Decision #98/22 - 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 July 14, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The employer filed an Employer's Accident Report with the WCB on April 26, 2021, reporting an injury to the worker's right upper arm that occurred at work on April 20, 2021 and was reported to them on April 22, 2021. The employer described:
He claims a torn right bicep.
He and the boss [name] were carrying a pallet down the staircase and the pallet dropped. He felt a strain in his right bicep. He said they were in tight quarters, standing between a glass window and tree branches… [The worker] worked the whole day. He never said or mentioned anything about being in pain or having a sore arm.
He called in sick the following day April 21 saying he was sick. He came into work on April 22 to fill a green card, saying he would be seeking medical because he suspected he torn (sic) his bicep.
The employer noted the worker had been provided with a doctor's note to be off work until May 20, 2021 and they did not have modified duties available. The employer also noted concerns with the worker's claim, including that they had been made aware the worker was seen hauling water and driving truck for someone else since the date of accident, using both arms, and that it seemed odd the worker did not say anything to the boss if the injury occurred in front of him.
The worker provided the WCB with a Worker Incident Report on April 27, 2021, reporting:
We (myself and boss, [name]) were at a jobsite in [location], lifting decking pallets carrying one down stairs on a lady's dock. They were big pallets so me and [name] (boss) were lifting & carrying them together. As we were going down the stairway there was (sic) tree branches above the stairway and it was a very awkward situation. I think we dropped it a couple of times while carrying it. I felt a muscle pull/strain in my right bicep. It happened between 11:00/11:30 a.m. I didn't think it was too bad. I continued working the rest of the day. [Name] was aware I was injured; he was there when it happened.
When I went home I looked at it and the muscle had balled up and black and blue. …
April 21/21 I was in so much pain I wasn't going anywhere. I phoned [name]. He said to see a doctor…
April 22/21 I saw a doctor at [hospital].
The WCB received a copy of the April 22, 2021 hospital report, which noted the worker reported an injury to his right biceps muscle while lifting heavy equipment at work two days previously, with pain and bruising, loss of strength and difficulty using his arm to full capacity. The treating physician recorded bruising at the biceps muscle and tendon insertion site and localized tenderness, and diagnosed the worker with a biceps muscle tear. The physician recommended the worker remain off work for four weeks.
At an appointment with his family physician on April 28, 2021, the worker reported a sudden onset of pain, with a "…bluish discoloration of the arm…" after "carrying decking pallets, 60-70 lbs." The physician recorded no residual swelling, with a minor residual bruise on the arm, tenderness on palpation, largely normal range of motion, and mild limitation to extension and flexion. The area of injury was noted to be "rt (right) upper arm, biceps rupture."
On April 29, 2021, the WCB spoke with the worker's supervisor (boss), who confirmed he was working with the worker on April 20, 2021 and was carrying pallets with the worker, down approximately ten steps. The supervisor noted they were working in an area with glass panels so he and the worker were careful with handling the pallets. The supervisor advised that the pallet did not drop at any point, that the worker did not mention an arm injury to him, and that he continued to perform his regular duties for his full shift. The supervisor noted the worker called in sick the next day but did not mention any difficulty with his arm or why he would not be in. The supervisor further noted the worker had previously shown him bruising in that area on his arm but had not reported an incident or stopped working because of it.
The WCB contacted the worker on May 4, 2021 to discuss the claim. The worker confirmed the mechanism of injury of carrying pallets with his supervisor and noted the pallet slipped out of his hands and hit the stairs twice, but he could not recall if his supervisor had dropped his end or not. The worker advised that when he dropped his end of the pallet the first time, he felt "…like a ripped muscle in bicep of right arm but said nothing." The worker confirmed he continued with his regular duties for the rest of his shift, and noted that when he got home that day, his bicep was black and there was a noticeable crease in the middle of it. The worker noted he did not mention anything to his supervisor at the time of the incident with respect to being injured, but did complain that "…the lift was awkward and difficult." The worker advised he took pain medication and rested on April 21, 2021, then sought medical treatment on April 22, 2021. The worker indicated his arm was improving, the bruising was gone and he was able to move the arm around. When asked whether he had spoken to the employer about modified duties, the worker said he had spoken to his supervisor and was told there was no work for him unless he could lift at least 50 pounds.
On May 11, 2021, the WCB advised the worker that they had determined his claim was not acceptable. The WCB advised that given the worker had not reported an incident on April 20 or April 21, 2021 and was able to complete his regular duties on the day of the incident, they were unable to establish that he suffered an accident arising out of and in the course of his employment.
On September 20, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted he had reported his injury to the employer when it occurred, and on April 22 and April 28, 2021, when he attended for medical treatment and advised the treating physicians that his injury was work-related. The worker indicated he had consistently reported his injury to all parties involved, including the date of accident and the mechanism of injury, and as such, he believed his claim should be accepted.
