The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 7, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 7, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In November 1997, the claimant filed a claim for compensation benefits indicating the following:

"While cleaning showers in men's locker room, suffered sharp pain down to waist. After weekend both legs had tingling sensation. Dr. [name] advised me to see family doctor which I could not see till Nov. 4/97. Had previous appt. Oct. 31 which was cancelled due to dr's illness."

The claimant stated that he advised his supervisor that he had trouble completing his shift and that his condition worsened over the weekend. The date of accident was recorded as October 15, 1997.

Initial medical information consisted of written chart notes commencing with October 23, 1997. At this time the physician recorded that the claimant had difficulty with both knees and his lower back since October 14, 1997 and that he was unable to work as of October 17, 1997. At the next visit on October 27, 1997, the claimant advised the doctor that nothing had changed. The claimant now had neck pain from the left neck to shoulder to mid back. There was no known event, "I quite often have trouble - do not know what it is."

On December 18, 1997, a WCB field representative obtained a sworn statement from the claimant. The claimant stated that he was fine at the start of his shift on October 15, 1997. At approximately 7:30 - 8:00 p.m. he was cleaning tiles with a rag in the men's locker room when he twisted to the left and felt a sharp pain to the back of the neck that went down behind the left shoulder blade and down to the mid back area. The claimant indicated that he worked alone and after feeling the sharp pain he had trouble turning his head. He continued working until the end of his shift and when he handed in his keys he told [name of housekeeping supervisor for night shifts] that he got a pain when working in the men's locker room but never documented anything. The claimant stated that he worked Thursday and Friday and the symptoms became worse. The pain radiated down to the lower back and down both legs, mostly the left. He never said anything at work about the ongoing symptoms as he thought with the weekend coming up he would rest up and be fine.

Over the weekend, the claimant indicated that his pain became worse. He called his doctor for an appointment and the earliest appointment date he could get was October 23, 1997. He then called work and spoke with the desk person but could not recall whether he mentioned a work injury. He did ask what he had remaining for sick time. The claimant indicated that he never gave any details of what the injury was but just that he couldn't walk.

The claimant further indicated in his statement that he told his doctor on October 23, 1997 he had hurt himself when cleaning the showers on October 15, 1997. The doctor told him to stay off work and to see his family doctor. An appointment was made with the family physician for October 31, 1997, but the appointment was cancelled due to the doctor's illness. A new appointment was arranged for November 4, 1997. It was at this time when the claimant was advised by his doctor to put in a claim for compensation.

A sworn statement was obtained from the housekeeping supervisor dated December 23, 1997. She advised that at no time did the claimant report a work related injury to her. She did state that the claimant had spoken about a back problem for a couple of years now but that he never said if it was work related or not.

A sworn statement was obtained from the scheduling clerk on December 23, 1997. She noted that the claimant called work on October 20, 1997 to say he was booking off sick. At no time did he mention that it was for a back injury or that there was an accident at work.

On January 22, 1998, WCB's Claims Services determined that the claim for compensation was not acceptable based on the following reasons:

• the claimant indicated in his sworn statement that he spoke to his supervisor at the end of his shift and advised him that he experienced pain when working in the men's locker room. This was contrary to the supervisor's statement in which she indicated that at no time did the claimant report an accident.
• medical information indicated that the claimant did not know what was the cause of his problem.

Claims Services therefore concluded the evidence did not establish that an injury occurred at work. This decision was appealed by the claimant's union representative on June 13, 2000.

In its decision of July 7, 2000, Review Office confirmed that the claim for an accident occurring on October 15, 1997 was not acceptable. Review Office indicated that the statements provided by the worker and his supervisor were contradictory and that the worker clearly told his attending physician that there was no known event to which he could attribute his complaints. Review Office found that it had not been established that the worker sustained an accident at work on October 15, 1997. On August 16, 2000, the union representative appealed this decision to the Appeal Commission and an oral hearing was held.

Reasons

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

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease and as a result of which a worker is injured.”

The claimant testified at the hearing that while in the process of cleaning showers in the men’s locker room on October 15^th, 1997, he twisted to his left and felt a sharp sudden pain in his neck. He also advised that the pain radiated down into his left shoulder area and that the pain became progressively worse over time. The claimant further testified that he had in fact told both the employer’s physician and his supervisor about the incident.

The evidence revealed that the claimant has had a chronic bad back since suffering from a bout of polio back in the early 1950’s. He made it perfectly clear during his testimony, however, that it was his neck and shoulder, which were the sources of his problems following the October 15^th incident and not his knees or low back.

The claimant initially sought treatment from one of the employer’s physicians shortly after the alleged incident. According to the physician’s chart notes dated October 23^rd, 1997, the claimant presented with a tender cervical spine and decreased range of motion but with no apparent neurological deficit. The employer’s physician again saw the claimant on October 27^th, 1997 at which time he recorded in his notes: “Nothing has changed – Now neck is bad Left neck to shoulder to mid back.”

We are satisfied based on a preponderance of evidence that the claimant did injure his neck and shoulder as alleged. In arriving at our decision, we attached considerable weight to the physician’s progress notes, which referenced the neck and shoulder difficulties following the date of injury. Accordingly, we find the claim to be acceptable and the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 23rd day of January, 2001