Decision #116/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on October 29, 2024 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
The claim is acceptable.
Background
The worker filed a Worker Incident Report with the WCB on February 14, 2024 reporting that on February 2, 2024, they injured their ribs and right shoulder in an incident at work. The worker described performing their job duties raking asphalt when they felt pain in their rib area and right shoulder. The worker noted they did not feel the injury was serious initially but the following day, they were in a lot of pain, and they reported the incident to their foreman on February 12, 2024.
The worker attended for an initial physiotherapy assessment on February 14, 2024, reporting that while working on February 2, 2024, they did a downward diagonal movement that caused pain to their right shoulder, chest and left lower rib cage, and left upper abdomen. A second incident on February 13, 2024 was also noted by the worker and involved reaching for an overhead door switch, which caused pain in their left upper abdomen, and the worker described falling to their knees in pain. The treating physiotherapist noted the worker's report of pain to their left abdominal upper quadrant/inferior rib margin, right shoulder and chest, and left thoracic spine/scapular region. The worker indicated the pain was aggravated in their right shoulder with reaching overhead and lifting and their left thoracic spine/scapular region pain was aggravated with any forward bending and noted difficulties with the activities of daily living. The worker also noted the site of their previous hernia felt like it was going to "explode outwards". On testing, the treating physiotherapist noted reduced range of motion and some testing unable to be completed due to pain. The worker was diagnosed with a grade 1 right shoulder sprain/strain, thoracic spine sprain/strain, and left abdominal/left lower rib sprain/strain and the treating physiotherapist queried whether the worker had a traumatic abdominal hernia, noting that was to be confirmed by the worker's treating physician. Restrictions were put in place.
The WCB contacted the employer on February 15, 2024 to request completion of an accident report. The employer responded on the same date to advise the worker's supervisor was unaware of an injury and would need to speak with the worker to investigate.
On February 20, 2024, the worker attended an appointment with their family physician. The physician recorded that the worker was "Hurt at work Feb 2, 2024" but attended to have a hernia repair area checked. The worker reported daily pain with multiple scapular and rib pain that worsened with activity. The physician noted the worker had a previous hernia repair in October 2021, which was "very irritated", referred the worker back to the surgeon who performed the repair and diagnosed the worker with an aggravated hernia repair. It was recommended the worker remain off work unless there were light duties available.
The WCB contacted the worker on February 21, 2024 to discuss their claim. The worker confirmed the mechanism of injury noted on their report and advised on February 2, 2024, it was not a typical workday, with that day being a heavy workday. The worker noted they mentioned to their coworkers that they were having pain that day and felt increased pain and soreness the following day. The worker described the pain as sharp and on the bottom of their right shoulder blade with a dull pain to the right side of their rib area. In addition, the worker indicated the area where they had a previous hernia repair near the left side of their rib cage also began to hurt, and they experienced severe pain when lifting both arms up and it felt like their "guts were going to fall out". The worker advised the WCB they took sick time for a couple of days then returned to work and tried to avoid heavy duties. On February 13, 2024, the worker advised their supervisor they were dealing with a lot of pain and advised they were not aware their injury was a WCB claim until they attended physiotherapy treatment. The worker advised the WCB their current symptoms included pain when lifting their arms, a dull ache consistently across their ribs, and difficulties with looking over their right shoulder, putting on shoes and other activities of daily living. The worker further advised they remained off work and the employer had not offered any light or modified duties.
The employer submitted the Employer's Incident Report to the WCB on February 22, 2024. The employer indicated the incident was reported to the worker's supervisor on February 14, 2024, and described the worker's reporting of a left chest, back right shoulder and right rib cage injury after raking asphalt on February 2, 2024. A Notice of Injury form was also submitted, signed by the worker on February 15, 2024, reporting they were feeling aches and pains after a shift of raking asphalt and described the injury to their left chest hernia area, back of right shoulder and right-side rib cage. The employer also provided a timeline of the worker's attendance and work duties from February 2, 2024 to February 20, 2024. Included was a report by the employer of the worker describing an incident that occurred at home on February 13, 2024 when they lifted their arms too fast, which caused them such pain they fell to the ground and needed to be helped up by friends.
A report from the surgeon who performed the worker's hernia repair for a follow-up appointment on February 28, 2024 was received by the WCB on March 5, 2024. The surgeon noted the worker's reporting of "…bouts of muscle spasm like pain at site lifting and twisting but no bulge noted." The physician indicated the surgical site was mostly healed and the worker's spasms of pain and pressure were likely due to benign muscle spasms, with no evidence of a recurrence of the hernia. It was recommended the worker avoid movements that cause the muscle to spasm. A follow-up report from the worker's treating family physician was received on March 11, 2024 for a March 8, 2024 appointment and noted improvement overall with the worker's upper back, rib and hernia repair site injuries and found the worker was capable of returning to work on modified duties.
On March 20, 2024, the WCB received a response from the employer to their March 18, 2024 request regarding the worker's coworkers witnessing an incident on February 2, 2024. The employer advised that both coworkers advised they had not witnessed the worker getting injured on that date. On March 21, 2024, the employer advised the WCB the worker returned to work on the same date on modified duties.
The WCB spoke with the worker on March 21, 2024 to advise them that their claim was not acceptable. A formal decision letter was provided to the worker on April 30, 2024, advising that the evidence did not support the worker sustained an injury in the course of or arising out of their employment. The worker's representative requested reconsideration of the WCB's decision to the Review Office on May 8, 2024. The representative presented the argument that the worker's treating healthcare providers supported the worker sustained a muscular injury which was consistent with their reporting of raking asphalt on February 2, 2024, and with a recurrence of a hernia injury ruled out, the worker's treating family physician diagnosed shoulder and abdominal strains as a result of the workplace accident. The employer provided a submission in support of the WCB's decision to the Review Office on July 16, 2024, with the worker's representative providing a response on July 23, 2024.
