WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1039/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1039/11 BEFORE: W. Sutton : Vice-Chair B.M. Young : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: May 9, 2011, at Hamilton Oral DATE OF DECISION: June 20, 2011 NEUTRAL CITATION: 2011 ONWSIAT 1555 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer, D.M. Shepherd, dated January 30, 2009 APPEARANCES: For the worker: For the employer: Interpreter: R. Puzzo, Paralegal D. Seupersad, Office of the Employer Advisor Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1039/11 REASONS (i) Introduction to the appeal proceedings [1] The accident employer appeals a decision of the ARO, which concluded that the worker had initial entitlement for an inguinal hernia. The ARO rendered the decision based on the written record, without an oral hearing. The accident employer appeals the decision. (ii) Issue [2] The issue under appeal is as follows. 1. The accident employer seeks to rescind the ARO s decision that granted initial entitlement to the worker for his inguinal hernia. (iii) Background [3] The following are the basic facts. [4] The now 62 year old worker started as an installer with the accident employer, a manufacturer of kitchen units, on April 21, The worker was injured the same day in the course of moving a large kitchen unit into a new home build. His Form 6 Report of Injury/Disease dated May 9, 2005 states that the lift was difficult to achieve as they had to move the unit into the home by way of an awkward entry through the garage. In the course of lifting the unit, he felt a pull in his right groin accompanied by a toothache type of pain. Hoping the pain would subside; the worker did not report his problem, as he had just started the job and felt uncomfortable in doing so. He also felt that he may have strained himself and could work through the problem. The worker continued to work for the next two days, when he noticed a bulge in his lower right abdomen. On April 24, 2008, he called his employer, indicating he would not be in to work. On April 25, 2008, the worker attended Dr. Koole, (standing in for Dr. Bruma, family physician), who diagnosed an inguinal hernia and referred him to Dr. Gagic, a general surgeon. The hernia surgery involving a laparoscopic repair with mesh was performed on August 29, [5] The worker returned to work on December 1, 2008 with a different employer, in a less demanding capacity and with a lift restriction imposed by Dr. Koole of 50 pounds. On May 12, 2009, Dr. Koole identified a recurrence of the worker s right inguinal hernia. Dr. Gagic, who examined the worker on May 13, 2009, proceeded to arrange for an open hernia repair with mesh. The procedure was performed on November 26, 2009 by Dr. Chan, who advised that the worker could return to work on December 29, [6] The worker s file indicates two previous surgeries (the pre-accident surgeries ). The first was a cholecystectomy performed in October 2007; the second was a radical prostatectomy, also performed in November [7] The worker s claim for his inguinal hernia was initially denied by the Claims Adjudicator on June 25, 2008 on the basis that there was no proof of accident. However, the Board ultimately granted the worker entitlement for his injury, including his first surgery, as a result of the ARO s decision on January 20, The worker then requested entitlement for his second surgery of

3 Page: 2 Decision No. 1039/11 November 26, Following review by Board Medical Consultant, Dr. Balinson, the Case Manager allowed the worker s claim as a recurrence related to his original workplace injury. [8] On February 26, 2009, the accident employer appealed the worker s initial entitlement. It is the view of the accident employer that the worker, as witnessed by company personnel, did not lift anything heavy and misled the ARO by not providing information that he was performing additional work from his home. The accident employer stated that there were company witnesses who heard him discuss his extra work. In the view of the accident employer, the worker s work from home could just as readily have caused the worker s hernia. [9] In the accident employer s Form 7 Report of Injury/Disease, dated May 13, 2008, it was stated that the worker called the employer on