Decision #19/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on October 8, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On November 9, 2018, the worker filed a Worker Incident Report with the WCB reporting injury from an incident at work on September 5, 2017. The worker described trying to lift a heavy object at work when they "…felt a sound of dislocation on my waist and the pain started immediately." The employer submitted an Employer's Accident Report to the WCB on November 13, 2018 in which they noted the worker did not work on September 5, 2017 and only worked a few days until May 1, 2018, their last day worked. The employer further noted the worker had been into their office "a few times" since May 1, 2018 and called the employer asking if there was any work available but at no time did the worker mention they suffered an injury while working.
The WCB discussed the claim with the worker on November 15, 2018. At that time, the worker confirmed they did not report the injury to the employer until November 1, 2018 and further, advised they were unable to work since the workplace accident and had just started physiotherapy. The worker advised they sought medical treatment from their family physician approximately one month after the workplace accident.
On November 16, 2018, the WCB advised the worker that the claim was not acceptable as the worker had delayed in reporting their injury to the WCB and the employer, and in seeking medical treatment, so that the WCB could not establish an accident occurred.
On November 24, 2018, the WCB received a copy of a June 12, 2018 x-ray of the worker's lumbosacral spine which indicated "No significant bone or joint change is shown. Disc spaces are of normal width." The WCB also received a Doctor First Report from the treating family physician noting a diagnosis of chronic back pain after the worker reported lower back pain, which started at work in 2017 and recommending light duties.
On December 4, 2018, the worker requested reconsideration of the WCB's decision to Review Office. In their submission, the worker noted they were not aware how a worker would report an injury but did seek medical treatment, including physiotherapy, for the injury. On December 7, 2018, the WCB received a Physiotherapist Initial Assessment from an assessment on September 18, 2018. The worker reported to the physiotherapist an injury to their back as the result of lifting a heavy bin at work, some 8 months before the date of assessment, and that they had to walk bent-forward for several days afterwards, with pain on bending forward or walking for more than 15 minutes. The physiotherapist diagnosed lumbosacral strain - disc irritation and noted there were no light duties available for the worker to perform.
On January 28, 2019, the employer provided a response to the worker's request for reconsideration noting the worker did not work on the date of the reported workplace accident but did work on September 6, 2017. Further, the employer noted that the worker did not work at the worksite of the reported injury until May 1, 2018. The employer advised the WCB from September 5, 2017 to September 20, 2017, the worker worked four shifts and attended at their offices on several occasions to request further work but did not mention a workplace accident or injury. The employer further advised the worker did not work between September 20, 2017 and May 1, 2018, and after that time, did not contact the employer until approximately November 5, 2018, which was the first time the worker reported an accident or injury to the employer.
Review Office determined on February 14, 2019 that the worker's claim was not acceptable. Review Office could not establish that the worker sustained an accident arising out of or in the course of her job duties, noting the worker did not report an accident or injury to the employer for more than 14 months and there was no evidence to support the worker sought medical treatment in or around October 2017, as reported to the employer.
On February 14, 2019, the worker submitted additional information to Review Office, and on February 19, 2019, Review Office advised the information was reviewed but there would be no change to the February 14, 2019 decision.
The worker filed an appeal with the Appeal Commission on January 21, 2020. A teleconference hearing was arranged for October 8, 2020. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. When the requested information was later received, it was forwarded to the interested parties for comment. On February 9, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors.
Section 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. The Act defines “accident” in s 1(1) 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.
The worker appeared in the appeal hearing on their own behalf, with the assistance of a language interpreter.
The worker’s position is that the claim should be accepted because they injured their low back at work and in the course of their job duties on May 1, 2018. The worker explained that when they first made the claim in November 2018 they could not remember exactly when the injury occurred and stated it was about a year earlier, but they now could confirm that it occurred on May 1, 2018, while working at a new jobsite setting up equipment.
The worker stated that on the date of the incident, there was no site supervisor present, but acknowledged that a representative of the employer provided instruction on arrival and that there were other people present who also provided instruction through the shift. The worker indicated that they were one of five people working together to move a large heavy box some 50 feet, and as they were doing so, the worker felt pain in their back at the waist level. This occurred near the end of the shift. The worker believes that they told the co-workers that they hurt themself or cried out in pain. The worker did not advise a supervisor that they were hurt and at the end of the shift, went home by taxi. The worker did not return to that worksite but did visit the employer’s office sometime later to return some items or pick up their pay. The worker described to the panel that they broke their back and were very sick after this occurred.
The worker stated that they first treated their back pain at home with pain reliever medication, and then saw their family doctor at some time in June 2018 and attended for an x-ray approximately one week later. The worker could not recall whether the doctor asked how the injury occurred and confirmed that they had been seeing this physician since 2014. The worker stated that they also sought physiotherapy treatment for the injury.
On questioning by members of the appeal panel, the worker confirmed they attended the employer’s office sometime after May 1, 2018, but did not tell anyone there about the injury. The worker explained that as a newcomer to Canada, they were not aware of the processes for reporting workplace injury. When they later learned that the injury should have been reported and advised the employer, the worker stated that their manager was hostile toward them.
