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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE MATTER OF THE WORKMEN’S COMPENSATION ACT

WC 12 OF 2009

BETWEEN

LANA MARCANO

No. 317 Paria Avenue, Lange Park, Chaguanas

Applicant

AND

THE SECRETARY, SERVISAIR TRINIDAD AND TOBAGO LIMITED

First Floor, Main Terminal, Piarco International Airport, Piarco Respondent

*******************************************

Coram: Commissioner Master Martha Alexander

Appearances:

Mr Giri Dalbarry for the Applicant

Mr David West for the Respondent

REASONS

1. These reasons are given with respect to a decision rendered by the Commissioner of

Workmen’s Compensation on 9th June, 2011. On that date, it was ordered that the

respondent do pay the applicant compensation in the sum of $25,344.00 for injuries

sustained during the course of her employment, with costs to be taxed on the High Court

Scale.

2. By amended application filed on 23rd October, 2009 Ms Lana Marcano (hereinafter “the

applicant”) sought compensation under the Workmen’s Compensation Act Chapter 88:05

(hereinafter “the Act”), for personal injuries allegedly sustained at the Piarco International

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Airport, while working for Servisair Trinidad and Tobago Limited (hereinafter “the

respondent”). By her amended application, the applicant alleged that she was injured while

carrying out duties within the purview of her employment as a porter for the respondent.

The applicant’s claim for workmen’s compensation was in the sum of $38,016.00.

THE APPLICANT’S CLAIM

3. The instant claim for compensation arose out of an incident that occurred on Christmas

Day, 2007. According to the claim, on the 25th December 2007 at about 10:45 a.m., the

applicant was assigned as a wheelchair attendant to assist passengers on wheelchairs off

flights. By her application, she alleged that she lifted a wheelchair passenger’s suitcase and

placed it on the counter for examination by the customs officer when it slipped off the

counter. She claimed that she grabbed the handle of the suitcase but she was jerked

forward and immediately felt a severe pain from her neck straight down her back and chest.

In her viva voce evidence, she described the incident thus:

“I lift the second suitcase off the trolley. When I saw how heavy it was I used my left leg to lift it, then the

suitcase slipped off the counter to the floor so I grabbed the handle because I didn’t know if there were things

to mash up and I be liable. So I grabbed the handle and it tugged me forward so I bawl out and the

customs officer said ‘Oops! Be Careful.’ I bawl out because I felt a pull from the back of my neck. I still

put it up on the counter. While waiting, I followed normal procedures and open it waiting for him to finish

his checking. After that I felt a hot pain in my back and spinal area.”

4. The applicant was subsequently diagnosed as having sustained muscular strains to the neck

and back and assessed to have twenty two per cent (22%) disability and medically unfit to

work.

5. The issues to be determined as set out in the application are as follows:

(a) Whether the applicant is a workman within the meaning of the Act

(b) Whether the respondent is liable to pay any compensation

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(c) What amount of compensation is due or any part thereof and whether the applicant is

entitled to sick leave and/or other benefits

(d) Whether the accident occurred during the workman’s employment

Was the applicant a workman within the meaning of the Act?

6. In its answer filed on 10th February, 2011 (hereinafter “the answer”), the respondent stated

that the applicant was employed on 16th October, 2007 as a part time, “On Call”

Wheelchair Assistant/Cabin Groomer. This was based on an agreement dated 16th

October, 2007 indicating an effective appointment date of 17th October, 2007, in the

position of a Wheelchair Assistant/Cabin Groomer (“the agreement”). Reference was

made in the agreement to the applicant’s salary being subjected to the mandatory salary

deductions for NIS and Health Surcharge. Under cross examination as to whether she was

working with the respondent for three months only when the accident occurred, the

applicant insisted that she was working for three years and had completed her probation

long before the accident.

