Decision #68/20 - 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 April 23, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
In a Worker Incident Report dated March 6, 2019, the worker reported to the WCB that he injured his left lower back on March 1, 2019 in an incident which he described as:
A pellet (sic) of [product] was falling over and I tried to grab it and then they fell over and I had to…lean over to pick them up in awkward position and after I picked them up I was sore. I had to pick up 40 cases. Each case weights (sic) about 25 pounds.
On March 4, 2019, the worker sought treatment from his chiropractor, who noted the worker had significantly restricted range of motion. The worker was diagnosed with a lumbar facet injury and it was recommended that he remain off work. No description of the incident was noted on the chiropractor's report. The worker reported his injury to the employer on March 4, 2019.
On March 7, 2019, a WCB adjudicator discussed the claim with the worker. The adjudicator noted that the worker advised he had some back pain at the beginning of his shift on March 1, 2019, which he felt was normal, as his job duties were physical in nature. He had pain throughout the day but there was not a specific "ow" moment. He took some pain medication and finished his shift. He went to a trade show that evening, where he said he was walking around but felt stiff. When he woke up on March 2, he could barely move. He attended a social event that evening but could barely walk or stand. On March 3, he could not do anything. The worker said he did not really know what had happened. He saw his chiropractor on March 4, 2019, and the chiropractor advised him that this type of injury is from lifting or pushing and pulling, and the worker recalled the incident with the fallen product which had occurred on March 1, 2019.
On March 8, 2019, the WCB received a revised Chiropractor First Report from the worker's assessment on March 4, 2019, which included a description of the workplace incident as "re-piling cases of [product] that fell off pallet/developed LB [low back] pain."
On March 13, 2019, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services stated that based on a review of the medical information on file, the delay in reporting the incident, and the inconsistency regarding when the incident occurred, a relationship between the worker's diagnosed condition and an accident at work had not been established.
On March 14, 2019, the worker requested that Review Office reconsider Compensation Services' decision. On March 18, 2019, Review Office returned the worker's file to Compensation Services for further investigation.
On March 19, 2019, the WCB adjudicator spoke to the worker's supervisor, who advised that the worker called the employer's attendance support service on March 3, 2019 and reported he would be absent from work on March 4, 2019 due to a family emergency. The supervisor also provided the WCB with a transcript of a voicemail message the worker left for him on March 3, 2019 advising he would be away the following day. The supervisor stated that he spoke to the worker on March 4, 2019, and the worker advised that he finished his shift on Friday and felt fine, started to feel back pain on Saturday, could not do anything on Sunday, then attended at his chiropractor on March 4, 2019, where he reported that he "…might have hurt himself on Friday and felt a little tweak."
The adjudicator also spoke to a witness who was present when the incident occurred. The witness advised the adjudicator that he was helping the worker unload the product when "…half the stack fell off and landed on the ground." He said both he and the worker had to pick up the product individually and restack it. When asked if he recalled the worker mentioning any pain or issues when they were picking up or restacking the product, the witness said the worker might have said he "was too old for this," but he did not recall him saying anything specific "…about an ache or pain or that he hurt something."
In addition, the adjudicator spoke to the worker's treating chiropractor, who advised that the worker had contacted him on March 4, 2019 and said his back was sore. The chiropractor told the worker to come in to his office, and the worker arrived on crutches. When the chiropractor asked the worker what had happened, the worker said he didn't know, but after thinking about it, he said he dropped a pallet of product and had to reload it, and by March 3 he could not walk. The chiropractor advised the worker that this was the mode of injury for that type of injury. When asked why his initial report submitted to the WCB did not have a workplace injury described, the chiropractor responded that after speaking to the WCB on March 7, the worker returned to his office and noted there was no description of the incident on the report, and the chiropractor realized he had not entered that information and re-submitted the form.
On March 26, 2019, the adjudicator contacted the worker to discuss his claim further. On March 28, 2019, Compensation Services advised the worker that after further investigation and review of the information obtained, there would be no change to the earlier decision that his claim was not acceptable.
On April 5, 2019, the worker requested that Review Office reconsider Compensation Services' decision. In his submission, the worker noted the workplace incident occurred the morning of March 1, 2019, and that after picking up the product, he felt slight pain and discomfort in his lower back. He completed his day without further incident. His symptoms increased over the weekend, which led him to seek treatment from his chiropractor on March 4, 2019, and his treating chiropractor placed him off work.