April 24, 2008 and said he wasn t coming back and the job was not for him. Accompanying correspondence includes an April 22, 2008 report by the worker that he was enjoying installation and was happy with the job. Also noted is the April 24, 2008 telephone call from the worker during which he stated he could not continue working due to upcoming surgery. [10] The accident employer asked that the Board conduct an investigation. The investigator s findings, dated June 9, 2008, included statements from the worker and several of the accident employer s personnel. The relevant portions of these statements are as follows: 1) The worker s statement OUTSIDE ACTIVITIES [The worker] indicates that he was doing some arm curls with weights in early April to build up his strength as he had been totally inactive for quite some time after his [pre-accident] surgeries and wanted to build up some arm strength. He did not strain himself in any way from that activity and he used hand dumbbells for that activity. WORK HISTORY He was on E.I. benefits and recovering from the prior surgeries and avoided any physical activity for quite some time after the [pre-accident] surgeries. He had done some installing of his own kitchen cabinets in the past and felt that he had the skills to do that type of work. He met with Ms C and had to negotiate to be paid at the rated DATE/HISTORY OF ACCIDENT/ONSET He was assigned to work with [Mr. A] and [Mr. Z] when he arrived for his first day on April 21 st. They loaded up kitchen cabinets for a full kitchen installation on to a van. The cabinets have a particle board core. They are shrink wrapped. They backed up to the jobsite a new home construction site. There were makeshift steps leading to a hallway and they unloaded and carried in the different sections. He was working with Mr. Z at that point and they then lifted a floor to ceiling pantry unit. They carried that piece through a garage door and then through a single door entrance. It was a two man lift and he indicates that the pantry unit was heavy and

4 Page: 3 Decision No. 1039/11 awkward to manoeuvre through the opening. The contractor was on site at the time and had to step aside as they brought the pantry in. He felt a definite strain to the right abdominal area as he assisted in bringing the pantry in place. He carried on working, removing the shrink wrapping and then assisting Mr. A in installing the cabinets. At the end of the day he felt a bulge to the right side and visually noted the bulge when he got home. The next day they loaded two kitchens and drove to [another location]. They unloaded and installed two kitchens, one a smaller kitchen and the other at a model home. The bulge became more noticeable with a toothache like pain. On Wednesday the work was lighter. They did repair work where cabinets were already in place and they installed crown moulding. WITNESSES AND REPORTING [The worker] indicates that he did not complain to the co-workers [Mr. Z] and [Mr. A]. After the initial onset he tried to protect himself from any heavy exertion. He felt that since he had not worked in any capacity in a long time that the problem would stabilize and that he would be able to continue working. He felt bad about the prospect of reporting an injury within such a short period of being employed and since he had negotiated the higher wage rate, and wanted to make a go of the job. He indicates that he did not realize that they would have to lift the cabinets to the jobsites but that they would already be in place On Thursday morning when he realized that he had a definite problem and the bulge had not reduced he called in to work and left a message on the cell phone of [Mr. C, the installation supervisor]. He indicated that he pulled something and that he had previous surgery in the fall, and was going to see his doctor to see if it was related. He did not receive a return call. [The worker] recalls calling back on Monday after seeing his doctor and leaving a message with the receptionist that he saw his doctor and was off with respect to a diagnosed hernia and then did not hear back from anyone. HEALTH CARE [The worker] saw Dr. Koole on April 25 th and gave the accident history. He had some reluctance about have a claim filed with WSIB given his short period of employment with [the accident employer] but the physician advised that given what he had described that they were required to file a report. PRESENT CONDITION/EMPLOYMENT He spoke with [Ms G, with the accident employer] on May 13 th and she was upset and quite vocal over the fact that he had filed a claim with WSIB. She felt that he had contrived the whole thing and that he had the problem before starting his employment and he advised that this was not the case. 2. The statements of the accident employer s personnel CO-WORKER CONTACTS INTERVIEW [Mr. Z] is a co-worker and he was reached by phone at work. INFORMATION PROVIDED