7. According to the Workmen’s Compensation Act Chapter 88:05 a “workman” is defined as,

“any person who has entered into or works under a contract of service or apprenticeship with an employer,

whether by way of manual labour or otherwise … and whether such contract is expressed or implied, oral or

in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week,

month or with reference to any other period whatever; …”. For the purposes of the Act, the

following persons are deemed not to be workmen:

(a) persons employed otherwise than by way of manual labour whose earnings exceed five thousand

dollars a year;

(b) persons whose employment is of a casual nature and who are employed otherwise than for the

purposes of the employer’s trade or business, …;

(c) outworkers;

(d) members of the employer’s family dwelling in his house;

(e) members of the Defence Force of Trinidad and Tobago and any auxiliary force attached thereto; or

(f) members of the Police Service and members of any Police organization or of any Fire Service.

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Based on the above and the evidence led, the Commissioner was satisfied that the instant

applicant was employed for the purpose of the respondent’s business, performing manual

duties, and is a workman as defined within the Act. See Arjoon Ragoobar v Indra Persad

Limited WC 2 of 1994 and Frankie Caton v Trinidad Cement Limited WC 5 of 1994.

Whether the respondent is liable to pay any compensation

8. Section 4 (1) of the Act states:

If in any employment personal injury by accident arising out of and in the course of the employment is caused

to a workman, his employer shall, subject as mentioned below be liable to pay compensation in accordance

with the following provisions:

Provided that-

(a) The employer shall not be liable under this Act in respect of any injury which does not disable

the workman for a period of at least three days from working for full earnings at work at

which he was employed;

(b) If it is proved that the injury to the workman is attributable to the serious and wilful

misconduct of that workman, any compensation claimed in respect of injury shall, unless the

injury results in death or serious and permanent disablement, be disallowed.

9. The respondent denied the allegation that the injury occurred in the manner described by

the applicant and noted that the applicant filed for compensation while she was still

working with the respondent. There was no evidence provided or any alternative

explanation as to how the alleged injury occurred, save and except the evidence of the

medical expert called on behalf of the respondent (discussed below).

10. In response, it is the applicant’s evidence that she was employed with the respondent at the

time of the accident as a wheelchair attendant and that the Christmas Day 2007 accident

occurred during and in the course of her employment. On the date of the accident, she was

assigned that morning to take a passenger on a wheelchair off a flight. The passenger only

had his hand luggage on him on the wheelchair. It is also her evidence that it is the norm

that wheelchair passengers only carry their handbags. When the applicant arrived at the

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customs desk with the passenger, the customs officer asked her to open the passenger’s

suitcases for examination. Upon lifting the passenger’s second suitcase, she sustained the

injuries that formed the basis of the instant claim. These injuries have resulted in the

applicant experiencing pain from the neck radiating down her lower back and occasionally

down her left lower limb. As a result of the injuries, the applicant had cause to visit a

doctor in the Accident and Emergency Unit in Chaguanas. She was then referred to the

Mt. Hope Hospital to be x-rayed and where her neck was placed in a brace. The applicant

had two sessions of physiotherapy but defaulted because of financial constraints.

THE MEDICAL EVIDENCE

Medical Report of Dr Neil Persad

11. The applicant gave evidence that she visited Dr Neil Persad who did an MRI and

concluded that she was medically unfit. Dr Persad’s report on the applicant’s condition is

dated 14th October, 2008 and indicated that she complained of pain from the neck radiating

down her lower back and occasionally down her left lower limb; numbness on the left

lower limb and sole of left foot and weakness; neck pains radiating to the left shoulder with

associated paresthesiae and numbness of the fingers on the left hand.

12. The critical part of Dr Persad’s report stated as follows:

Examination revealed her cervical spine range of motion to be reduced in all directions with about 60% of

the expected range … She was moderately tender over the cervical spinal processes and para vertebral

muscles with moderate cervical muscle spasm. There was also tenderness over the lower lumbar spine with

milder lumbar muscle spasm … An MRI on September 29th 2008 of the cervical spine showed evidence of

cervical spondylosis with degenerative changes that were moderate to severe. There was multiple disc disease

noted. At the C2/3 level there was a broad based central disc protusion, causing mild indentation of the

thecal sac. At the C3/4 there was also broad based central disc protusion, causing mild narrowing of the

spinal canal. At C6/7 level there was another broad based central disc protusion causing mild narrowing

of the spinal canal. A lumbar spine MRI on the same date showed mild diffuse bulges at the L4/L5 and

L5/S1 levels with indentation of the thecal sac and mild narrowing of the spinal canal at L5/S1.

