What the panel treated as outcome-determinative, and which side it favoured.
Applicant's observed low literacy and communication skills, including inability to spell his own name, supported his credibility despite inconsistencies in testimony.
Favours Applicant prevailed
This observation allowed the WCJ to reasonably explain variations in Applicant's testimony and find him credible.
From the decision · page 8Applicant testified credibly at the time of trial. He was calm and respectful through
questioning. He appeared to put forth best effort to answer the questions. What was conspicuously
obvious to the undersigned during the trial was Applicant's inability to understand and answer
questions. Defendant argues that there was no evidentiary record establishing Applicant's literacy
level. This statement is erroneous. His literacy level was evidenced by his inability to spell his
own name. However, even absent this patent revelation on the record, the court is able to make a
reasonable inference based upon observations at trial. Defendant also argues that a certified
interpreter was present mitigating any language barrier. The fallacy herein was also demonstrated
on the record when Applicant testified that he injured his waist. It was not until further probing
by the attorneys, a physical demonstration in the courtroom, and discussion off the record, that the
court was able to ascertain that Applicant was referring to his back as `waist'. An interpreter cannot
account for cultural variances nor is an interpreter the solution to an Applicant's inept
communication skills and literacy level.
Testimony from Martha Rocha that Applicant complained about knee and sciatic pain possibly as early as April 2021 supported timely reporting of injury despite Defendant's argument of late reporting.
Favours Applicant prevailed
This testimony countered Defendant's late reporting argument and supported the finding of industrial injury.
From the decision · page 8Defendant presented three witnesses at trial. Most probative to the issue of late reporting
was the testimony of Martha Rocha the Food Service Program Manager. She testified that
Applicant complained to her about knee and sciatic pain and she told him to go see a private doctor
and that this conversation could have happened as far back as April. (MOH/SOE supra at p. 11:20-
23).
Dr. Smith's medical report and deposition confirmed findings consistent with the claimed injury and opined it was reasonably medically probable the Applicant could have injured his back and knee.
Favours Applicant prevailed
This medical opinion was relied upon as substantial evidence supporting the finding of industrial injury.
From the decision · page 4Dr. Smith issued his initial report after an evaluation on October 25, 2021. (Joint Exhibit
Y). In Dr. Smith's report, the mechanism of injury is described as occurring on April 6, 2021,
while carrying a container weighing approximately 180 to 200 pounds from one vehicle to another
when he felt a pinch in his back and a crack in his left knee and left foot. Id. at p. 3. Dr. Smith
diagnosed Applicant with a left knee meniscus tear and lumbar strain disc bulge. Id. at p. 18.
Dr. Smith also reported symptom magnification or malingering and multiple medical symptoms
not related to work injuries. Id. However, he ultimately concluded that the back and left knee
symptoms, impairment and findings are consistent with the injuries claimed by the Applicant. Id.
at p. 19.