5 Page: 4 Decision No. 1039/11 (iv) He recalls delivering one kitchen unit with the worker but does not recall working with him beyond that. They loaded up and then unloaded a standard full kitchen of cabinets at a new home site. It was a two man lift to get the cabinets to the kitchen area. A pantry unit was included. He recalls that co-worker [Mr. A] showed up at the site to then do the installation end of it with the worker and Mr. Z went to another location. He does not recall the worker complaining of an injury or showing signs of an injury. EMPLOYER CONTACTS INTERVIEW I met with Mr. C and Ms G INFORMATION PROVIDED Ms G had interviewed the worker prior to his being employed with the company and the worker was insistent that he be paid at the rate $22/hour the rate for a skilled installer and that he could learn the job quickly. They have spoken with any employees who had contact with the worker during his 3 days of employment and no one had knowledge of him reporting and (sic) injury. He worked 9, 8 and 9 hours over the 3 days. Ms G recalls speaking with the worker at the outset of the second day on the job to see how things were going and he indicated that everything was OK. Mr. C recalls speaking with the worker by phone he believes on the Thursday of the week that he worked and the worker mentioned that he had previous surgery and his feeling was that this was a problem that the worker had prior to joining the company. The worker commented that he lifted something and felt pain and at the same time mentioned having surgery in the past. They feel he should have made it known to them that he had recent prior surgery when he was hired. There would be 2-3 man crews involved in the installations and they would work together in loading and unloading cabinets at the jobsites. The pantry sections would be 8 feet high, inches across and 12 inches deep. And all cabinets have a particle board core. Ms G advised that they would contest any allowance in this claim. Law and policy [11] Since the worker was injured in April 2008, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [12] Specifically, subsections 2(1) and 13(1) of the Act govern the worker s entitlement in this appeal. They state: 2(1) in this Act, accident includes, (a) a willful and intentional act, not being he act of the worker, (b) a chance event occasioned by a physical or natural cause, and

6 Page: 5 Decision No. 1039/11 (c) disablement arising out of and in the course of employment. 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision No. 8, would apply to the subject matter of this appeal: Policy Package No. 1, Initial Entitlement, Policy Package No 15, Hernia, and Policy Package No. 300, Decision Making/Benefit of Doubt/Merits and Justice. [14] We have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual ( OPM ) Document No. 1, Adjudicative Process, which states in part: Five point check system All adjudicators use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the five point check system. An allowable claim must have the following five points. an employer a worker personal work-related accident proof of accident compatibility of diagnosis to accident or disablement history Proof of Accident Some points adjudicators consider when examining proof of accident are Policy does an accident or disablement situation exist? are there any witnesses? are there discrepancies in the date of accident and the date the worker stopped working? was there any delay in the onset of symptoms or in seeking health care attention? OPM Document No , Hernias, which states in part: If a specific work-related muscular effort or incident causes or aggravates a hernia workers are entitled to benefits.