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The above clinical findings are consistent with soft tissue type injuries to the spine. The history of the stated

mechanism and the clinical findings are consistent. It is my opinion that she is not at maximal medical

improvement and would benefit from treatment with formal supervised physiotherapy. Her present disability

is estimated at twenty two (22%) percent.

Medical Report of Mr Rupert Indar JR

13. On the behest of the respondent, the applicant was examined by Mr Rupert Indar JR for

the purpose of a medical assessment. His report dated 22nd November, 2010 stated, “I have

reviewed the MRI scan of her Cervical and Lumbar region done from 2008. It evidently shows evidence of

some cervical spondylosis and multi-level minor degenerative changes of the lumbar spine. These MRI

changes appeared mostly long standing and certainly not as a result of this accident.”

14. He further stated in his report that he was in total agreement with Dr Neil Persad’s clinical

findings of soft tissue injuries. His prognosis was that there seemed to be no improvement

and it was unlikely that she would return to her pre-accident level. He concluded, “I will put

this injury as a purely musculo-ligamentous injury and I believe at a disability estimated to be

22%, she should now be considered medically unfit to work.”

15. Mr Rupert Indar JR also gave viva voce evidence which was tested under cross

examination. He stated in his evidence in chief that the applicant’s cervical spondylosis was

age related and degenerative and could be triggered by a high level of manual work,

spending a long time sitting at a desk, weight gains or genetic links. It is his evidence that

the applicant’s injury on the job would not have caused cervical spondylosis but rather, the

changes on the MRI were age related and long standing. He stated further that, “the injuries

may have exacerbated it and threw her over the edge.” It is his evidence also that surgery would not

have helped and that the applicant, “cannot do her current duties.”

16. Under cross-examination, he maintained that cervical spondylosis is a global diagnosis for

an age related and degenerative condition and that there is no correction for this, as surgery

would only make the patient worse. He maintained further that the applicant’s injury may

have made her pre-existing condition worse and hastened its onset. He explained it thus,

“[Y]es the injury may throw a pre-existing condition over the edge. If you have mild symptoms, it can make

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the problem worse.” It was also his evidence under cross-examination that the applicant’s

cervical spondylosis was made worse by the lifting of heavy suitcases on a daily basis and

confirmed that he agreed with the findings of Dr Persad as to a disability of 22%.

17. In its answer, the respondent sought to rely on the findings and unchallenged evidence of

Mr Rupert Indar JR, who examined the applicant for the purpose of a medical assessment

provided in November 2010, which clearly stated that, “[T]hese MRI changes appeared mostly

long standing and certainly not as a result of this accident.”

18. I appreciate that the applicant had a pre-existing condition of cervical spondylosis and that

it is an age related and degenerative disease. I also accept that the injury sustained by the

applicant in the course of her employment with the respondent would have exacerbated the

condition. This was confirmed by the evidence of Mr Rupert Indar JR. Did the pre-

existing condition cause the injury suffered by the applicant? I find on the evidence that it

did not. It is clear from the medical evidence of the respondent’s witness that the applicant

sustained soft tissue injuries or what he described as “a purely musculo-ligamentous injury.” The

injury sustained by the applicant in the course of her employment had a debilitating effect.

It in fact hastened the onset of the pre-existing condition/cervical spondylosis. The

condition was amplified to such an extent that the applicant now suffers with symptoms of

the disease currently rather than at a later stage in her life. I am satisfied on the evidence

that the Christmas Day, 2007 accident caused the injury suffered by the applicant, but not

the cervical spondylosis which was a pre-existing condition.

The Court of Appeal decision of Super Industrial Services Limited v Enrico Penco CA

No 83A of 2000 provides some useful guidance in this regard. In that case, the issue was

raised as to whether on the evidence led before the Commissioner, the workman had

proved on a balance of probability that the accident, which occurred while he was at work,

caused the injury he suffered or was due to a pre-existing Marfan’s Syndrome. Kangaloo

JA found that based on the medical evidence, it was reasonable for the Commissioner to

conclude that the accident had caused the injury in that case.

