1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: EMPLOYER CASE ID #[personal information] AND: APPELLANT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT AND: WORKER EMPLOYEE DECISION #114 Appellant Respondent Employee Employer, as represented by [personal information] Brian Waddell, Solicitor representing the Workers Compensation Board Worker, self-represented Place and Date of Hearing May 26, 2009 Best Western, Charlottetown 238 Grafton Street Charlottetown, Prince Edward Island Date of Decision October 9, 2009
2 1. This is an appeal by the Employer of IRO Decision IR-08-46, dated, September 9, For the record, although the Employer, as represented by [personal information], originated the appeal, they chose not to be present at the oral hearing, and requested the Appeal Tribunal rely on their written submission. 3. Similarly, the Worker requested the Appeal Tribunal consider his written submission and he was not present for the oral hearing. 4. With the Board s concurrence, a hearing was scheduled at which the written submissions and the Board s oral presentations were considered. FACTS, EVIDENCE AND BACKGROUND 5. The Worker, [personal information], alleges that on March 25, 2008, he sustained a neck/shoulder injury at work when he removed [personal information] from an overhead shelf to a lower shelf. 6. The Worker filed a Worker s Report with the Board on May 8, The Worker s Report states in part: At the time it did not seem serious although it did feel like something had certainly happened. The injury did not cause any interruption in my work, and there was no immediate pain so I dismissed it as a pulled muscle or something minor at the time. It was not until after a week or so had passed when I noticed whatever had happened was getting progressively worse, especially the pain running from my neck down into my left shoulder. 8. The Worker s Report also states:
3 -2- I formally reported the injury to my [personal information] Supervisor sometime during the beginning of my shift on Sunday, 27 Apr 08. However, I did mention, although not formally, that I was experiencing an issue with my neck and shoulder on Sunday, 20 Apr I initially made an appointment with my family doctor concerning my injury as indicated on 16 Apr It should be noted that the appointment was made the first week of Apr. He examined me and referred me to an orthopedic surgeon, Dr. John Campbell. 9. The Worker was a permanent part-time employee with the Employer, working an 8 hr. shift, 2 days a week. 10. On May 30, 2008, Kara Katmouz, the Board s Entitlement Officer, advised the Worker by letter that his claim for benefits as a result of his injury was accepted by the Board effective May 11, 2008, the diagnosis being left sided neck strain. 11. On June 18, 2008, the Employer requested reconsideration of the Board s decision made by Ms. Katmouz. 12. The Employer s reasons for requesting reconsideration were: R1-01: The Worker reported an injury to his employer on April 27, He stated he sustained an injury to his left shoulder and neck while removing [personal information] from the [personal information] on March 25, The incident was not reported at the time. In fact, it was not reported until 5 weeks later. There were no witnesses. The Worker continued to work his full regular shifts up to and including May 10, Therefore we do not feel his injury resulted out of or in the course of his employment. R1-02: The Worker sought medical treatment 3 weeks after the alleged incident on April 16, He was referred to a specialist on April 18, 2008 and physiotherapy on May 7, None of these visits prompted the completion of an 8/10 report to the Board or any restrictions in regards to his work duties. It would be rationally concluded that the lack of
4 -3- necessity for work restrictions and medical documentation indicates his injury is not a result of his work activities. We believe the Worker has not met the Board s criteria for proof of accident in this claim, noting the delays in reporting and seeking medical attention and his ability to perform his regular duties for 6 weeks following the alleged incident. There were also no witnesses to the alleged incident. 13. On September 9, 2008, Bonnie Blakney, the Board s IRO upheld the decision of the Board, that the Worker had sustained an injury related to his employment. 14. Ms. Blakney identified the reconsideration issue as follows: Was it appropriate to accept the worker s claim based on the information on the file? 15. Ms. Blakney s rationale/analysis for her decision reads: The issue before me is whether the worker s injury arose out of and in the course of his employment. The employer s representative contends that because the worker did not report the injury to his employer until five weeks after the fact, that the claim should not have been approved. The employer s representative also states that medical attention was not sought until April 16, 2008, three weeks post injury, and that the worker continued to work his full regular shifts up until May 10, It was also stated that It would be rationally concluded that the lack of necessity for work restrictions and medical documentation indicates this injury is not a result of his work activities. The Workers Compensation Board Policy O4-23- Arising out of and in the Course of Employment states, Arising out of employment means an injury that must be linked to, originate from, or be the result of, in whole or in part, an activity or action undertaken because of a worker s employment. In the course of employment means the injury
