The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 10, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on February 10, 2000.

Issue

Whether or not the claim is acceptable.

Decision

The claim was acceptable.

Background

In July 1996, the claimant submitted an application for compensation benefits indicating that she dislocated a disc and punctured a nerve in her back from cleaning/vacuuming an apartment. The accident was reported to the employer on June 25, 1996.

In a sworn statement, dated August 21, 1996, the claimant advised a Workers Compensation Board (WCB) field representative that she never had back problems before this claim. For the past 3-4 years she had been cleaning 4-5 apartment blocks in Brandon. She was paid by salary and worked when required, averaging around 8 hours per day. Her work involved cutting grass, showing suites, vacuuming the halls and suites. She and her husband both did light repairs/painting of the suites at the end of the month or as required.

The claimant indicated that she was not sure exactly what date she first started having problems with her lower back, but she did seek medical attention in late May 1996. On that visit she was given a prescription for pills and x-rays were taken. On either June 10, 11 or 12, 1996, she was vacuuming at one of the blocks and her whole left leg went completely numb and she could barely move. She rested for the day and next day went back to work when the same thing occurred.

A doctor's first report, dated July 31, 1996, indicated that the claimant experienced a gradual increase in back pain since around the end of May 1996. Medical information also revealed that the claimant underwent a CT scan of the lumbar spine on July 2, 1996, and an L4-L5 disc protrusion was identified. On July 7, 1996, the claimant underwent a left L4-5 discectomy.

On August 30, 1996, WCB Claims Services determined that the claim was not acceptable as the claimant was unsure when the injury occurred or what may have caused her back problem. Medical reports provided no history of a work related injury. Claims Services could not substantiate that the worker suffered a personal injury due to an accident arising out of and in the course of her employment. On December 3, 1996, a worker advisor appealed this decision to Review Office based on Section 4(5) of the Workers Compensation Act (the Act).

Taking into consideration Sections 4(1) and 4(5) of the Act, Review Office determined the following on December 20, 1996:

• that the claimant's low back problems which apparently became evident about May 1996, had not been attributed to a workplace accident or hazard;
• that the back problem did not qualify as a personal injury by accident arising out of and in the course of employment; and
• that the claimant was not entitled to benefits.

Review Office did not find that the claimant's low back problem was associated with any particular accident or hazard identifiable with her employment. The general work activities were not considered by Review Office to be a known risk for injury to the lumbar discs, and there was no specific event which precipitated the onset of low back symptoms. Review Office was of the opinion that the predominant information suggested that the claimant had a longstanding problem associated with the L4-5 disc. This apparently became symptomatic about May 1996 and available information did not show that the onset of symptoms either arose out of or in the course of employment.

On April 20, 1999, a worker advisor appealed Review Office's decision and provided a report, dated February 11, 1999, from the treating physician. The physician indicated that the claimant came to his office on June 7, 1996, with a three day history of pain in her left leg, knee, thigh, hip and back. "This would date her injury to roughly June 4."

The worker advisor further indicated that some of the information contained in the claimant's statement of August 21, 1996, was incorrect. The claimant provided the following commentary in this regard:

"I was moving and cleaning things in two apartments on a day in late May 1996. I helped my husband move stove, fridge and carry five gallon paint cans. My back became painful through the day. I went to straighten up from vacuuming and felt a severe pain in my lower back and fell down. My leg went numb. I called for my husband and he had to help me. When the pain got so bad I went to the doctor in early June 1996."

The claimant believed that the scanty information submitted in the November 28, 1997 report from her doctor and her August 21, 1996 statement were the result of her limited understanding and ability to communicate in the English language. It was the claimant's position that the additional information concerning the events preceding her injury and the medical information provided by her doctor gave support to her contention that the June 26, 1996, injury was the result of her workplace duties.

On May 5, 1999, Review Office advised the claimant that it was unable to determine her work injury had more likely than not resulted from "increased risks" arising out of and in the course of employment. The recent information did not convince Review Office to change or alter its previous decision.

On June 28, 1999, the worker advisor presented additional medical information, dated June 21, 1999, which supported that the claimant's low back injury was caused by an accident arising out of and in the course of employment. The following portion of the neurosurgeon's letter was quoted by the worker advisor, "The disc fragment was not the cause of the disc protrusion. Rather a disc protrusion at L4-5 resulted in a sequestered fragment in that area.In my opinion, it is probable that the sequestered disc resulted from her workplace duties."

On August 31, 1999, Review Office wrote to the claimant and the worker advisor stating that the initial historical evidence did not support a causal connection between the low back injury and a work related accident. Review Office was of the belief that the historical information initially provided by the claimant was more reliable than the changes in historical information subsequently provided by the worker advisor. Review Office therefore determined that no change would be made to its original decision.

In a further submission, dated September 30, 1999, the worker advisor requested Review Office to reconsider its August 31, 1999 decision. On November 5, 1999, Review Office wrote to the worker advisor indicating the submission provided no additional information that had not previously been available to Review Office. The case was then forwarded to the Appeal Commission for consideration and an oral hearing was held on February 10, 2000.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

The claimant gave evidence at the hearing with respect to her job duties as a caretaker. These duties included amongst other things: daily maintenance in terms of cutting the grass in the summer, cleaning the laundry rooms, vacuuming the stairs, cleaning windows and cleaning doors; on a monthly basis moving fridges, stoves, washers, dryers, cleaning underneath and behind, painting and carrying paint equipment.

The claimant was asked to describe the events surrounding her May 1996 injury. Her response provided through an interpreter was as follows:

"Okay, May 1996, Ms. [the claimant] was helping her husband in cleaning an empty unit, they were repainting it. She was helping her husband carry in the paint gallons and helping him with the paint.

As he was painting, she went ahead and moved the stove and the fridge and the washer and dryer. She moved those so she could clean under and behind them.

She had proceeded to vacuum. She vacuumed the first room and everything was fine. And as she was vacuuming the second room, she felt an immediate, or a sudden cramp to her left side, the entire left side of her, and it was a sharp cramp.

And she said she then yelled, her husband came to get her and she felt numb after that."

The claimant later testified that the vacuum she was using was a steam cleaner type designed for cleaning rugs.

The claimant's left-sided sciatica became quite severe and this resulted in her being admitted to hospital. A CT scan revealed the presence of a large left-sided L4-L5 disc herniation. Decompression was carried out in a Winnipeg hospital on July 7th, 1996. The operative findings were as follows: "There was a fair sized, sequestered disc fragment inferior to the disc space in the left L4-5 gutter. Because of the relatively small size of the lateral recess, this was causing compression on the left L5 root." According to the evidence, the claimant's left leg pain had persisted for approximately a month prior to her admission into hospital for surgical intervention. The evidence also confirmed that the claimant had no prior medical treatment for similar symptomatology and that the claimant had no pre-existing or degenerative condition.

In light of the evidence together with the fact that the surgery took place so soon after the alleged accident, we find, on a balance of probabilities that the claimant's disc problem occurred as a result of an accident arising out of and in the course of her employment as a caretaker. Accordingly, the claim is hereby acceptable.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of February, 2000