7 Page: 6 Decision No. 1039/11 Guidelines General Hernias can result from excessive strain or direct trauma. Types include inguinal, femoral, umbilical, hiatal, and incisional hernias. Inguinal hernias (around the groin) are the most common. Decision-makers may allow claims for work-related inguinal hernias if there is information on file confirming the diagnosis. For all other types of hernias, decision makers must consult WSIB medical staff before allowing claims. (v) The accident employer s witness [15] Mr. R provided testimony on behalf of the accident employer. He stated that he had been employed by the accident employer as an installer for four years and approximately one year prior to the worker s claim. Mr. R stated that the worker had only worked for the company for a couple of days, but could not initially recall with specificity, which of April 21, 22, and 23 he worked with the worker. Later in his testimony, Mr. R, in response to a question from the worker s representative, indicated that he thought he was present April 21. Mr. R stated that the worker did not help with loading or unloading; rather, the worker s job was that of helper and this involved passing tools and cleaning up in conjunction with the installations. Mr. R testified that he did not observe the worker lifting anything heavy, that being in excess of 25 pounds; the most he would lift was something like a baseboard. Similarly, the worker only lifted small things from the delivery trucks. [16] Mr. R stated that an installation usually involved three men with the two more experienced workers doing the heavy lifting. The third, in this case the worker, passed tools and performed clean-up duties. Mr. R stated that he did not hear the worker complain of anything and their relationship was cordial. [17] Mr. R was asked who was present with the worker and he stated that Mr. A and Mr. Z were on the site. Mr. R testified that there were four workers at the time, including him. He stated that Mr. A left the site when Mr. Z arrived. He also thought it was possible that the builder was present. When asked why he had not been interviewed by the investigator, Mr. R testified that he did not know. He also stated he did not know why Mr. C and Ms G did not mention his presence. Mr. R stated that the installation on the first day involved taking the unit through the front door of the new home build. (vi) The worker s testimony [18] The worker testified that he commenced work on April 21, 2008 at 8:00 a.m. and was not quite sure of what he was required to do. Regardless, it was his belief that he had been hired as an installer and not as a helper. Mr. C directed him to help load the kitchen unit, which was then moved from the showroom to the truck. He was then introduced to Mr. Z, who he helped load a second kitchen unit to be delivered to a second site. In total, he helped load two entire kitchens and it was the second unit that he and Mr. Z took to the site where he was injured. [19] The worker described this site as having a gravel driveway leading to the unloading entrance in the garage. In the garage, there were make-shift steps up to a landing in the kitchen. He stated that the builder was present inside the kitchen. The worker was on the back end of the

8 Page: 7 Decision No. 1039/11 unit as they approached the kitchen area. As he and Mr. C manoeuvred the unit into the kitchen, and as the weight of the unit was transferred to the builder on the leading end of the unit, the weight of the unit shifted and it was at this point that he felt the pop in his abdomen. The worker described the unit that was being carried as about the size of a refrigerator and, being made of particle board, weighing a couple of hundred pounds. The worker stated that after this lift, Mr. Z left and Mr. A arrived. [20] The worker stated that Mr. R was not present on April 21, the first day he worked. On April 22, the worker and Mr. A began the day by adjusting a kitchen unit that had already been installed. They then moved to a second location that required offloading of a kitchen unit by Mr. R, Mr. A and himself. This was his first and only encounter with Mr. R. [21] The worker was asked what prompted the report of his injury. He testified that his onset of pain was not immediate and that he performed similar duties the next day. On the third day, he experienced increasing pain, but wondered if he had suffered a muscle pull. He stated that he was concerned of mentioning an injury so early in his employment. He stated that when he did speak with Mr. C, he was told there were no light duties and was advised to inform the accident employer of the results of seeing his doctor. [22] The worker was asked about his prior surgeries. He stated that he did mention them to the accident employer, only because he was unsure at that time as to what the cause of his current problem was. Beyond that point, he had no contact with the accident employer. He also stated that there were no outside activities that might justify his injury. He stated that his prior conditioning efforts did not cause him harm and he conducted no business such as this outside his work activities. The worker testified that he had, in the past, hung three kitchen units in his own home and was an excellent carpenter, which he believed qualified him for the position as an installer with the accident employer. (vii) The accident employer s submissions [23] On the commencement of his closing submissions, which followed a brief recess in the hearing, the accident employer s representative indicated that the employer s employee at the hearing had left. The Panel asked the employer s representative if he wished to withdraw the appeal, however, he indicated he had no instructions to that effect and wished to proceed. The representative proceeded to provide his closing submissions. [24] The representative argued that the worker did not injure himself at work and did not do any heavy lifting as confirmed by the testimony of Mr. R. This was consistent with the statements of the accident employer s personnel to the investigator as were their statements of no report of injury by the worker. Added consistency could be found in the accident employer s Form 7 in which there was no complaint by the worker as late as April 23. As the worker was engaged in weight training prior to the date of his claim, this prior activity could easily explain the worker s injury.