On May 2, 2019, Review Office determined that the worker's claim was not acceptable. Review Office found that the evidence on file did not support the worker suffered an injury arising out of his employment. Review Office placed weight on the evidence closest to the March 1, 2019 date. Review Office noted that the worker did not report the injury immediately to his employer. He did not report the injury when he left a voicemail with his supervisor on March 3, 2019 to advise he would be absent the following day, or when he called into the employer's attendance support service on March 3, 2019 and advised he was taking a personal day on March 4, 2019. Review Office further found that the worker was not initially aware of how he hurt his back, and the witness who was with him at the time of the incident was not aware that the worker injured his back. Review Office therefore found the worker's claim was not acceptable.
On May 20, 2019, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged, and proceeded by way of teleconference on April 23, 2019.
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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an 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 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, Arising Out of and in the Course of Employment, states, in part that:
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 worker was represented by a worker advisor, who provided a written submission in advance of the hearing. The worker's representative made a presentation at the hearing, and the worker responded to questions from his representative and from the panel.
The worker's position was that his claim is acceptable, as the evidence supports a workplace accident occurred on March 1, 2019 and is responsible for his lower back injury.
The worker's representative submitted that the evidence supports that the worker reported the incident to his employer in a timely manner. In response to questions from his representative, the worker explained that he followed the normal reporting procedure by trying to contact his supervisor on March 3. When he was unable to reach his supervisor, he called the employer's attendance support service to let them know he would not be reporting for his shift the next day. The worker explained that he did not report his injury because he had not yet spoken to his supervisor or seen a doctor, and had no real information to provide. The representative noted that the employer's report confirms that the worker officially reported his injury to the employer on March 4, 2019, being the next working day after the incident.
The worker's representative further submitted that there was no delay in seeking medical attention. The worker saw his chiropractor early in the morning on March 4, which was the chiropractic centre's next business day following the March 1 incident. The worker told his chiropractor about the workplace accident at that time. While the description of the incident was initially missing from the chiropractor's first report, the medical information in the amended report confirmed the mechanism of injury, that the worker developed left-sided low back pain, and that he was diagnosed with a lumbar facet injury. In a conversation with the WCB adjudicator, the chiropractor confirmed that he attended the worker on March 4, 2019 and asked him what happened, and that the worker did not know at first, but after thinking about it, described dropping the product and having to reload it.
In conclusion, the worker's representative submitted that the reported mechanism of injury was consistent in all reports to the employer, the worker's healthcare provider and the WCB, and the witness confirmed that the incident occurred. The mechanism of injury was consistent with the worker's injury, and there was no evidence to support that the worker's left lower back difficulties arose from any other incident than the workplace accident. The representative submitted that the worker's appeal should therefore be allowed and his claim accepted.
The employer was represented by an advocate, who provided a submission in advance of the hearing and made a presentation to the panel. The employer's position was that the evidence did not support the worker suffered an injury as the result of a workplace accident, and his appeal should be dismissed.
The employer's advocate submitted that there is no clear identifiable event or accident in this case. Rather, the worker looked back to work he had done days earlier and speculated that this must have been the cause of his pain. The advocate submitted that the worker candidly advised the adjudicator on March 7, 2019 that he really did not know the origin of his pain until he saw the chiropractor. The advocate submitted that the March 19, 2019 conversation between the adjudicator and the chiropractor clearly showed that the worker and the chiropractor reached this hypothesis together, with little evidence to support it. The advocate submitted that hindsight and speculation are not a sufficient basis for accepting a claim.
The employer's advocate submitted that there is no more evidence that the worker injured his back at work than that his back pain was due to walking around at a trade show that same evening. The advocate argued that the worker would not have been able to walk around at the trade show if he had sustained an injury at work which was severe enough to have resulted in him being unable to do anything and being on crutches when he saw the chiropractor on March 4, 2019.
The employer's advocate noted that the worker told the adjudicator on March 7, 2019 that he woke up on March 2 and could barely walk. The advocate commented that if the worker had been so severely injured that he could barely stand or walk, he could have attended a walk-in clinic or emergency room, but did not do so.
