The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 12, 2001, at the request of the claimant. The Panel discussed this appeal on February 12, 2001.

Issue

Whether or not responsibility can be accepted for the claimant's back and left hip problems as being related to the compensable injury of May 6, 1998.

Decision

That responsibility can be accepted for the claimant's back and left hip problems as being related to the compensable injury of May 6, 1998.

Background

On May 7, 1998, the claimant filed an application for compensation benefits for a work-related injury that occurred on May 6, 1998. The claimant described the injury as follows:

"My steel toed shoe got caught in a wooden pallet as I was turning. My foot was stuck but my body was in motion and I fell to the cement floor hitting my head, shoulder, and falling on my hand."

A Doctor's First Report dated May 6, 1998, described the worker's history of injury as follows: "caught steel toe in palette. Hit head, twisted knee. Landed on L hand today at work." The diagnosis was a possible scaphoid fracture. Follow up reports from the attending physician between May 6, 1998 and June 15, 1998, all pertained to the claimant's left wrist status. On June 19, 1998, the claimant returned to regular work duties and was paid wage loss benefits up to that date.

On July 6, 1998, the claimant contacted the Workers Compensation Board (WCB) indicating that she continued to work at her regular duties until July 2, 1998 at which time she went off work as her hip and lower back areas were bothering her. The claimant explained that when she fell (May 6, 1998) that she also landed on her hip.

With respect to the claimant's hip and lower back complaints, primary adjudication obtained statements from the claimant dated July 17, 1998 and from the claimant's supervisor dated July 20, 1998. Reports were also submitted from the following care providers:

• on August 7, 1998, a Chiropractor's First Report (date of visit - June 30, 1998) noted the history of injury as follows: suffered severe injury from fall at work. Head, shoulder and hip pain. The claimant was diagnosed with a lumbosacral and sacroiliac sprain/strain and was provided with spinal adjustments and was advised to wear a sacroiliac belt;
• on July 2, 1998, a second physician reported spasm in the left sacroiliac joint area;
• in a report dated July 24, 1998, the attending physician (sports medicine specialist) stated that from reviewing his notes, he noticed that he did not document that the claimant had right hip pain at the first visit. "This symptom did not become a major complaint until June 18, 1998 when she was able to return to work because of her wrist and developed further pain in her right hip. Her current injury is right pyformis syndrome and this is attributed to her May 6, 1998, injury."

In a memo dated August 11, 1998, the Section Head of Complex Claims concluded the following after reviewing the medical information on file: "a connection between the now reported left flank and back pain and the work place incident of May 8, 1998, cannot be made.

On September 9, 1998, Claims Services advised the claimant that responsibility would not be accepted for her back and hip problems which she felt were related to the May 6, 1998, injury. This decision was reached based on the following factors:

• in her sworn statement, the claimant made reference to the fact that she was feeling fine with respect to her left hand, back and hip when she returned to work on June 19, 1998; that she felt fine until the weekend of June 27, 1997, when she was in great pain for no new reason other than picking orders.
• when the claimant filled out a green card at the time of injury, she reported injuries only to her hand, shoulder, head and side of her knee.
• the first mention of any back and hip problems was on June 18, 1998, at which time the attending physician indicated negative back flexion and then she returned to work.

On November 6, 1998, the case was considered by Review Office following receipt of an appeal by the claimant. Prior to rendering its decision, Review Office took into consideration a narrative report from the attending physician dated October 20, 1998, and the comments expressed by a WCB orthopaedic consultant on November 5, 1998.

The Review Office determined that no responsibility could be accepted for the claimant's back and left hip problems as these were not considered related to the compensable injury. Review Office noted that the primary injury was to the claimant's left wrist when she fell at work on May 6, 1998. The attending physician now stated that when the claimant initially attending his office on May 6, 1998, she complained of some pain in her left hip but because the hand pain was predominant there was not much attention paid to the hip condition. Reports submitted by the physician thereafter made absolutely no mention of back or hip difficulties nor was there any mention of back and hip difficulties on the physiotherapist's report. Review Office did not believe that the evidence supported the worker's contention that her left hip and back difficulties for which she was off work and under treatment after July 2, 1998, were related to the May 6, 1998 fall at work.

On October 12, 2000, the claimant appealed Review Office's decision and an oral hearing was requested.

Reasons

This is the case of a worker who sustained injuries as the result of a workplace accident on May 6, 1998. At that time, she fell, in a twisting manner, after catching her boot in the open space on a pallet.

Her initial injury was to her left hand, which resulted in a loss of working capacity for almost six weeks. Subsequent to her return to work on June 19, 1998, she began to have problems in the area of her lower back and left hip. As a result of this, she was unable to work as of July 2, 1998. Between that date and December 14, 1998, she had a number of periods when she was unable to work and others when she did work, often at reduced hours.

It is this latter problem that is the subject of this appeal. The WCB has ruled that there is no causal link between this back/hip problem and her workplace accident. This is based, in large part, on the fact that she did not seek treatment for this ailment until after her return to work in June. At least, there is no mention from her attending physician, in his progress reports filed at that time of any problem with her back.

For the appeal to succeed, the panel must conclude, on a balance of probabilities, that the claimant's lower back/hip problems were caused by the May 6 accident.

In coming to our decision, we did not give much weight to the fact that, on her initial accident report, she did not mention her hip or back, specifically. Instead, we were persuaded by evidence provided by the medical practitioners she was seeing during this period. Among these was her attending physician who, in a letter to the Board dated July 24, 1998, noted that he had observed her hip and back problems on the claimant's first visit, but, as it was not giving her much trouble, ignored it and focussed on her more serious wrist problem. He writes that it was not until after she returned to work on June 18 that the hip/back problem was aggravated and began to give the claimant serious problems.

In addition, the claimant was receiving physiotherapy for her hand and wrist. She testified that, on at least one occasion, she complained to the physiotherapist about pains in her hip and back. The physiotherapist provided her with a heating pad to ease this pain while she received treatment for her hand/wrist. This was corroborated by the physiotherapist.

We accept the evidence of these two practitioners, who were treating her at the time, as establishing a link between the compensable injury and her ongoing hip and back problems.

We found the claimant to be a very credible witness. We noted, in the file, partially completed forms for a claim for her hip and back problems which supposedly occurred on July 2, 1998. Apparently, it was suggested to the claimant that she file a new claim. She did not do so, feeling it would be dishonest, as she truly believed the problems to be related to the May 6, 1998 incident.

We are of the view that, on a balance of probabilities, the evidence supports the premise that her problems with her lower back/left hip did result from the accident she suffered at work on May 6, 1998.

Accordingly, the appeal is allowed.

We were not asked to rule on any other elements of this case; so, we refer it back to Primary Adjudication to determine the scope of the claim; i.e., the nature and duration of benefits to which the claimant is entitled.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of February, 2001