9 Page: 8 Decision No. 1039/11 (viii) The worker s submissions [25] The worker s representative argued that worker s testimony with respect to the two man heavy lifting was consistent with the statement that Mr. Z gave to the investigator. As well, Mr. Z s statement that he left as Mr. A arrived was also consistent with the worker s testimony. These statements were inconsistent with the testimony of the accident employer s witness. It was clear that Mr. R was not present on April 21 when the worker first injured himself. As such, Mr. R s testimony should be considered less credible. [26] While the accident employer s Form 7 indicated that the worker had stated that the job was not for him, in contrast, Mr. C told the investigator that in his discussion with the worker on April 24, the worker stated he had injured himself following heavy lifting. While Ms G had advised the Board according to Memorandum 3 of May 12, 2008 that the accident employer had no knowledge of a workplace incident, this was contradicted by Mr. C s statement to the investigator that when he spoke with the worker on April 24, the worker had associated pain with lifting. [27] In the view of the worker s representative, the worker had consistently reported the events leading up to April 24, when he advised the accident employer he could no longer work due to his hernia injury. It was reasonable to accept the worker s reluctance to immediately inform the accident employer that he had been injured at the beginning of a new job. It was also reasonable for the worker to speculate about such possibilities as a muscle spasm or the effects of his prior surgeries prior to seeking medical advice on April 24. The medical evidence clearly supported that there was no other reason for the worker s injury other than lifting, causing his inguinal hernia. The worker s diagnosis was compatible with his accident history. (ix) Analysis [28] Pursuant to subsection 13(1), a worker who sustains a personal injury by accident arising out of and in the course of his employment is entitled to benefits under the insurance plan. Accident, as defined in subsection 2(1) of the WSIA includes, among other definitions, an accident that is a chance event occasioned by a physical or natural cause. There is no dispute that this appeal turns on the definition of the worker s accident as a chance event occasioned by a physical or natural cause. Where the dispute does lie, is in the question of whether proof that the worker sustained his hernia arose out of and in the course of his employment as a result of lifting heavy kitchen units on April 21, If it did, this would be consistent with the requirements of OPM Document No , which states that benefits are payable if a specific work-related muscular effort or incident causes or aggravates a hernia. [29] With respect to determining initial entitlement to benefits, OPM Document No sets out the Five Point Check System, a set of criteria applied by adjudicators for the determination of initial entitlement to benefits. Applying these points, there is no dispute that the worker is a worker and the accident employer is an employer as defined by the WSIA. [30] What is to be determined is whether there is proof an accident in which the worker suffered a personal work related injury on April 21, 2008 and whether the worker s diagnosis of inguinal hernia is compatible with the worker s accident history. The worker contends that this was the case. He argues that he developed the hernia as a result of the heavy lifting of kitchen

10 Page: 9 Decision No. 1039/11 units on his first day of work on April 21, The accident employer argues that the worker did not suffer a work related injury; rather, the accident employer contends that the worker s injury was the result of the weight training he did prior to his employment and/or the work he was doing separately from his home prior to his employment. [31] Adjudicators often turn to further considerations regarding proof of accident. Such factors include whether or not an accident situation exists; whether there were witnesses to the injury event; whether there was any discrepancy between the date of the accident and the date the worker stopped working, and whether there was a delay in the onset of the worker s symptoms and the date that he sought medical care. [32] In our view, there is no doubt that the situation in which the worker was working was one in which the potential for accident was real. Workers installing kitchen cabinets are required to load the units on trucks and unload them at the installation site. These units are comprised of particle board which is heavy and dense in nature and the worker indicated that they reasonably can weigh one or two hundred pounds. The exercise of loading and unloading these units from trucks is therefore strenuous, and as the accident employer points out, requires two men to complete the process. As well, the transport of the units into the sites they are made for can be challenging depending on the layout and construct of any given site, involving such things as negotiating stairs, entrance ways and corners within a given site. These challenges, in our view, constitute a very real potential for injury. [33] The worker did not report his injury immediately on April 21, but delayed reporting to Mr. C until April 24. The accident employer relies on this fact, noting the ample opportunity the worker had to discuss his problem at work on April 21, 22, and 