Decision #87/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on June 18, 2020 and reconvened by videoconference on May 5, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on December 5, 2018, indicating he injured his middle back in a highway accident on December 2, 2018, when "My truck slid into the ditch from the snow. A gust of wind came along and I jackknifed the truck/trailer. I injured my back when this happened." The worker subsequently confirmed that the accident occurred on November 2, 2018, not December 2, 2018.
The worker sought medical attention at a local hospital emergency department on December 5, 2018, and was diagnosed with a back strain. The treatment record from that visit indicated the worker advised the emergency physician he felt well after the accident and walked away uninjured. Massage therapy and physiotherapy were recommended and the worker was told to follow-up with his family physician.
On December 6, 2018, the worker attended his family physician, complaining of severe pain in his mid back area since the November 2, 2018 workplace accident. The family physician noted the worker was not in pain and his gait was normal. The physician further noted the worker had full range of motion in his back, with thoracic and myofascial tenderness. The physician queried a diagnosis of myofascial back ache and recommended the worker do office work for two weeks.
On December 14, 2018, the WCB contacted the worker to discuss his claim. The worker confirmed that he was involved in a motor vehicle accident on November 2, 2018 and that he first sought medical attention on December 5, 2018. The worker further advised the WCB that he had not returned to work since November 2, 2018 and had attended three physiotherapy sessions.
The WCB advised the worker on December 14, 2018 that his claim was not acceptable. The WCB noted that based on a review of the claim information, including the delay in seeking medical attention and no injury having been reported at the hospital, they were unable to establish a causal relationship between the worker's middle back difficulties and his employment.
On January 6, 2019, the worker requested that Review Office reconsider the WCB's decision, and expressed disagreement with the WCB's handling of his claim.
On February 13, 2019, Review Office determined that the worker's claim was not acceptable. Review Office found that they could not establish that the worker sustained an injury as a result of the motor vehicle accident on November 2, 2018. Review Office concluded that the delay in seeking medical care, deferred onset of symptoms, and inconsistencies in the worker's reporting impeded their ability to establish a relationship and continuity between the worker's reported complaints and the workplace incident on November 2, 2018.
On May 8, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged. The hearing commenced by teleconference on June 18, 2020, then was reconvened and continued by videoconference on May 5, 2021.
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.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a "personal injury by accident arising out of and in the course of" employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
The worker was self-represented on the appeal. The worker made a submission at the hearing and responded to questions from the panel.
The worker's position was that he was injured in a major semi-truck accident on November 2, 2018, and his claim should be accepted.
The worker submitted that it is obvious, given he was driving a big, heavy truck, which slid into the ditch and was properly written off, that he would have suffered some kind of impact or injury as a result of that accident. He submitted that this was only common sense.
The worker noted that he sought treatment from three healthcare professionals following his accident, but only one of them provided a diagnosis. The worker submitted that the WCB only considered information from two of the doctors he saw, who reported he was fine after just looking at him, but did not consider anything from the third healthcare professional, a physiotherapist, who reported the worker had severe back pain and diagnosed his injury.
The worker was self-employed.
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 evidence establishes 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.
The panel is satisfied that the evidence establishes that the worker was involved in a highway accident on November 2, 2018, where his truck slid into the ditch. A police report from that date, on file, indicates that the police were called to a semi trailer collision and on arrival found a semi trailer in the median and a tractor unit partially blocking the highway. The worker was identified in the report as the vehicle driver.
The panel is unable to find, however, that the evidence supports that the worker was injured as a result of that accident. The panel acknowledges the worker's position that this was a major accident, as a result of which his truck was written off. The panel notes, however, that the police report following the November 2, 2018 accident indicates that there were "No injuries," a statement was taken from the worker while waiting for a tow truck, and the police then "dropped the semi-driver at [a gas station] to wait for a ride."
Information on file, and as confirmed at the hearing, further indicates that the worker did not seek medical attention until early December 2018. The worker attended a hospital emergency department on December 5, 2018, where it was noted that he reported low back/mid back pain with reference to a semi-truck accident on November 2, 2018. It was also noted, however, that the worker indicated he "Walked out of semi-truck uninjured" and "felt well after accident."
The worker then saw his family physician on December 6, 2018, who noted that the worker was complaining of severe pain in his mid back since a November 2, 2018 truck accident, more with movement. The physician further noted, however, that the worker "looks well, not in pain, gait is fine" and that he had full range of motion in his back, with thoracic and myofascial tenderness.
The panel acknowledges the worker's reference to a third healthcare provider, a physiotherapist from whom he also sought treatment, as support for his claim for the November 2, 2018 accident, and notes that there is no report from the physiotherapist on file. The panel would observe that while the worker reportedly advised the WCB on December 14, 2018 that he had attended three physiotherapy treatments, his evidence at the hearing was that he only attended the initial assessment, as he could not afford to pay for treatment.
The worker filed another claim with the WCB on November 29, 2018 (the "November 29 file") for a "whole back" injury, with an incident date of November 22, 2018. The panel notes that information on the November 29 file does include a medical report from a visit by the worker to a physiotherapist on December 3, 2018, where it was noted that the worker was complaining of back pain and decreased rotation, with forward bending, and was diagnosed with a thoracic spine dysfunction. The panel further notes, however, that it is expressly stated in that report that the worker identified no specific incident. In the circumstances, the panel is unable to relate that diagnosis to the November 2, 2018 incident.
The panel also notes that the description of the incident in the Worker Incident Report in the November 29 file indicates that "A couple of weeks ago I was driving and my back was hurting," that the injury was said to have been caused "From driving." The claim in that file is with respect to a cumulative injury, and there is no reference to an accident or injury having occurred on November 2, 2018, approximately four weeks before that claim was filed.
The panel finds that there were numerous inconsistencies in the evidence and between information on the instant file and information on the November 29 file and is of the view that the worker is a poor historian. The panel questioned the worker at length at the hearing with respect to some of these inconsistencies, including references on the November 29 file to the worker having indicated he continued working through the month of November 2018. The worker categorically stated that references to him driving after November 2, 2018 were wrong, that he could not, and did not, drive at that time as he only owned one truck and trailer and the truck was written off and the trailer was being repaired. The worker said he could not account for what someone else had written.
At the continuation of the hearing on May 5, 2021, the worker referred to an email which he read to the panel as supporting that the trailer was in storage and being repaired from November 13, 2018 to January 9, 2019. The panel acknowledges that evidence. Overall, however, the panel remains unable to account for the many inconsistencies in the evidence and on file.
Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence does not establish that the worker suffered a personal injury by accident arising out of and in the course of his employment, and his claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of July, 2021