5 -4- must be linked to a worker s employment in terms of time, place and activity. On March 25, 2008, the worker was performing his regular duties during his shift when he lifted a box from an upper shelf and felt a pinch in his neck/shoulder. There was no witness to the event and he did not report it to his supervisor; however, he did discuss the problem with his family doctor, Dr. R. Cooke, the next day. The description of the injury on the doctor s report is consistent with the nature of the events reported on the Worker s Report of Injury. One would wonder whether there was any discussion between the worker and the doctor regarding workplace causation, as the doctor s report was not received until almost two months after the visit and only after being requested by WCB. However, without evidence one way or the other, I can only speculate. The Workers Compensation Act states in Section 59.(1), Where any worker or dependent is entitled to compensation under this Act, he or she shall forthwith notify his or her employer and shall file with the Board an application for compensation, together with the certificate of the attending physician, if any, and such further proofs of his or her claim as may be required by the Board. As the Act states, the worker shall forthwith notify his employer. Even though this was not done until five weeks later, that in and of itself does not mean the claim would or would not be accepted. It does raise the question as to why he did not report the injury. The only evidence on the file regarding the delay in reporting is the testimony of the worker in his report of accident where he says he did not think the injury was that serious. In weighing the evidence on file, I find the decision to accept the worker s injury as being work related was appropriate. I recognize the reporting of the injury to the employer was not done in a timely manner; however, the Workers Compensation Act and Policy does not support a denial of a claim based solely on that one fact. Decisions
6 -5- are to be made based on the real merits and justice of each case. The evidence on this claim supports that the worker s injury arose out of and in the course of his employment and the decision by the Entitlement Officer to accept the claim was appropriate. 16. On October 3, 2008, the Employer appealed Ms. Blakney s decision of September 9, 2008 to WCAT, stating in part:...although the worker has asserted a claim for workers compensation benefits, we submit the necessary preconditions for initial entitlement are not met precisely because on a balance of probabilities the claim file evidence does not suggest that the worker s workplace materially contributed to his neck injury. Noting our concerns with respect to the circumstances of the claim (no witness; no evidence of functional difficulties; delay in reporting) the significant delay in seeking medical attention and the excessive discrepancy between the alleged date of injury and the date time loss from work began, and the fact that his diagnosis includes pre-existing arthritis, we submit, that it is more probable than not that the worker s neck injury did not arise out of or in the course of employment. 17. ISSUE The issue is whether the worker suffered a neck/shoulder injury on March 25, 2008 arising out of and in the course of employment? DECISION 18. WCAT is bound by the Workers Compensation Act (the Act) and by Board Policy (unless ultra vires). 19. Section 6 of the Act reads: 6.(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course
7 -6- of employment is caused to a worker, the Board shall pay compensation as provided by this Part out of the Accident Fund. (4) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. 20. Board Policy Number: POL04-23 deals with the subject of ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT. 21. The policy reads: 1. Arising out of employment means an injury that must be linked to, originate from, or be the result of, in whole or in part, an activity or action undertaken because of a worker s employment. 2. In the course of employment means the injury must be linked to a worker s employment in terms of time, place and activity Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed, that it arose out of the employment. 22. Policy Number: POL deals with the subject of WEIGHING OF EVIDENCE. 23. The policy reads: 1. In determining entitlement, the Workers Compensation Board will consider the following: whether an injury has occurred;
