The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 10, 2001, at the request of a union representative acting on behalf of the claimant. The Panel discussed this appeal on July 10, 2001 and October 17, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On October 24, 2000 the claimant filed an application for compensation benefits for a lower back and neck injury which occurred at work on October 6, 2000. The claimant was employed as a deli clerk at the time. The claimant described the incident as follows: "At the end of my shift on Oct. 6 I took out two heavy bags of garbage to the bins out back. I knew I could not lift them into the bins, so I lifted part way and swung them into the bin." The claimant indicated that she did not feel any pain at the time but did so the next morning. As it was the weekend she was hoping the pain would stop but instead it became worse.

A doctor's first report dated October 19, 2000 gave a history of throwing garbage out and the next day felt back and neck pain. The claimant reported severe central back pain radiating down the right leg. The diagnosis was questionable herniated disc and physiotherapy treatments were arranged. Subsequent file documentation (memorandum dated January 26, 2001) showed that the date of this examination was actually October 10, 2000 and the physician's chart notes indicated "sore low back. No trauma. Some pain radiating into neck and shoulder."

An employer's report of injury was filled out on October 31, 2000 with respect to the October 6, 2000 incident. The employer described the injury as follows: "She phoned the supervisor 3 days later and said she did not know what she had done, but her neck was stiff. Then later in the week, she told her that it might have been when she was taking out the garbage to the compactor. She did not mention anything to anyone that evening or 3 days later when she called in. She did not call regarding it until she was supposed to come in for her shift on October 10, 2000." In a letter attached with the report of injury, the employer questioned the validity of the claim indicating that the injury was not reported in a timely manner.

Subsequent file memorandums document discussions that took place between a WCB adjudicator and the claimant, a supervisor and a union representative.

In a memo dated November 14, 2000, the claimant indicated that she phoned her supervisor on October 10, 2000 and told her she would not be in to work because she couldn't move her neck. At the time the claimant said she was not thinking about why her neck was sore or what caused it. When she went to see her doctor on October 10th she did not mention lifting the garbage at work. The claimant indicated that afterwards she started to think about what caused her back problems and she recalled lifting the bags of garbage. The claimant said she was fine before her shift on October 6th and that she has not had any prior back problems. The claimant advised that she never filed a claim with the WCB before and was unfamiliar with the procedures.

Information obtained from the claimant's supervisor on November 17, 2000 noted the following:

• on October 10, 2000, the claimant reported that she hurt her neck but was unsure how. She indicated that she would not be in to work and was going to see a doctor.
• a co-worker who was on the same shift as the claimant was asked if she was aware of the claimant injuring herself when throwing out the garbage. The co-worker said she was not aware of an accident or of any neck or back problems that the claimant was having that day.
• approximately October 13th the supervisor spoke with the claimant who asked her whether she should file for sick pay at work. The supervisor asked the claimant what happened and she said she wasn't sure. Later that day, the claimant called and reported that on October 6th she was taking out bags of garbage and lifted a bag into a bin and hurt her back.
• the employer had concerns that initially the claimant reported neck and shoulder problems and was now reporting that her back was bothering her.

On November 21, 2000, a WCB adjudicator contacted the claimant's union representative. The union representative indicated that she recalled speaking with the claimant twice while she was in her car. She could not recall the exact date but believed it may have been after October 11, 2000. The union representative recalled that the claimant mentioned something about straining her back and she was unsure if the claimant knew where she got hurt at the time. She recalled advising the claimant that if she was injured at work to file with WCB.

The WCB adjudicator also contacted the claimant's attending physician on November 21, 2000. It was noted that when seen on October 10, 2000, the claimant indicated she awoke with a sore back. No trauma was given and the claimant did not mention it was work related. When seen next on October 19, 2000, the claimant reported that she was throwing garbage out at work and that the bag was very heavy so she was dragging it. She then heaved the bag to the garbage and injured her back.

In a decision dated November 23, 2000, the claimant was advised that the WCB was unable to establish a relationship between her back problems and an injury at work. Section 17(5) of the Workers Compensation Act (the Act) was also given as a reason to deny the claim. On March 19, 2001, a union representative appealed the decision to Review Office.

