Decision #113/24 - Type: Workers Compensation
Preamble
The worker appealed the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing took place on December 11, 2024 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
The claim is acceptable.
Background
The WCB received a Doctor First Report on January 15, 2024, describing the worker’s report of injury to their right hip and lower back after stepping on a box while exiting a car in a parking lot on January 5, 2024.
On January 19, 2024, the WCB received a Worker Incident Report from the worker, reporting they injured their right hip and lower back on January 5, 2024 when they stepped out of their vehicle in the employer’s parking lot, stepped on a cardboard box and fell. The worker noted that because they had objects in their hands, they were unable to put out their hands to stop the fall. The report indicated the worker reported this incident to their manager on January 10, 2024.
The initial physiotherapy assessment of January 23, 2024 indicated the worker’s description of stepping on a box while exiting their vehicle and falling onto their right hip. The worker advised they called into work sick due to pain and attempted to work the following day, but it was “really painful.” The worker reported to the physiotherapist that they did not initially advise the employer of the incident as they were not “…sure the parking lot counted.”
The employer provided an Employer Incident Report to the WCB on January 24, 2024. In their report, the employer noted the worker reported to their manager on January 10, 2024 that while getting out of their vehicle on January 5, 2024, they slipped on a piece of cardboard and fell to the ground. When asked, the worker clarified to the employer it was in their worksite parking lot. The employer noted the worker completed their shift on January 5, 2024 without complaint and did not mention the incident when they called in on January 8, 2024. On February 1, 2024, the worker’s manager confirmed to the WCB the worker did not make any complaints to them regarding the workplace incident during the two days they worked after the fall.
When the WCB spoke with the worker on February 1, 2024, the worker confirmed the mechanism of injury described in their incident report and noted they were unsure if they hit their head on the ground or another car during the incident as the details seemed “fuzzy”. The worker also described going to their vehicle after work and starting to leave but then realizing that they left their work phone in the building. The worker stated they then parked their vehicle and as they were exiting, stepped onto the cardboard box, and slipped, falling on their right hand and right side, hip, and buttocks. The worker advised they self-treated their injury with heat over the weekend and called in sick the following Monday, January 8, 2024. The worker returned to work on January 9, 2024, mentioned they were sore and hurting and used their heating pad. The worker advised their pain increased each night, with their right hip seizing up. The worker indicated they had no previous injury to that area but had a herniated disc in their lower back. In relation to their current symptoms, the worker advised they felt they were getting better but had low energy and spent most of their time laying down on a heating pad. The worker explained that they did not report the incident until January 10, 2024 as they did not trust those at their workplace to do so and when they called in, they would have told the employer they were sick. The WCB advised the worker that further investigation would be required.
On March 7, 2024, the WCB received a copy of the Notice of Injury to Employer completed by the worker on January 11, 2020. Attached to the Notice was a memorandum completed by the worker confirming that the January 5, 2024 incident took place during the morning, not after their shift as previously noted.
On March 8, 2024, the WCB spoke with the worker again, noting the differing information on the time of the accident, and the worker advised that they had been experiencing some confusion recently. The WCB advised the worker that their claim was not acceptable due to the inconsistencies in the worker’s reporting and the delay in advising the employer and seeking medical treatment. The WCB wrote to the worker on April 24, 2024 confirming this decision.
On June 27, 2024, the worker’s representative requested Review Office reconsider the WCB’s decision, noting the worker did not immediately report the January 5, 2024 workplace accident immediately to the employer due to the worker’s belief their report may not be taken seriously or acted on based on their past experiences with the employer. The worker’s representative also noted the worker attended for medical treatment in a reasonable amount of time, accepted the first appointment available with their family physician, and self-treated their injuries while waiting for that appointment. On August 13, 2024, the employer provided Review Office with its submission in support of the WCB’s decision. On August 20, 2024, Review Office upheld the WCB’s decision that the worker’s claim was not acceptable.
The worker’s representative filed an appeal with the Appeal Commission on August 26, 2024 and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the 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:
(a) a chance event occasioned by a physical or natural cause,
(b) a wilful and intentional act that is not the act of the worker, or
(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,
that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.
Worker’s Position
The worker appeared in the hearing, represented by a union representative who made an oral submission in support of the worker’s appeal and relied upon a submission provided to the appeal panel and the employer in advance of the hearing. The worker offered testimony through their answers to questions posed by their representative and by members of the appeal panel.
The worker’s position is that the evidence confirms the worker sustained an injury as a result of a slip and fall incident at work on January 5, 2024, and as such, the WCB should accept the claim.