19. The respondent stated that no medical report was submitted to the company before the

filing of the claim. It also called into issue the fact that the applicant filed for compensation

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pursuant to the Act whilst she was still working with the company. This is not denied by

the applicant who gave evidence that due to financial constraints she had to return to work.

Further, Dr Persad’s report stated that, “[H]aving resumed work, she has had to take multiple

periods of sick leave because of symptoms from her neck and back.”

20. This Commissioner finds that the submissions as put forward in the respondent’s answer

have no effect on the validity of the applicant’s claim. The evidence given by the applicant

was sufficiently convincing and, as such, I find it reasonable to conclude that the applicant

was acting in the course of her employment when she was injured and, therefore, the

respondent was liable to pay her compensation.

Notice

21. Also in issue was the question of notice. Section 11(1) of the Act provides that proceedings

for recovery of compensation for an injury under this Act, “shall not be maintainable unless

notice of the accident has been given as soon as practicable after it has happened and before the workman has

voluntarily left the employment in which he was injured, …”

Did the applicant satisfy the stipulated conditions under section 11 of the Act for

making a claim for compensation for injuries sustained during the course of her

employment?

22. There are two requirements to be satisfied by a workman before filing an application for

workmen’s compensation:

i. The workman must give notice of the accident as soon as possible after it has

happened; and

ii. The workman’s claim for compensation with respect to the accident has to be made

within one year from the date of the accident.

It is to be noted that any defect or inaccuracy in the notice is not a bar to the maintenance

of the proceedings if it could be shown that the employer “had knowledge of the accident

from any other source at or about the time of the accident.” In its answer, the respondent

indicated that the claim for compensation was filed on 19th November, 2009 claiming 22%

disability, whilst the applicant was still working with the company. The issues of notice of

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the accident not being given to the respondent or no claim for compensation being made

within the requisite timeframe were not raised expressly. Nevertheless, for completeness

these are dealt with below.

23. With respect to the giving of notice of the accident to the respondent, the applicant gave

evidence that on the day of the accident, she verbally informed Mr Arnold Pitt, the co-

ordinator of the respondent company of the incident and requested compensation for same

but did not receive any compensation from the respondent. This was confirmed in cross

examination when the respondent, through the applicant, tendered a copy of the said notice

of the accident provided to it into evidence as “TM3”

24. With respect to the claim for compensation, the case law has settled that this need not be in

writing or for a specific sum once it is made clear to the employer that a claim is being

made. See Craig v Crypte Electrical Co Ltd (1922) 15 BWCC @ 71 where Lord

Sterndale MR opined, “A claim is not necessarily the beginning of proceedings; it need not be in writing

and need not be for any specific sum; but although those considerations are not essential, it must be made

clear to the employer’s mind that a claim is being made.” This approach has been confirmed locally

in Terry Hollis Joseph v H & A Hardware and Supplies Ltd WC 1 of 2005. In the

present facts, there seems to be no doubt that a claim was made by the applicant.

25. Further, there is a distinction between making a claim for compensation within the one year

stipulated time period and actually filing the application pursuant to the Act, as illustrated in

Powell v The Main Colliery Co Limited [1900] AC 366, which has largely settled what

constitutes a claim for compensation under the Act. Further, in the local case of Rupert

Edwards v. Dipcon Engineering Services No. WC 157 of 1990 Master Doyle stated,

“[I]n my respectful view a distinction exists between the claim for compensation made to the employer and

the commencement of proceedings for the recovery of compensation under Section 11 of the Act- in the former

there is a limitation period (subject to the proviso) but in the latter, there in none.”

26. It is also the applicant’s evidence that in January, 2008 she made a claim for compensation

to Mr Anthony Wells, the Human Resources Manager, but has to date not received any

compensation. She gave evidence that initially she was bedridden after the accident and

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could not move on her own. It is also her evidence that she returned to work in or around

April, 2008 because she needed to for financial reasons.