The employer's advocate noted that the record of the worker's phone call to the attendance support line on March 3, 2019 is sufficient in itself to confirm that the claim is not acceptable. The recording of that call, which was provided in advance of the hearing, showed that when the worker called the attendance support line, he was pointedly asked if the absence was due to a work injury and he said no. The advocate also noted that the worker made no mention of a work injury in a voicemail message which the worker left for his supervisor on March 3, 2019, a recording of which had been provided previously.
The issue before the panel is claim acceptability. 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 his employment. The panel is unable to make that finding, for the reasons that follow.
In arriving at our decision, the panel places weight on the memo of the worker's initial conversation with the adjudicator on March 7, 2019 where the worker advised that the pain started at the beginning of his shift on March 1, 2019, that he had some back pain throughout the day, and that when asked if there was a specific "ow" moment, he said no.
The panel notes that the witness who was present at the time of the incident and helped the worker pick up the product advised the adjudicator that he did not recall the worker having said anything specific about an ache or pain or that he hurt anything. The worker confirmed at the hearing that he never said anything to the witness; that he "never said to him at any point that I was injured."
The panel questioned the worker at length at the hearing with respect to the mechanism of injury. The worker indicated that the incident would have occurred before 11:00 a.m. that day. When asked at what point he experienced discomfort, the worker indicated that "the whole thing, anytime you bend over, like to get [product] off the ground is uncomfortable to start with…It wasn’t like an intense pain…it was just uncomfortable." The worker stated that when he ended his shift, at 4:30, "I was fine, just I had a little uncomfortableness." He went home, had supper and went to the trade show that evening.
While the evidence indicates that the pain became worse over the next few days, the panel is unable to relate the worker's pain or the worsening of his pain to the March 1, 2019 incident based on the evidence which is before us.
In his evidence at the hearing, the worker acknowledged that he had a history of back pain, but noted that this was different. The worker indicated that:
In the past, before this injury, my back pains were pretty severe…This last back injury that I had on March 1st…from that incident, was the most pain I have ever felt in my life. March 1st, not really much pain, uncomfortable. Saturday, uncomfortable during the day. It was at night when I was at the [event] where I really felt the pain. All night I couldn’t sleep. Sunday it was the most pain I’ve ever felt, for the Sunday, Monday, Tuesday, Wednesday it started to get better, Thursday. I have never felt pain like that in my whole life. I couldn’t stand. I couldn’t sit. I couldn’t walk. The only thing I could basically do is lie down.
The panel notes that information on file indicates that the worker initially told the WCB he did not know what caused his injury. The panel places weight on the worker's advice to the adjudicator, as documented in the March 7, 2019 memo, that on March 4:
…he didn’t really know what had happened. He went to the chiropractor and the doctor is the one that told him that this type of injury is from lifting or pushing and pulling. He knew Friday that he had an incident at the [place] and had tried to catch cases that had fallen. He said he knows that is where the incident happened, but couldn't pin point it.
It didn't hit him how it had happened, until the chiro told him it was from the lifting, pushing and pulling.
The panel also relies on the March 19, 2019 memo of the adjudicator's conversation with the chiropractor, in which the chiropractor clarified and confirmed that the worker did not know the mechanism of injury, as follows:
…[the chiropractor] asked him what happened and he said that he didn't know what he did. He thought about it and thought about it and then and he said that he dropped a pallet of [product] and had to load them back on and by Sunday he couldn't walk.
[The chiropractor] said to him, that's what it was, that's what you did. It's the mode of injury for that type of thing he said.
In the circumstances, the panel finds that the worker's position that his lower back injury is causally related to the March 1, 2019 incident is speculative and is not supported by the evidence.
Finally, the panel places significant weight on the report and recording of the worker's phone call to the employer's attendance support line on March 3, 2019. The panel notes that in that call, the worker stated he was calling in a personal day for tomorrow. The worker was specifically asked whether this was for a workplace illness or workplace incident or injury, and said no. He indicated that it was "just a personal emergency," and more specifically a family emergency. The worker was further asked towards the end of the call if there were any incidents he wished to report at that time, and his response was "No, thank you."
While the worker explained at the hearing that he did not mention the incident in his call to the attendance support service because wanted to speak to his supervisor first, had not seen a doctor and "really had no information to tell them," the panel is unable to accord any weight to that explanation, particularly given the severity of the pain the worker indicated he was experiencing by that time.
Based on the foregoing, the panel finds, 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. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of June, 2020