The worker’s representative noted that although the WCB found the worker unreasonably delayed both in reporting the incident to the employer and in seeking medical treatment for their injury, the worker reported the incident to the employer on the second working day after the date of the incident and sought medical treatment from their own family physician as soon as possible after the incident, when it became clear that the worker’s self-treatment was not sufficient. These actions do not amount to unreasonable delay in reporting or seeking medical attention.
The representative further noted that any inconsistency in the worker’s statements about the incident can be reasonably explained, and the worker offered their explanations in answering the representative’s questions.
Employer’s Position
The employer was represented in the hearing by its workers compensation coordinator, who provided an oral submission outlining the employer’s position and responded to questions posed by the appeal panel.
The employer’s position is that the worker delayed in reporting the incident and in seeking medical treatment for their injuries, and that as a result the employer could not confirm that the incident occurred as the worker reported. The employer’s representative also noted the worker was able to complete their work on January 5, 2024 and when they called in on January 8, 2024, did not report their absence was due to an accident at work.
Further, the employer representative noted the worker was inconsistent in their description of when the incident occurred on January 5, 2024 and therefore the worker’s report cannot be relied upon in support of their claim.
As such, the evidence does not support a finding that the worker sustained an injury due to an accident arising out of and in the course of employment and therefore, the claim should not be accepted.
Analysis
This appeal arises from the WCB’s decision that the worker’s claim in respect of a reported slip and fall causing injury to their right hip and lower back is not acceptable. For the worker’s appeal to succeed, the panel would have to find that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.
The panel reviewed the evidence in relation to the incident as described the worker’s report to the WCB. We note there is no dispute that the incident as described took place in a parking lot controlled by the employer. While the worker did not initially report their fall, we accept their explanation as provided in the hearing that they felt embarrassment about falling and did not at first think that this was an incident worth reporting until a few days later when their symptoms continued to increase, and they decided to seek medical attention. The panel noted the worker’s testimony that they self-treated with a heating pad and pain relief medication while at work on January 5, 2024 and continued to self-treat over the weekend that followed.
The panel also noted that there is some evidence that the worker reported the fall to the employer on January 9, 2024, which was the first day the worker was at work after the date of the reported accident, and there is further evidence confirming conversations about the fall between the worker and their supervisor on January 10, 2024. The panel does not find this to be a significant delay in reporting the incident to the employer, although ideally the worker would have done so on the date the incident occurred.
While the WCB noted inconsistencies in the reporting as to the time of day of the incident, the panel noted that only the February 1, 2024 memorandum prepared by the WCB adjudicator contains this inconsistency, and that document itself is inconsistent in that the adjudicator recorded both that the worker confirmed the mechanism of injury as described in the January 19, 2024 Worker Incident Report occurring in the morning and that the worker described the same mechanism of injury as occurring at the end of the workday. Given that the worker did not create this document, and the adjudicator did not inquire further or give the worker any opportunity to address this inconsistency at that time, the panel is concerned that the inconsistency may be in the recording rather than the reporting. We further noted the adjudicator then relied on this apparent inconsistency in denying the worker’s claim despite the fact on March 7, 2024, the worker explained in writing that they have been having memory issues and confirmed that the incident occurred when they arrived at work on January 5, 2024. The worker’s further explanation is consistent with their initial reporting to the employer as documented in the various emails of January 10, 2024, the incident report for the employer dated January 11, 2024, the report to the treating physician on January 15, 2024 and the report to the treating physiotherapist on January 23, 2024. While we found the worker to be imprecise in their testimony, we do not find the worker’s testimony to be unreliable. As noted in the treating family physician’s April 22, 2024 letter, the worker is taking medication that can impact their ability to recall, and the panel accepts that this is the case.
The panel further noted the absence of any evidence to contradict the worker’s report. There were no witnesses to the incident and the employer does not have any video surveillance of its parking lot that might confirm or contradict the report. Further, the evidence does not suggest another cause for the worker to seek medical treatment for injury to their right side.
Having reviewed the evidence and heard from the worker directly, the panel is satisfied that an incident occurred at the employer’s premises on the morning of January 5, 2024 as initially reported by the worker. We find that the worker slipped and fell landing on their right side and hip and sustained injury as confirmed by the subsequent medical reporting. Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury as a result of an accident as defined in the Act, on January 5, 2024. Therefore, the worker’s claim should be accepted. The worker’s appeal is granted.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of December, 2024