materials of approximately 80 to 120 lbs on Friday afternoon." The chiropractor noted the area of injury was "Thoracic, Lumbar" and provided a diagnosis of "Vertebral Subluxation due to traumatic onset complicated by Thoracic and Lumbosacral Sprain/Strain."
The panel finds that the mechanism of injury, lifting and carrying large, heavy canisters is consistent with the worker's injury.
The panel notes that the employer expressed concern regarding the validity of the claim. In particular the employer was concerned that the worker was alleging the injury because he became aware of an upcoming lay-off. The panel notes however, that the worker saw the chiropractor on October 17, 2016 and gave the chiropractor details of the injury. According tot the information on file this was before he was told of the upcoming lay-off.
In conclusion 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 and accordingly that his claim is acceptable.
The employer's appeal is dismissed.
A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of May, 2018