Decision #58/19 - 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 February 4, 2019 to consider the employer's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
On a Worker Incident Report, filed with the WCB on May 11, 2018, the worker reported injuring his lower back, left side, in an incident at work on May 8, 2018. He described the incident as:
I was stripping the forms off the concrete wall that was poured.
I was hauling 2x4 (sic) up a dirt ramp. I was carrying 4 at a time. The dirt ramp after a while becomes slippery, I was walking upwards and I slipped and fell to the ground, but did sort of catch myself. I had the 2x4's on my left shoulder and then by catching myself with my right leg, I hyperextended my legs and I felt a pop in my lower back. There was a stabbing sharp pain.
I tried to get up, but I had to kneel down for a good minute.
I tried to shake it off, but I saw my supervisor and told him I was hurt and leaving early to go see my chiropractor.
I tried to work a little longer just doing light duties, but was unable to continue.
The worker was seen at his chiropractor's office on May 8, 2018. The worker advised the chiropractor that he had a low back ache, that it was hard for him to sit for long periods and that it was hard for him to put his full weight on his left leg, after he slipped on a slope while carrying an item. The chiropractor diagnosed the worker with a strain/sprain to his low back and a possible injury to his L4 disc and recommended the worker remain off work until May 18, 2018.
On May 9, 2018, the worker attended at a walk-in clinic. He reported to the treating physician that he "Hurt back at work yesterday." It was further reported that he was "Unable to get out of bed this morning." and that he had "…burning stabbing pain. Sitting straight worse; better with leaning forward." The physician diagnosed the worker with a back injury and referred the worker for an x-ray. The x-ray conducted on May 9, 2018 noted: "Lumbar vertebral body height and alignment are maintained. Intervertebral disc height is preserved. The pedicles are intact. The facet joints are aligned."
The WCB accepted the worker's claim on May 22, 2018 and the payment of wage loss and other benefits commenced. The employer was advised on May 23, 2018 that the worker's claim had been accepted by the WCB.
At a Physiotherapy Initial Assessment dated June 5, 2018, the worker reported to the physiotherapist that the pain was mainly in his left pelvic, sacroiliac area and that he couldn't sit for long periods of time. The physiotherapist questioned whether the worker had a sacroiliac sprain and after speaking to the worker's WCB case manager, recommended restrictions for the worker to return to work of ability with the change positions as needed, can lift/push/pull up to ten pounds. The employer and the worker were advised of the restrictions on June 6, 2018. The employer advised they could accommodate the worker and the worker returned to work on June 6, 2018. On the same date, the worker advised the employer and the WCB that he could not continue his job duties after approximately an hour due to ongoing symptoms. On June 8, 2018, the worker was advised by the WCB that as it was his choice not to return to work, within the suitable modified duties arranged by his employer, he was not entitled to wage loss benefits effective June 6, 2018.
The employer requested reconsideration of the WCB's May 23, 2018 decision to accept the worker's claim to Review Office on June 12, 2018. The employer submitted that it was their belief that the worker's injury had not occurred at work as he had previously admitted to sustaining an injury to his back two weeks prior to the workplace incident. It was further noted that the worker was uncooperative with the employer in discussing their modified work program and delayed in having the modified work program forms completed by his treating healthcare providers.
On July 30, 2018, Review Office determined that the worker's claim was acceptable. Review Office found that the worker's reporting that he had to stop working after the workplace accident, his reported difficulty in walking and sitting and his need for a cane, supported that the worker's level of function changed after May 8, 2018 and that a workplace incident occurred. Review Office further noted that the worker consistently described the workplace incident to all of his healthcare providers, confirming that the worker sustained an injury on May 8, 2018.
The employer filed an appeal with the Appeal Commission on September 10, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 16, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
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.
"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.
WCB Policy 44.05 addresses Arising Out of and in the Course of Employment states:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment - that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.
The employer was represented by two of its owners, one referred to as the manager, and the other referred to as the foreman. The foreman was the acting foreman in charge of the project at which the worker was employed.
The manager explained that the employer was working on a large project in a town away from its place of business. It was a year-long project. He explained that the employer's practice is to hire local workers which saves on some costs.
He said the worker was hired and started on, approximately, March 12, 2018. The employer provided their typical orientation and training before they let anybody work on their projects.
The manager advised that:
April 23rd, he reported that he hurt his back on the weekend, and after that, between April 23rd and May 8th, he was doing, taking some time off to see a chiropractor for, not a work-related incident. On May 8th, he had told [foreman] that he had slipped, there was, one of the areas on the job had a dirt stairs, so basically, it was a place in a bank where we cut the dirt, so rather than climbing up the bank, it’s basically like actual steps.