On September 29, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found the worker's reported functioning was inconsistent with the onset of an acute biceps tear, where there would be sharp pain, visual deformity/bruising in the arm, and immediate change in function or lack of strength. Review Office further found the worker delayed in reporting the injury to the employer, which made it difficult to establish an accident occurred arising out of or in the course of his employment. Review Office found there were also delays in seeking medical attention and in filing the WCB claim. Review Office therefore concluded there was insufficient information to meet the criteria of an accident.
On January 12, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies of the WCB's Board of Directors. The provisions of the Act that were in effect as of the date of the April 20, 2021 incident are applicable.
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.
What constitutes an 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.
The worker was represented by a worker advisor, who made a presentation at the hearing. The worker responded to questions from members of the panel. The worker's position was that he suffered an injury to his right biceps while carrying heavy deck pallets down a flight of stairs with his boss on April 20, 2021, and his claim is acceptable.
The worker's representative noted there was a disconnect between the information provided by the worker and the employer with respect to what happened and whether the employer was aware the worker was injured, and submitted that the worker's evidence should be preferred.
The worker's representative further noted that the medical reports on file indicate the worker reported a consistent work-related date of injury and mechanism of injury, and his attending medical providers diagnosed a right biceps muscle tear or rupture. The representative submitted that the medical evidence supported a right biceps injury, which was consistent with the mechanism of injury.
The worker's representative also submitted there was no significant delay in seeking medical attention or reporting the injury. The evidence showed the worker lived in a remote location, without convenient access to medical services, which reasonably explained his attendance at a hospital two days later. The representative further noted that the timing with respect to reporting the claim was consistent with a previous claim for a work-related injury in March 2021, where he had sought medical treatment at the same hospital two days after suffering that injury, and had similarly filed a WCB claim one week after the incident, and his claim had been accepted. The representative submitted that the worker would have had no reason to believe he would need to act differently with respect to his April 20, 2021 accident.
In conclusion, the worker's representative submitted that all of the criteria to establish an acceptable claim were met, and the worker's appeal should be allowed.
The employer did not participate in the appeal.
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 an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is able to make that finding.
Both the worker's representative and the panel questioned the worker at length at the hearing with respect to the work he was performing on April 20, 2021, the mechanism of injury, the worker's positioning at the time, and his subsequent activities. The worker indicated the pallet they were carrying was decking which had been repaired, and he and his supervisor were carrying it down a flight of 10 or 11 stairs to be reinstalled on a dock. The supervisor was at the top and the worker was at the bottom going down the stairs, holding the pallet at the bottom edge with his right hand and balancing it at the top with his left.
The worker described how there was a tree branch halfway down the stairs which was completely overhanging and blocking the way, and they had to tip the pallet diagonally and lower it to the level of the stairs to try to clear the branch. The worker described how his supervisor was pushing because the pallet was jamming, and the worker's right arm popped, at which point he dropped the pallet and called to the supervisor to hold on as he had pulled his arm, switched arms so his left arm was bearing the weight and his right arm was balancing the pallet at the top, then continued on slowly. The worker noted they were almost at the bottom, and only had to carry the platform a couple of feet further after that.
The worker said he had lunch after that, then noted the duties he performed for the rest of the day on April 20, 2021 were pretty light, and consisted of installing a plastic ladder, which he was able to do with his left hand, and helping another crew finish their job.
The panel found that the worker was candid and straightforward in providing his testimony, and accepts the worker's evidence as to the mechanism of injury. Having carefully reviewed and considered all of the evidence which is before us, the panel is satisfied that the incident occurred as outlined on the file and described in further detail at the hearing. The panel is further satisfied that the mechanism of injury, as described, was consistent with an injury to the worker's right upper arm.
With respect to any questions with respect to delay in reporting the injury or seeking medical attention, the panel notes that the evidence clearly shows the worker went to the hospital in the morning of April 22, 2021, at which time he reported having suffered a right upper arm injury at work on April 20, 2021. In the circumstances, the panel is satisfied that the worker reported his injury in a timely manner, and that any delay up to that time in reporting or seeking medical attention was sufficiently accounted for or explained by the worker at the hearing.
Although the employer did not attend or participate in the appeal, the panel notes that they had expressed concerns in the course of the file with respect to the worker's claim, including that they had been made aware the worker was seen hauling water and driving truck after the date of the accident, using both arms. In response to questions from the panel with respect to that concern and the employer's further allegation that the worker could not have done this with a torn biceps, the worker explained that where he lives, they have no water, as there is no well, and all water has to be hauled from a pump station down the highway. The worker said he has to haul water because they need water, but also indicated that no lifting or carrying is involved, and that he was only using his left arm after the accident. The panel questioned the worker as to the process for hauling water, and based on his description of that process, the panel is satisfied that the worker could have performed this task with a right upper arm injury. Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of September, 2022