WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100083
OBJECTION BY: The employer
WORKER: Participating
HEARING DATE: May 20, 2010
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Observer
ISSUE
The employer is objecting to the allowance of initial entitlement
HOW THE ISSUE ARISES
The worker related his back problems to an April 29, 2009 injury at work. He reported on his worker’s report of injury that he jumped to miss a pot hole and fell. The employer reported the injury outlining concerns about its allowance, after review entitlement was first denied but was subsequently was allowed.
The eligibility adjudicator noted there was immediate medical attention, immediate reporting, immediate pain and lost time from work in making their decision.
The employer objected to the decision to allow entitlement and the objection was referred to the Appeals Branch.
AUTHORITY
15-02-01 Definition of an Accident
15-02-02 Accident in the Course of Employment
11-01-01 Adjudicative Process
ASSESSMENT OF THE EVIDENCE
The employer requested a hearing to present their case. Prior to the hearing additional documents were submitted by the employer representative to add to the file record.
The employer representative argued that the worker has been employed with them since January 1996 working as a fork lift operator in their shipping and receiving department. While in this employment he has demonstrated English language speaking ability. On April 29, 2010 the worker reported that something happened at work causing injury. What he reported has changed several times and this changing explanation has raised doubts about the accident itself. They were concerned that the adjudicative decision to allow entitlement accepted there was a language barrier.
The worker representative argued that the facts are clear, all immediate have been established and that the worker sustained a chance event accident for which he has been correctly been allowed entitlement.
Testimony and Arguments
The worker testified in English. An interpreter had been requested but did not arrive in time for the hearing. It was agreed that the hearing could proceed with the employer or worker representative providing needed translation. None was requested during the hearing.
The worker described his job duties. He stated he did speak English at work but spoke to his direct supervisor in Italian. He recalled reporting an incident on April 29, 2009. He told his supervisor that he fell down; he left his truck to go tell Vince. Vince told him to go upstairs to tell Doug. He did that but Doug yelled at him as soon as the worker told him he fell. The worker stated the manager told him he should have told Vince. He went back to Vince and told him what happened.
The worker was asked to describe the yard. The yard is paved except for 40 to 50 feet of it near the railway line. This is the area where the potholes are.
He was on his machine got down to go around the machine and tried to jump the pothole while doing this he fell onto his left side. He did not tell the manager any details as he was not encouraged to. He stated there was mud and water in the pothole but he avoided it.
The worker says he speaks to his family doctor in Italian at other appointments his wife goes with him. She speaks English better than him.
His supervisor wanted him to stay for the day so he did but he worked in pain. The supervisor had to help him, when he went home he had difficulty driving his wife had to help him from the car.
The employer stated that the worker created doubts about the accident because of the changes in his history and with his reluctance to return to work It was their position that the accident cannot be proven as what he said happened does not make sense. In addition the diagnosis of sciatica is pre-existing and as such is not allowable; He referred to discrepancies on file in support of his position. He pointed out the adjudicator first denied the claim then based on the worker’s lack of English skills allowed it.
The worker representative stated it clearly was allowable and that if there were discrepancies with the worker’s versions there were also discrepancies with the employer’s. He made reference to the employer’s letter of May 13, 2009 that refers to what was reported and pointed out that it is somewhat different than the statements that were submitted in April 2010. It was his position that in view of the immediates, the allowance of the claim is in order.
The File Record
The worker’s report of injury (Form 6) says that the worker reported it right away to his supervisor and went to doctor April 30, 2009. This form was completed May 12, 2009.
The employer’s report of injury (Form 7) confirmed it was reported right away but that there was conflicting information and they were unable to determine how or why the injury occurred. This form was completed April 30, 2009.
The doctor’s report of injury (Form 8) was completed April 30, 2009 and the history was while walking in the lumber yard he had to jump over a pot hole while doing so he fell. The diagnosis was contusion to left hip, left knee and disc herniation of L5-S1.
On May 15, 2009 the worker said he got off the forklift jumped over puddle and fell, hurt his left leg and now cannot stand up.
The employer’s concerns were documented in memo 7 that the worker finished shift without complaint and that there were differences in the accident history reported. This is documented in memo 7.
The letter of May 13, 2009 from the employer outlined two different accident histories but both involved falling to the ground. I noted that the history provided to the supervisor is reported somewhat differently in the statement sent in prior to the hearing.
Analysis
In determining initial entitlement, it is necessary to establish five points: an employer; a worker; a personal work-related injury; proof of accident; and compatibility of diagnosis to accident or disablement history.
Consideration of proof of accident may include examining whether an accident or disablement situation exists; whether there were witnesses; whether there were discrepancies in the date of accident and the date of layoff; whether there was delay in the onset of symptoms; and whether there was delay in seeking medical attention.
The definition of accident, according to operational policy, includes a wilful and intentional act, but not an act of the worker; a chance event resulting from a physical or natural cause; and disablement arising out of and in the course of employment. Disablement includes a condition that emerges over time, or an unexpected result of working duties.
In this case there is an employer and worker relationship. The personal injury has been diagnosed not just as sciatica as submitted in the employer’s arguments and as outlined in their May 13, 2009 letter but as a contusion and possible herniation (which would support sciatica symptoms), this diagnosis is compatible to a fall so the question is whether there is proof of accident.
The employer raised concerns about the description of the accident and that is the basis of their objection. There is no dispute that the worker reported an accident to his employer just after it apparently occurred, he sought medical attention right away, he went off work the next day, when at the doctor he told the doctor basically the same accident history, and the diagnosis was compatible to a fall at work. The worker established the “four immediates” required for a chance event accident entitlement. There was an immediate onset of pain, followed by immediate reporting, immediate medical attention and immediate time off from work.
It is unfortunate that the stories are not exact in their retelling but listening and reviewing the circumstances are that a fall was reported at work that arose out of and was in the course of the worker’s employment. A fall was reported, medical attention was sought, there were physical findings compatible with the reported accident and lead me to conclude when all the facts are considered I am upholding the decision to grant initial entitlement.
CONCLUSION
For the reasons outlined above, the objection by the employer is denied..
DATED June 15, 2010
S. McKinnon
Appeals Resolution Officer
Appeals Branch