The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 1, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 1, 2001.

Issue

Groin Injury of February 24, 2000:

Whether or not the worker had recovered from the effects of the compensable injury as of March 17, 2000; and

Whether or not the worker is entitled to wage loss benefits beyond March 17, 2000.

Low back injury of March 22, 2000:

Whether or not the claim is acceptable.

Decision

Claim for groin injury of February 24, 2000:

That the worker had not recovered from the effects of the compensable injury as of March 17, 2000; and

That the worker is entitled to wage loss benefits beyond March 17, 2000.

Claim for low back injury of March 22, 2000:

That the claim is not acceptable.

Background

While employed as a labourer in a meat packaging plant on February 24, 2000, the claimant experienced left groin pain from performing the following activity, "picking up pallets and throwing them on top of a pile of pallets & using my left leg to support the pallet."

Through an external e-mail memo to the Workers Compensation Board (WCB) dated March 10, 2000, the employer's health nurse advised that the claimant went off work on February 24th complaining of lower abdominal pain, urinary infrequency and burning on voiding. The attending physician diagnosed the claimant with pelvic pain and she was sent for a urinalysis and was placed on medication. The claimant submitted a group insurance form for time loss. The health nurse indicated that the claimant returned to work on March 6th and 7th 2000 and was still having lower abdominal pain. The claimant had been on light duties because of problems with her arms/shoulders. The claimant had been working in the box room, putting empty boxes down chutes to feed the packaging department since February 4, 2000.

On March 7, 2000, the attending physician diagnosed the claimant as having sustained a pulled left groin muscle (according to a memo on file dated March 15, 2000) which he felt was related to her job activities of moving/dragging pallets. The claimant was considered totally disabled and was to remain off work.

On March 15, 2000, the claim for compensation was accepted by the WCB and wage loss benefits were paid to the claimant for the period February 25, 2000 to March 3, 2000. The claimant was also paid from March 7th , 2000 (less hours worked) to March 17, 2000, when it was anticipated that she would return to light duties.

In a March 21, 2000 memo, a WCB adjudicator recorded that the claimant returned to light duties on March 20, 2000 and that the employer rectified the light duties to eliminate the lifting of pallets.

In a further memo dated March 31, 2000, a WCB adjudicator recorded that he spoke with the claimant concerning an injury recurrence. The claimant advised that she worked modified duties between March 20 and 22, 2000, that entailed placing empty boxes down chutes. On the first day of her return to work she did very little and on the second day she was moving empty boxes and pallets which were awkward and heavy. The claimant indicated that she began lifting pallets because her co-workers wouldn't assist her. There was no new accident.

Subsequent medical information consisted of a x-ray report of the lumbosacral spine dated March 23, 2000. The report read as follows: "There is Grade I spondylolisthesis of L5 on S1. Alignment is otherwise normal. There is evidence of spondylolysis at L5 as the cause of this. There is also mild disc space narrowing at L5-S1 with subchondral sclerosis consistent with degenerative disc disease. Minor degenerative changes are also seen in the lower thoracic spine. No other abnormalities are seen."

A progress report from the attending physician dated April 4, 2000, noted low back tenderness at L5-S1, left sciatic notch tenderness and decreased range of motion of the lumbar spine. It was expected that the claimant could return to work as of April 19, 2000. The physician stated that the claimant had a previous history of spondylolysis. In another progress report dated April 12, 2000, the attending physician indicated that the claimant showed a 40% improvement in her symptoms but had pain in the groin and back regions.

A WCB medical advisor assessed the claimant on May 15, 2000. Under the "Discussion" portion of her report, the medical advisor noted that when the claimant returned to work on March 20, 2000, her left groin pain increased and she began to experience new left lower back pain. The claimant stated this had not been present previously. The medical advisor noted that the claimant presently complained of left lower back pain and stated that her left lower quadrant abdominal pain was not limiting her from returning to work.

