Decision #132/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is not acceptable. A hearing was held on August 1, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker reported to the WCB on October 20, 2017, that he injured his lower back in an incident on October 3, 2017. The worker advised that he was lifting a tire, weighing approximately 75 pounds, into a customer's car from the ground and twisted to his right. He advised the WCB that when he twisted, he felt a "crunching feeling" in his lower left back but finished his shift that day.

On October 11, 2017, the worker attended an appointment at his family doctor where he reported lower back pain. The doctor diagnosed him with left lower sciatica.

In his initial conversation with the WCB on October 25, 2017, the worker advised that he only worked part time on Monday and Tuesday, occasionally picking up extra shifts, and the workplace incident happened on a Tuesday. He finished his shift that day and spent the next week resting. The worker advised that he went back to work on October 10, 2017 and felt okay as he did not do any lifting. The worker further advised that after a discussion with a friend on October 12, 2017, it was recommended to him that he should file a claim with the WCB. The worker reported the workplace incident to his employer on October 13, 2017.

The worker attended a follow-up appointment with his doctor on October 25, 2017. The doctor noted that the worker "seems in severe distress, difficulty bending, difficulty moving, prefers to stand due to difficulty sitting, getting up…" The doctor referred the worker to an orthopedic surgeon.

At the worker's initial physiotherapy appointment on November 1, 2017, the physiotherapist diagnosed the worker with nerve impingement and a lumbar sprain and questioned whether the worker had a disc herniation.

On November 15, 2017, the WCB advised the worker that they have reviewed his file and determined that his claim was not acceptable. The WCB advised that as a result of the worker's delay in reporting the workplace incident to his employer, the worker's delay in seeking medical treatment and the inconsistencies in the medical information received by the WCB, it could not be established that the worker suffered an injury at work.

The worker requested reconsideration of the WCB's decision to Review Office on November 23, 2017. The worker advised the WCB in his reconsideration request that his delay in reporting his claim was mainly due to his lack of knowledge of the process to make a WCB claim.

Review Office advised the worker on January 23, 2018 that they had reviewed his claim and determined it was not acceptable. Review Office found that the delay in both reporting the workplace incident to his employer and seeking medical attention made it difficult to establish a relationship between the worker's difficulties and a workplace incident occurring on October 3, 2017. Review Office also acknowledged the worker's reasons for his delay in reporting the incident and seeking medical attention but noted that the difficulties the worker was reporting would likely have prompted the worker to seek medical attention earlier or to notify his employer.

The worker filed an appeal with the Appeal Commission on January 26, 2018. An oral hearing was held on August 1, 2018.

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 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was self-represented. He described the accident which involved lifting a tire on a rim and twisting to fit it in the back of a customer's vehicle. He said the pain was immediate, and seemed like heard something snap. He felt pain down his left leg.

He advised that panel that:

• he worked part-time (2 days per week) as a valet driver 

• his positon as a valet driver was stated to be without benefits so he did not expect to have any medical coverage 

• prior to this part time position, he had only worked in a profession, had not worked in a covered industry, and had no knowledge of the WCB. 

• he did not have pain while sitting or driving so did not miss any time from work 

• he had difficulty standing and walking 

• he tried using a non-prescription medication but it did not help 

• after a long weekend, he saw his physician who provided a prescription for medication and a TENS machine; at a later appointment he prescribed physiotherapy 

• he denied any change in his condition until he began physiotherapy and was prescribed a second medication

Employer's Position

The employer did not participate in the hearing; however in a discussion with the WCB adjudicator, the employer representative advised that the employer had no concerns about the delay in the reporting the incident and described the worker as a "stand up guy."

Analysis

The worker is appealing the WCB decision that his claim is not acceptable.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of employment. The panel was able to make this finding.

The panel finds, on a balance of probabilities, that the worker sustained an injury while performing his employment duties on October 3, 2017. Specifically the worker injured his back while lifting and placing a tire on a rim into the back of a vehicle. The panel finds that the mechanism of injury as described is consistent with the injury, as diagnosed, and that the treatment is consistent with the diagnosis.

With respect to the issue of the delay in reporting, the panel does not find the delay in reporting to the employer to be unreasonable in this case. He was injured on October 3, 2017, he reported the accident to his employer on October 13, 2017, as soon as he became aware that he was entitled to submit a claim. The panel accepts the worker's explanation that he did not know that he had WCB coverage in his part-time position. He explained that he was employed in non-covered industries for most of his working career and that with respect to his current position, he understood that he was a part-time worker without any benefits. He had no dealings with or awareness of the WCB and mandatory coverage until this incident.

Regarding the worker's delay in seeking medical attention, the panel notes that the worker sought medical attention on October 11, 2017. The worker explained that he initially believed the back pain would resolve by itself. He advised that he had no pain when sitting or driving, only when standing. When he realized his condition was not improving, he immediately sought medical attention. In the circumstances of this case, the panel does not find this period to be unreasonable.

The panel also accepts the worker's evidence that his condition did not worsen after the injury and improved with the physiotherapy treatment and medication.

The worker's appeal is approved.

Panel Members

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 30th day of August, 2018

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