Decision #127/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A teleconference hearing was held on November 5, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The WCB received a Doctor’s First Report on December 26, 2019 indicating the worker sustained a concussion after hitting her head at work on December 13, 2019. The treating physician noted the worker reported a headache, nausea, dizziness and photophobia but noted the examination was normal. A CT scan was conducted and was found to be normal. The physician referred the worker to a sports medicine clinic.
The Employer’s Incident Report was provided to the WCB on December 27, 2019 indicating the worker injured her head in an incident at work on December 13, 2019 and reported it to the employer on December 24, 2019. The worker reported that while she was cleaning, she hit her head and since that time, she suffered from headaches that have increased in severity. The worker filed a Worker Incident Report with the WCB on December 31, 2019 noting that her headaches started getting worse after approximately a week, which is when she sought medical treatment and reported the incident to her employer.
On January 10, 2020, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and advised that she continued working until her headaches became severe and she first sought treatment on December 24, 2019. She confirmed she did not lose consciousness after she hit her head, she remembers everything about the incident and she drove herself home after work, about a one-hour commute.
The WCB advised the worker on January 13, 2020 it could not establish she sustained an injury from an accident arising out of or in the course of her employment and as such, her claim was not acceptable.
The worker requested reconsideration of the WCB’s decision to Review Office on January 24, 2020. The worker noted in her submission, her treating healthcare provider diagnosed her with a concussion, which happened as a result of an injury at work. A Physiotherapy Initial Assessment was done on January 14, 2020. The physiotherapist diagnosed the worker with a possible cervical spine strain and a mild traumatic brain injury.
Review Office found the worker’s claim was not acceptable on March 27, 2020. Review Office was unable to establish an accident occurred arising out of or in the course of the worker’s employment due to the worker’s delay in reporting the accident to the employer for 11 days and the fact she did not seek medical treatment until two days after that. Review Office further found a slow progression to the worker’s symptoms for 13 days could not be related to a head injury 13 days prior.
The worker filed an appeal with the Appeal Commission on July 2, 2020. A teleconference hearing was arranged for November 5, 2020.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes any event arising out of and in the course of employment as well as any “...thing that is done and the doing of which arises out of, and in the course of, employment....” When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.
The worker appeared in the hearing on her own behalf and outlined to the panel why she believes her appeal should be allowed and the claim accepted. The worker also provided testimony in answer to questions posed to her by panel members.
The worker’s position is that the claim should be acceptable because she was injured at and in the course of her employment on December 13, 2019. As a result of the injury, she required medical attention and missed time at work, resulting in a loss of income.
The worker described her job as cleaning apartment-style residences. She works alone and her day begins at 8:00 a.m. On the day in question, the injury occurred around 11:00 a.m. as she was bent down, cleaning on the floor behind a toilet. When she got up from that position, she bumped her head on a wall-mounted stainless steel toilet roll holder. The point of impact was on the left side of her head, just over her ear. She recalls telling a colleague about the injury on her lunch break that day.
The worker indicated to the panel that the injury happened on a Friday, and she made an appointment to see her treating chiropractor on Monday, December 16, 2019. She recalls telling her manager about the injury a few days later. She indicated that initially she did not think to tell her employer about the incident and did not know what, if anything, she was to do about the injury.
The worker described to the panel that sometime after the injury she began to experience “really bad headaches”, dizziness and nausea. As a result, she went to the local hospital emergency department on December 26, 2019 for treatment and returned again on January 1, 2020 when her symptoms continued.
The worker confirmed to the panel that she missed a number of weeks of work as a result of the injury and as a result of seeking treatment for the injury, including medical, chiropractic and physiotherapy. She noted that she still suffers occasional headache with nausea but no longer any dizziness.
The worker’s position, in sum, is that she injured herself at work while doing her job and that her claim should therefore be accepted.
The employer did not participate in the appeal.
The issue for determination on this claim is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker was injured because of an accident that occurred arising out of and in the course of her employment. The panel was able to make such a finding, for the reasons that follow.
The evidence of the worker as to how she injured herself, banging her head while getting up from a floor in the course of her work is consistent with the information provided in the weeks following the injury to the employer, to the WCB, to the emergency room triage nurse and to the treating physiotherapist and chiropractor.
The panel accepts that the injury to the worker occurred as she described it to the panel and also accepts the worker’s evidence that she told a colleague about the injury shortly after it happened and notes that she told her employer about the injury on December 24, 2019 when her symptoms worsened.
The panel noted as well that the worker sought treatment from her chiropractor within days of the injury, as is confirmed in a WCB file note of June 8, 2020 detailing a phone call from the worker’s chiropractor to the WCB. That memo outlines that the chiropractor “...said she bumped her head in the toilet at work and came to see him” and that he saw her on December 16, 2019.
The injury prompted the worker to seek emergency medical treatment due to ongoing headache, dizziness and nausea on December 26, 2019 and again on January 1, 2020. As a result of the information provided to the treating professionals, a CT scan was conducted, which did not reveal any abnormalities. She was diagnosed with concussion and referred to a sports medicine clinic where, on January 8, 2020, the diagnostic impression was of subacute concussion. She was referred to physiotherapy as well and the initial assessment report of January 14, 2020 records that the worker continued to complain of symptoms including headache, neck pain, dizziness, nausea, and sleep disturbance.
The panel noted that the WCB decided on January 10, 2020 that the claim was not acceptable with little if any investigation of the circumstances of the claim, other than discussion with the worker on the same date. By that date, the worker had attended for assessment at the sports medicine clinic but there was no report provided to WCB before the decision was reached although the WCB was aware of the referral. Further, there is no evidence in the file of any calls to the employer and it does not appear the worker was asked if she told any colleagues about the incident at the time.
The panel is satisfied on the basis of the evidence before us, and on the standard of a balance of probabilities that the worker was injured as a result of an accident that arose out of and in the course of her employment on December 13, 2019. The claim is therefore acceptable, and the worker’s appeal is allowed.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of December, 2020