27. Under cross examination the issue arose as to whether the proper internal procedures for

making a report (giving notice) were followed by the applicant. In her evidence, she stated

that after she had taken the passenger to his family, she went back to the office and

immediately reported the incident to the co-ordinator, Mr Arnold Pitt, who observing her

to be in pain instructed her to swipe out and go home. She also gave evidence that before

she left the compound on the day of the accident, Mr Pitt made her do a report. This

report was submitted to both co-ordinators (Mr Arnold Pitt and Mr Aziz) on the same day

of the accident. When questioned under cross examination as to whether both co-

ordinators had signed the report, as was required, she stated, “both signed the report before I left

the compound.” When shown a copy of the report, which was tendered into evidence, it

reflected only the signature of the applicant. The applicant stated, “something is wrong with

this, Mr Pitt and Mr Aziz signed the report.”

28. I had the opportunity to observe the applicant under cross examination and I found her to

be a witness of truth whose evidence was given in a straightforward and direct manner, in

my view, to the best of her ability. She seemed genuinely surprised that the report tendered

into evidence by the respondent did not bear the signatures of the two co-ordinators. I

note also that the report tendered into evidence and marked ‘LM3’ was a photocopied

document. It was not the original report. No reasons were proffered as to why the original

report was not made available. Further, neither Mr Pitt nor Mr Aziz were called as

witnesses in support of the respondent’s case that the proper protocols were not observed

by the applicant in giving notice of the accident. It was open for these witnesses to be

called but this was not done.

Given that as well as my findings that the applicant was not by her evidence dishonest, I

was minded to believe the evidence of the applicant that she had followed the proper

internal procedures and protocols on the day of the accident and that on the day of the

accident she had witnessed both co-ordinators appending their signatures to the report.

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Whether the accident occurred during the workman’s employment

29. The respondent has led no evidence that the applicant, at the time of the accident, was

engaged in work outside the scope of her contractual duty or employment and that the

accident did not arise out of and/or in the course of her employment. In Sundra

Deonarine (Administratrix of the Estate of Rakesh Deonarine) and ors v Cornbird

Transport Limited WC 7 of 2004 a workman was engaged in the manual labour of

collecting, trimming, transporting cane to Caroni on a truck and tasker owned and serviced

by the respondent company. No evidence was led by the respondent company in that

matter with respect to the averment that the accident did not arise and /or occur out of the

deceased’s employment. Commissioner Doyle found as a fact that the workman was doing

what he was employed to do when he sustained the injuries.

Given the evidence of the applicant, which is accepted, it is clear that the injury to the

applicant was due to an external mishap unrelated to her pre-existing condition and which

was sustained as a result of the performance of her duties, during the course of her

employment, for which she must be compensated.

The compensation payable

30. In conclusion, this Commissioner notes the dicta of Lord Brampton in Powell supra at

page 378, “With the notice of the accident, the claim and the power to examine the appellant by a medical

practitioner, the respondents had every opportunity that could be afforded them of forming an opinion as to

the legality and reasonableness of the claim and offering compensation to the appellant, which offer, if the

appellant thought fit to accept it would at once have terminated the claim by agreement and obviated the

necessity of any arbitration at all. No agreement, however, was come to, for the respondents repudiated their

liability and thereupon questions arose between the parties which could only be settled by an arbitration

under statute.” [Emphasis mine]

31. As stated above, the applicant did not come across as dishonest or a person who was

exaggerating the circumstances of her accident in an attempt to benefit financially. It was

thus the findings of this Commissioner that compensation was due and payable to the

applicant for the injury she sustained in the course of her employment with the respondent.

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32. The applicant received an average salary of $120.00 per day and claimed entitlement to a

lump sum of $38,016.00. At the time of filing this application, the respondent had not paid

any compensation to the applicant.

33. An order was thus made in favour of the applicant against the respondent in the sum of

$25,344.00 for injuries sustained during the course of her employment.

Dated 8th February, 2012

Martha Alexander Commissioner Judicial Research Assistant: Ms Kimberly Romany

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