The Review Office determined on July 24, 2024 that the worker's claim was not acceptable. The Review Office found the worker did not make any complaints regarding an injury or seek medical attention until February 14, 2024. In addition, the Review Office found the file evidence indicated the worker made a complaint to the employer of a non-work-related incident that occurred in closer proximity to the date they reported the incident to the employer and sought medical treatment.
The worker’s representative filed an appeal with the Appeal Commission on July 29, 2024 and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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. The provisions of the Act in effect as of the date of the February 2, 2024 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", subject to subsection (1.1), includes
(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.
The WCB has established a policy, Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) that focuses on the reasoning process the WCB uses to determine whether an accident arose out of and in the course of employment. The Policy states, in part:
In determining whether a worker's accident arose in the course of employment, the WCB generally focuses on evidence regarding the time and location of the accident. If the event(s) that caused the worker's injury occurred during work, at a place where the worker is reasonably expected to be, the accident arose in the course of employment.
Worker’s Position
The worker appeared in the hearing represented by a workers compensation specialist. The worker’s representative made an oral submission on behalf of the worker, and provided a written submission in advance of the hearing as well. The worker provided testimony through answers to questions posed by their representative and in response to questions from members of the appeal panel.
The worker’s position is that the evidence supports that the worker sustained injuries to their right shoulder, back and chest from raking asphalt on February 2, 2024.
The worker submits that the delay in reporting their injury was reasonable and that in a physically strenuous job such as their job, it is normal to feel aches and pains on a daily basis. The worker states they did not initially feel that the injury was serious but when the symptoms persisted that is when they contacted their employer and sought medical treatment.
The worker’s representative states that the decision made by the WCB indicated that the worker was not immediately symptomatic, however the worker states that that is incorrect, and their evidence is that they felt pain during their shift on February 2, 2024, which progressed the following day. The worker’s representative notes that this evidence was contained in the Worker Incident Report as well as in a conversation with the WCB adjudicator on February 21, 2024. The worker’s evidence is that they did very minimal activity following the incident and avoided heavy labour. The worker described that the shifts following the injury mostly consisted of driving in a truck.
The position of the worker is that their injury was an event arising out of and in the course of their employment and the worker is seeking that the claim be accepted.
Employer’s Position
The employer was represented by a WCB coordinator, who participated in the hearing, providing a submission on behalf of the employer. It was the employer’s position that the worker’s injury was not causally related to the performance of the worker’s job duties and the appeal should therefore be denied.
The employer points to the fact that the worker requested sick days but did not mention an injury at work and also continued to work long shifts between those sick days. The employer also notes that the worker’s co-workers indicated that they did not notice the worker getting hurt on February 2, 2024.
The employer’s position is that the injury as described by the worker cannot be established due to the worker’s delays in reporting their injury and in seeking medical treatment.
The employer notes that the worker’s representative submits that the worker refrained from intensive activities following their injury, however, the employer submits that the evidence on file is not consistent and states that the worker worked an eight-hour shift and a nine-hour shift within a few days of the February 2, 2024 incident.
The employer is seeking that the decision of the Review Office be upheld.
Analysis
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 their employment. For the reasons that follow, the panel was able to make that finding and the worker’s appeal is granted.
The panel considered the worker’s testimony as to the nature of their job duties and noted that a portion of the worker’s job duties are rigorous and physically intensive. On the date in question the worker was shoveling asphalt and repairing a road in winter conditions.
The panel accepts that the worker sustained injuries to his right shoulder, back and chest while at work, and while carrying out the daily obligations of their work, and therefore the worker’s claim should be acceptable.
The panel notes that the worker’s claim appears to have been denied mainly on the basis of the delay in reporting the injury and that the worker continued to work following the injury. The panel is of the view that the delay, which was less than 30 days, was not enough to deny the worker’s claim. Further, the evidence before the panel is that the WCB did not determine the specifics of the worker’s job duties following their injury and did not speak directly to the worker’s co-workers but relied on a statement in an email from the employer that the co-workers were not aware of the worker’s injury. The panel is of the view that a more thorough investigation ought to have been completed.
In addition, the evidence before the panel is that the worker had days off work following the February 2, 2024 incident. The panel finds the worker’s accounting to be credible and accepts the testimony of the worker that they did not work their regular duties following the injury and instead avoided physically demanding job duties, mainly opting to drive the truck instead.
The panel is of the view that the worker had two other episodes after the February 2, 2024 injury (thrusting their arms above their head and reaching for a button to open a door), which caused the worker to realize the seriousness of their injury.
The panel considered the medical evidence before it and notes that the chart notes from the initial physiotherapy appointment and the initial doctor appointment both reference an injury at work on February 2, 2024. The Doctor First Report mentions daily pain, which worsens with activity and recommends that the worker remain off work unless light duties are available. The Physiotherapy Initial Report indicates the worker is unable to work regular duties and provides restrictions to be reviewed in three weeks’ time.
On the basis of the evidence before us, including the worker’s testimony and the medical reporting of the treating physician and physiotherapist, the panel is satisfied that a causal relationship can be established between the February 2, 2024 incident and the injury to the worker’s right shoulder, back and chest.
The panel is therefore satisfied that 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. The worker’s appeal is granted.
Panel Members
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of December, 2024