23. The worker stated that he was reluctant to report his injury for several reasons. First, he was not sure of what was happening to him. He queried a number of reasons for the problem, including whether or not he had a simple muscle strain that would resolve on its own or whether there might be some connection to his earlier surgeries. As well, he was reluctant to complain of an injury when it had occurred on the first day of his new job. [34] We do not find the worker s reasons for delayed reporting to the accident employer unreasonable. The Panel finds it would have been a valid consideration that he did not want to report the injury on the first day of his new employment. More importantly, however, the worker was clearly unsure of what was happening to him. At the outset, he considered he sustained a muscle strain that he might have been able to work through. It is also reasonable to us that the worker, not clearly knowing what was happening to him, considered the possibility that there may be a link to his earlier surgeries. It was not until his pain increased and he noticed the bulge in his abdomen that the worker sought medical attention from Dr. Koole on April 24, 2008, at which time, the nature of his injury as an inguinal hernia was established. [35] Having identified the nature of his injury and being advised that he needed surgery, the worker immediately advised the accident employer on April 24. We can also understand how, on learning that the worker suffered an injury on his first day of work and the worker s reference to his need for surgery could have raised the suspicion of the accident employer at the time the worker reported the injury on April 24. In the overall result, however, we find the worker s three day delay in seeking medical attention, reporting the injury to his employer, and due to

11 Page: 10 Decision No. 1039/11 upcoming surgery, also advising the employer that he had to stop work, to constitute a reasonable set of circumstances justifying the delay. [36] Dr. Koole diagnosed the worker as suffering from an inguinal hernia. The clinical notes she attached to her Form 8 of April 25, 2008 indicate that the worker was suffering from the hernia related to lifting at work. Similarly, Dr. Gagic noted the worker s hernia in relation to lifting at work. Although Dr. Gagic noted the worker s prior surgeries, like Dr. Koole, he did not appear to have any difficulty relating the worker s hernia to the workplace injury on April 21, Neither of these reports queried any other cause of the worker s injury. As well, the medical reports which ascribe the injury to a work-related cause are consistent with the worker s testimony, his Form 6 and his comments when interviewed by the investigator on June 2, 2008 that his injury was the result of heavy lifting on April 21, As such, we find it reasonable to conclude that the worker s diagnosis of inguinal hernia was compatible with his accident history. [37] The question of proof of accident remains, however, given the differences in the information provided by the worker and the accident employer s personnel with respect to what actually occurred on April 21, There is no doubt, based on the submissions of the parties, that witnesses to the worker s accident were present. What is at issue, however, given the diverse information provided by witnesses, is a determination of the veracity of the witnesses statements. [38] Assessing credibility is a delicate exercise. Often, there is genuine disagreement as to the facts or to their interpretation. An individual may, quite naturally and honestly, wish to provide his or her perspective in the best possible light. This is by way of acknowledging that there are situations where strikingly different versions of events can be presented without loss of credibility to any of those offering a perspective. However, in the case before this Panel, certain versions must be preferred as more likely and/or more plausible than others. This is so because certain aspects of the events for the time in question are mutually exclusive and, even allowing for individual shading of memory or emphasis, cannot all be true. It follows that the Panel must carefully explain why it prefers the evidence that it does. [39] The worker s position is that when he started the job on April 21, 2008, he understood he was hired as an installer, but was not entirely sure of the exact duties he would perform that day. We note that the consistency in each of his Form 6, his statements to the investigator and in his testimony before us, the worker stated that his work as an installer involved the heavy lifting of kitchen units on April 21, We acknowledge that in testimony, Mr. R understood the worker to be performing the work of a helper, which involved passing tools and site clean-up duties. In reviewing the file documentation, we note the letter attached to the accident employer s Form 7, which indicated that the worker was hired as an installer, that the work of an installer was hard and that installation was a two to three man job. There is no mention of the position of helper or that the worker had been hired to perform the specific duties of a helper. As well, Mr. Z s statement to the interviewer describes the worker s lifting activities and makes no mention of any helper duties. As such, we find it more probable that the worker did perform the heavy duties as an installer on April 21, 2008 and prefer the worker s testimony over that of Mr. R.