It was an area that we, it was a high-traffic area where lots of trades were using. He, basically, he came to [foreman] and said that he had slipped and tweaked his back when he was walking down those steps. And there was a lot of people, our trade there, there was a bunch of different trades, quite a bit of people, it was a high traffic area. Nobody saw this, so --
The manager explained this was the only access to the site. He estimated there would be 20 plus others using that access. The foreman added that:
… at the time was we were stripping out the form work off the basement, so it all had to come out of the hole because we were done with it. So there was probably, like, of our 15 guys, or how many we had there at the time, about five to six of them were all doing the exact same thing, and it’s not a very long distance from where the steps were to where we were stripping.
And we were constantly carrying up at the same pace, and no one seen him fall or do anything that he said that he stopped, felt pain or anything like that, until he came to me and mentioned.
The manager explained that there was no noticeable change in the worker's actions, but next day he came back with a note from the chiropractor that said nine days off for rest. In text messages with the foreman, the worker advised that his injury was not work related. However, on May 14th, the worker informed the foreman that he would not work again and on May 15th, the WCB contacted the employer about the incident.
The manager advised that the worker did not follow the employer's practice which was to contact the employer's office and participate in a modified work program. The worker was aware of this requirement as it was part of the orientation. He said that the worker would not take the modified work forms, and he would not co-operate with the employer. He did finally pick up the forms on May 22nd.
He said that:
And basically, I think that’s our biggest point in this, is he, you know, we tried very hard to accommodate the modified work, and he wasn’t co-operating with it.
The manager noted that when the doctors finally said he’s good to come back to work, he came in for an hour and then he quit.
Regarding the transcript of cell phone messages between the worker and foreman, the foreman explained that these were screen shots that were then typed out.
The manager acknowledged that the firm has concerns about the worker's credibility and stated:
That’s what our biggest concern all along, like, we actually have a video on his phone of him lying in his driveway, buffing his car, while he’s off on this injury…
The foreman described the area where the worker said he was injured. He advised that the walkway was about six feet below actual grade and that they cut steps in the ground, which was clay, to make it easier to walk out of the site. He said it was not steep. The foreman acknowledged that the 2 x 4s which the worker was carrying were between ten and sixteen feet long.
The foreman acknowledged that the worker told him he tweaked his back but he thought that was a reference to a prior injury. He said that he could not tell if the worker was injured because "he's a very slow-moving guy". He said that none of the other workers witnessed the incident.
In his closing remarks, the manager stated:
… For me, I think the biggest thing would be just the likelihood of somebody slipping in that area, and nobody seeing with the amount of people that are around is, to me, that just raises, that’s where my biggest concern is. So there’s six guys taking that path and hauling in and out, they’re all kind of working together, and that’s just out of the dozen guys that we had there on site…
The worker did not participate in the hearing.
The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment on My 8, 2018. In order to do so, the panel must find that the worker's reported back injury is not causally related to his workplace accident of May 8, 2018.
Based on our review of the information on file and as presented at the hearing, the panel finds, on a balance of probabilities, that the worker suffered an injury arising out of and in the course of his employment on May 8, 2018.
The panel relies upon the following evidence in support of this finding:
• the worker was working on the date of the alleged injury. He contacted the WCB and reported slipping while carrying lumber on his left shoulder and experiencing a "pop" in his lower back.
• the worker sought medical attention from a chiropractor, a physician, and a physiotherapist after the incident.
• the information from the treating professionals is consistent with the worker's report of an injury at work.
Regarding the text message that the worker provided to the foreman on April 23, 2018 advising that he injured his back on the weekend prior to April 23, and required medical attention, this does not negate the later evidence that he also injured himself at work May 8, 2018.
The panel also considered the video evidence provided by the employer which shows the worker working on a vehicle. The panel does not find this information to be inconsistent with the worker having injured his back as reported.
The panel also sought information on a prior injury claim, from September 2016, which the worker had filed, and was accepted by the WCB. The panel considered the medical information on this claim and finds that the medical information is not inconsistent with the new accident, nor does it support a finding that the worker's May, 2018 injury was a continuation of the 2016 injury.
As noted above, based on the evidence on file and additional evidence obtained by the panel, the panel finds, on a balance of probabilities, that the worker sustained a workplace injury on May 8, 2018. The employer's appeal is dismissed.
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of May, 2019