8 -7- whether the injury was caused by an accident arising out of and in the course of employment; whether the diagnosed condition is compatible with the accident history provided; and whether medical treatment by a health care provider was required as a result of the injury. 2. The Workers Compensation Board will examine the evidence to determine whether it is sufficiently complete and reliable to allow a decision to be made. If the Workers Compensation Board determines more information is required to make a decision, the Workers Compensation Board will work with the worker, employer and health care providers to obtain the necessary information. 3. The standard of proof for decisions made under the Act is the balance of probabilities - a degree of proof which is more probable than not. 4. Decision makers must assess and weigh all relevant evidence. Conflicting evidence must be weighed to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 5. If the decision is weighed in favour of the worker, the claim shall be allowed and compensation benefits provided. 6. If the evidence weighs against a worker s claim, the claim will not be allowed. 7. If the Workers Compensation Board concludes that the evidence for and against entitlement is approximately equal in weight, then the issue will be decided in favour of the worker, supported by a rationale for finding the evidence to be approximately equal in weight. 24. The Panel agrees with the analysis and rationale of Ms. Blakney in her reconsideration decision of September 9, The Panel on the balance of probabilities, accepts the Worker s allegation that he suffered a neck/shoulder injury at work on March 25, 2008.
9 Physician and physiotherapy reports filed with the Board sufficiently prove that the Worker suffered a neck/shoulder injury and that the cause of his condition was not pre-existing arthritis. 27. That the Worker sustained a neck/shoulder injury while moving a heavy carton [personal information] from an overhead shelf is plausible. 28. Moreover, there is no evidence to the contrary. 29. The Panel agrees with the Board s submission (factum) that the following information supports a finding of relatedness between the Worker s neck condition and the incident of March 25, 2008, and rebuts the employer s allegation of the Worker s excessive delay in seeking medical attention: (a) The worker thought his injury was minor at the time and would clear up with time; (b) The worker was not aware of any specific reporting requirements with respect to workplace injuries, as he had no previous experience with reporting workplace injuries; moreover, the Employer was of no assistance in this regard, as the worker s supervisor had no knowledge of how to report a workplace injury; (c) The worker mentioned his neck injury to his family doctor, Dr. Cooke, the day after the incident, that being March 26, 2008, as evidenced by a report of Dr. Cooke; (d) That Dr. Cooke did not complete a Physician s Report was beyond the control of the worker;
10 -9- (e) During the first week of April (a very short time after the incident), the worker scheduled an appointment with his family physician; and while waiting for this appointment, he called his family physician s assistant on more than one occasion to see if he could get an earlier appointment, and to put himself on the cancellation list; (f) Although the worker s pain was intensifying with the passage of time, the worker was simply trying to work through the pain while he secured an appointment with his family physician; and (g) The worker told each and every doctor he saw concerning his neck injury that it was a work-related injury. 30. Perhaps the Board should consider ways to better educate workers, employers and physicians with respect to reporting requirements under the Act and Board Policy. 31. The Employer also submits that there is too great of a discrepancy between the date of the workplace incident (March 25, 2008) and the date the Worker began to lose time from work (May 11, 2008). 32. The Worker has explained that the pain became progressively worse with the passage of time but eventually he was unable to tolerate the pain, and had to begin to miss time from work. 33. The fact that the Worker only had to work part-time, 2 days a week, may be another reason.
11 The Panel agrees with the Board s submission (factum) that it would be unfair to cast suspicion on a worker s claim simply because he or she may have temporarily exhibited a higher pain tolerance than other workers. 35. In summary, the Tribunal finds, on the balance of probabilities, that the Worker sustained a neck/shoulder injury on March 25, 2008, at his employer s workplace. 36. Accordingly, the Tribunal confirms IRO decision IR-08-46, dated September 9, Dated this 9 th day of October, John L. Ramsay, Q.C., Vice-Chair Workers Compensation Appeal Tribunal Concurred: Ray Hann, Employer Representative Nancy FitzGerald, Worker Representative