The worker could not recall whether they contacted the employer after May 2018 looking for more work, but did confirm they only returned to working, with another employer, at some point in 2019.
In sum, the worker’s position is that the claim should be accepted because they injured their back at work.
The employer appeared in the appeal hearing represented by their manager who provided an oral submission on behalf of the employer and offered testimony through answers to questions posed by members of the appeal panel.
The employer’s position is that the evidence does not support the worker’s claim that they were injured in an accident at work and therefore the claim should not be accepted.
The employer’s representative confirmed that the employer first learned of the worker’s injury claim early in November 2018 at which time the claim was stated to be in respect of an injury that occurred in September 2017.
The employer’s representative confirmed the worker was employed from July 2017 through to May 2018, but did not work from September 19, 2017, until May 1, 2018. During their employment, the worker was able to communicate with the employer and the employer noted the worker’s language skills to be good enough to get work and follow instructions without the need for translation assistance or support. The employer confirmed the worker was at work on May 1, 2018, at the site where the worker stated the injury occurred, and that there were onsite supervisors who would have noticed if the worker injured themself causing a lot of pain, but there was no report of any incident relating to the worker. The employer also indicated that the worker would have had to sign out at the site or get their time sheet signed by a site supervisor. The employer’s representative indicated that attempts were made to follow up with other employees present as to what occurred, but without success.
The employer’s representative confirmed that the worker attended the employer’s offices on May 4, 2018, to return safety equipment but that the worker did not report any accident or injury at that time.
In sum, the employer’s position is that the evidence does not support the worker’s claim that they injured their back as a result of an accident at work on May 1, 2018, and therefore the claim should not be accepted.
The issue on appeal is whether the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker was injured as a result of an accident arising out of and in the course of their employment. On the evidence before us, the panel was not able to make such a finding as outlined in the reasons that follow.
The panel considered whether there is evidence that the worker injured themself as a result of an accident that happened in the course of their employment and arising out of that employment.
The worker testified to their belief that the injury occurred while carrying a heavy object over a distance, together with other workers, on May 1, 2018. The worker suggested that they were carrying more than their share of the load and when they set the object down, they felt significant pain in their back at the waist level.
The panel notes that although the WCB claim was initially made with respect to an incident in September 2017, the worker explained that they were not sure of the date when the claim was made and gave the wrong information to the WCB. As noted by the employer in their evidence and in the information provided to the WCB, the worker was not working at the site in question on the September date and there was no work at that time at the job site described by the worker where the injury was reported to have occurred; however, the worker was employed at that job site on May 1, 2018 as they testified. Given the worker’s need for language interpretation in the hearing, the panel accepts that there may have been some difficulties or miscommunication in the WCB intake process and accepts that the event that led to the worker’s claim took place on May 1, 2018.
The medical evidence before the panel indicates that the worker had reported low back pain prior to May 2018. The worker’s treating family physician reported to the WCB on November 24, 2018 with a diagnosis of chronic back pain that “started at work in 2017”. In the physician’s June 11, 2018 chart note, the worker was assessed with chronic low back pain based on their report of back pain for some two months previous, causing the worker difficulty in standing and lying down. The x-ray imaging taken on June 12, 2018 noted “shallow lumbar scoliosis to the right” but otherwise normal vertebral height and alignment and normal disc spaces. On follow up with the family physician on June 25, 2018, the physician assessed the worker with scoliosis, recommended massage and physiotherapy and to avoid heavy lifting. At that time, the worker reported having backache when sitting and walking, as well as on stairs for 6 months. When the worker first sought physiotherapy in relation to their low back symptoms on September 18, 2018, they reported to the physiotherapist an injury as the result of lifting a heavy bin at work, some 8 months prior to the date of assessment, which would have been early in 2018. The physiotherapist at that time diagnosed lumbosacral strain and disc irritation based on their assessment.
Both the employer and the worker confirmed in the hearing that there was no report of this injury to the employer or any representative of the employer on May 1, 2018. The worker recalled visiting the employer’s office a few days later but did not report injury at that time either. The medical evidence obtained by the panel confirms that although the worker sought medical attention for back pain on June 11, 2018, they did not report a workplace injury at that time either.
The worker testified that they were not aware of the requirement to report injury to the WCB or to the employer until a friend suggested they make a WCB claim. By the time of the physiotherapy assessment in September 2018, the worker did relate the injury to an incident at work early in 2018. The employer confirmed the first notice they received of the claim was in November 2018 when the WCB contacted them.
The worker’s delay in reporting injury makes investigation of the claim significantly more challenging, both for the employer and the WCB. Here the employer indicates it made some efforts to contact individuals working with the worker, but without success. This delay is further complicated in this case by the worker’s confusion as to when the injury occurred.
As noted above, for the claim to be accepted, the panel must find both that there was an accident as defined by the Act and an injury to the worker resulting from that accident. The evidence here does not support a finding that there was an accident at work, nor that the worker was injured as a result. The medical reporting rather supports a finding that the worker’s back issues are long-standing and more likely than not pre-date the incident the worker described as taking place on May 1, 2018.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is not able to confirm that the worker sustained an injury at work as a result of an accident on May 1, 2018. For this reason, we determine the claim is not acceptable and the worker’s appeal is denied.
K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of February, 2022