12 Page: 11 Decision No. 1039/11 [40] There is also a discrepancy between the positions of the worker and the accident employer with respect to the actual events of April 21, The worker s representative raised the question of whether Mr. R had actually been working with the worker on that date. In this respect, Mr. R s testimony was somewhat unclear. Mr. R initially testified that he was unsure of the date that he worked with the worker. Later in cross questioning, he stated he thought he was present on April 21. [41] The accident employer s Form 7 states that Mr. R was a witness to the worker s activities on April 21. The investigator s report does not include an interview with Mr. R and Mr. R stated he did not know why he had not been interviewed. Neither of the interviews of Mr. Z or Ms G refers to Mr. R s presence at that time. Mr. C s statement to the interviewer was also silent in this regard. Mr. Z stated that installation involved a two to three man crew and that he and the worker unloaded the unit and then Mr. A arrived to assist with the installation. This was inconsistent with Mr. R. s testimony that his presence constituted four men involved in the installation on April 21. [42] Mr. R testified that the delivery of the unit took place through the front entrance of the new home build. The worker testified that in order to lift the unit, it was necessary to walk through the gravel driveway into the garage of the new home build and negotiate the unit up a set of make-shift steps into the kitchen. His testimony in this respect is consistent with what he noted on his Form 6 difficult lift of through garage entrance to the home and in his interview with the investigator when he stated: They backed up to the jobsite a new home construction site. There were makeshift steps leading to a hallway and they unloaded and carried in the different sections. He was working with Mr. Z at that point and they then lifted a floor to ceiling pantry unit. They carried that piece through a garage door and then through a single door entrance. It was a two man lift and he indicates that the pantry unit was heavy and awkward to manoeuvre through the opening. [43] There is nothing in the documentation of the accident employer that we can ascertain that confirms Mr. R s description of the delivery through the front door. Moreover, there is nothing in the accident employer s documentation that refutes the worker s several similar descriptions of the awkwardness of the delivery through the garage entrance. As such, we find that the delivery more likely than not took place as the worker described it. [44] In the overall result, we find the worker s testimony before us to be credible. His testimony in general was straight forward and absent any apparent embellishment. It was also consistent with what he recorded on his Form 6 and with his statement to the investigator. As such, we accept the worker s position that he worked as an installer on April 21 performing heavy lifting duties. We also accept that in the course of his claimed injury, he assisted in moving the unit into the new home build and in the course of it, had to conduct an awkward manoeuvre. In the course of doing so, the weight of the unit shifted on him at which point he experienced the pop in his groin. As discussed above, we find that the worker s delay in both

13 Page: 12 Decision No. 1039/11 seeking medical treatment for three days, and then reporting his inability to work on April 24, once he understood the nature of his injury and his need to surgery to be reasonable as well. We also find the initial diagnosis of Dr. Koole and subsequently that of Dr. Gagic of an inguinal hernia related to the worker s duties to be compatible with the worker s history of his accident. [45] As such, we find that proof of the worker s accident has been established. Accordingly, the decision of the ARO to grant initial entitlement to the worker is confirmed and the accident employer s appeal is denied.

14 Page: 13 Decision No. 1039/11 DISPPOSITION [46] The appeal is denied. DATED: June 20, 2011 SIGNED: W. Sutton, B.M. Young, K. Hoskin