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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