On January 26, 2001, Review Office denied the claim for compensation. Review Office noted a conflict in the file evidence regarding the report of the claimant's injury as neither the claimant's supervisor or union representative confirmed a work related incident being reported to them as per the claimant's version of events. Review Office referred to the date of reporting to the employer and work causation to the union representative. Review Office felt it was unable to relate the claimant's multitude of physical complaints ranging from her right leg to her lower and upper back, to her neck and shoulder to the incident of October 6, 2000.

Review Office established that when asked 4 days post alleged incident as to what may have caused her back pain, the claimant did not provide a history to her doctor of the October 6, 2000 garbage incident. Review Office was of the opinion that if the claimant felt the garbage bag incident had led to her multitude of complaints, then there was an onus on her to bring this scenario to the attention of her physician and her supervisor before file evidence indicates such reporting did occur. On March 19, 2001, the union representative appealed Review Office's decision and an oral hearing was arranged for July 10, 2001.

Following the hearing and discussion of the case, the Panel requested that additional information be obtained from the attending physician prior to discussing the case further. On October 2, 2001, all parties were provided with the information that was submitted by the attending physician and were asked to provide comment. On October 17, 2001, the Panel met to render its final decision on the issue under appeal.

Reasons

This case involves a worker who hurt herself, causing pains to her lower back, her neck, right side and right leg. It is her position that this injury was a result of a workplace incident in which she placed two heavy bags of garbage into a bin.

Her claim for compensation was denied on the grounds the Adjudicator was unable to establish a link between her back problems and a workplace injury. An appeal to the Review Office was also denied, for the same reasons. She appealed this decision to The Appeal Commission.

At issue in this appeal is acceptance of the claim.

For her appeal to succeed, the Panel must determine that an accident, as defined in The Workers Compensation Act, occurred and that it arose out of and in the course of her employment, as required by section 4(1) of the Act.

We have determined that such an accident did occur.

The Panel was required to give consideration to two matters of delay: the claimant's delay in relating her symptoms to the workplace incident and her delay in filing a compensation claim.

In considering the second of these issues, we note that, in denying her claim, both the primary adjudicator and the Review Office placed considerable weight on subsection 17(5) of the Act. The employer also asked that the appeal be denied on the same basis. Subsection 17(5) reads:

Failure to give notice a bar to any claim
17(5) Failure to give the notice required by virtue of this section, unless excused by the board, on the ground
1. that notice for some sufficient reason could not have been given; or
2. that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or
3. that the board is of opinion that the claim is a just one and ought to be allowed;

is a bar to any claim for compensation under this Part.

However, we note subsection 17(1), which reads:

Notice of accident
17(1) In every case of injury to a worker by accident in any industry within the scope of this Part, the worker, or in the case of his death, a dependant, shall, as soon as practicable, but in any case not later than 30 days after the happening of the accident, give notice thereof to the employer.

A plain reading of these subsections shows that a claimant has a maximum of 30 days within which to report a workplace incident to the employer. Subsection 17(5) would come into play where a claimant does not report within 30 days and seeks leave of the board for an extension of this time period.

Accordingly, we do not find this to be a valid ground for denying the claim.

The other issue - the claimant's delay in relating her symptoms to a workplace incident - goes to the very heart of any claim: whether or not it arose out of and in the course of her employment.

As noted in the background, the claimant laid out a chronology of events to explain why she did not notify her employer for seven days that her symptoms arose out of a workplace incident. She did note that she experienced pain the morning after placing the garbage bags in the bins (not three days later as stated by the employer.) She notified the employer on her next scheduled workday of her problems. And, she went to see her doctor on the first day following the long weekend.

At the request of the Panel, the claimant's family doctor provided a summary of her treatment for this injury. Her initial opinion was that her pain was mechanical. Initially concerned that she may have suffered a herniated disc, this was later cleared up when a CT scan showed her discs to be normal. The doctor, who has treated the claimant for a number of years, also reported that she had no prior history of back problems.

We are of the view that the signs and symptoms reported by the doctor are consistent with a mechanical back sprain/strain caused by the type of incident reported by the claimant.

We do not attach much weight to the fact she did not attribute her problems to the workplace incident for a few days. We find credible her explanation that, initially, she hoped she would recover quickly and not miss any work; and, subsequently, that she was concerned about her employer's reaction to a compensation claim.

The test that must be met for our determinations is the civil standard: a balance of probabilities. On that basis, we come to the conclusion that the claimant's back injuries were causally related to the workplace incident of October 6, 2000.

Accordingly, the appeal is allowed.

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 30th day of October, 2001