The medical advisor concluded that the claimant was experiencing mechanical low back pain that was unrelated to the initial workplace incident of February 24, 2000, which was eventually diagnosed as a left groin strain. It appeared that the left low back complaints may be related to left sacroiliac joint dysfunction and muscular irritation of the left gluteal musculature. It was noted that the claimant related the onset of her pain to the March 20-22, 2000, return to work although there was no reporting on file from either her doctor on March 23, 2000, or the employer. The medical advisor did not feel that further investigation or treatment was required for the claimant's initial left lower quadrant abdominal complaints which was eventually diagnosed as a left groin strain.

In a letter dated May 29, 2000, the claimant was notified by Rehabilitation and Compensation Services that based on the weight of evidence, she was considered to be recovered from the February 24, 2000, workplace accident as of March 20, 2000, when she returned to work in modified duties. The WCB would therefore not accept any ongoing responsibility with respect to her left groin injury of February 24, 2000. On July 26, 2000, a union representative appealed this decision on the claimant's behalf.

On August 11, 1999 (sic) Review Office determined that on a balance of probabilities, the claimant made a good recovery from her February 24, 2000, groin injury to allow her to return to her pre-accident employment on March 20, 2000. She was therefore not entitled to wage loss benefits beyond March 17, 2000.

Review Office also commented that the claimant was relating the onset of her left lower back pain to her March 20 - 22, 2000, return to work. As this had not been adjudicated by primary adjudication, Review Office referred the case back to Rehabilitation & Compensation Services for further consideration.

On her application for compensation benefits dated June 1, 2000, the claimant indicated that she injured her left lower back on March 22, 2000. She stated she bent down to pick up an empty pallet and did not realize that it was stuck under the lip of the floor. The claimant said she pulled on it too hard and that she pulled her lower back. By her second break, the pain was unbearable so she went to the company nurse and went home.

The employer's report of injury dated June 21, 2000, noted that no injury was reported by the claimant. It stated that the claimant had returned to work on March 20th following an absence since February 9th for a groin pull. The claimant was working in the box room putting boxes down a chute and she was not required to move pallets.

In correspondence dated June 21, 2000, the company health nurse indicated that when the claimant went off work on March 22, 2000, she stated that she was again sore and could not continue working. The claimant did not indicate that the pain was in her lower back. "She referred to the groin pain when she talked to me and indicated that it had not healed." On May 30, 2000, the claimant "called stating that she would be off work for a while - she picked up group forms stating that WCB was not paying her. She then stated that it wasn't her groin anymore, but her low back. This was the first indication that I had that there was anything wrong with her low back. The only time that she stated that she had picked up a pallet was when she indicated a change in her diagnosis from pelvic pain to a groin pull on March 16th."

A Doctor's First Report dated July 5, 2000, (date of visit was March 22, 2000) indicated that the claimant was picking up pallets at work injuring her left groin. The claimant was considered to be totally disabled effective March 22, 2000.

On September 12, 2000, primary adjudication determined, based on the weight of evidence, that the WCB was unable to establish a relationship between the claimant's left groin and lower back difficulties and the workplace accident of March 22, 2000. On November 16, 2000, the claimant's union representative appealed this decision to Review Office.

In considering the union representative's appeal, Review Office reviewed all the file information which included signed declarations from the claimant and company health nurse. On January 5, 2001, Review Office determined that the claim for compensation was not acceptable based on the following factors:

• information did not establish that the claimant related her complaints of back pain to her employer until May 30, 2000;
• the co-workers mentioned by the claimant had been unable to confirm any injury to her back occurring at work March 22, 2000;
• the attending physician indicated knowledge of a left groin injury that occurred while picking up pallets at work on March 23 and he confirmed that the claimant complained of low back pain as well. There was no information, however, to support that this pain was related to an incident at work the day prior.

Review Office concluded that the weight of evidence did not support that the claimant sustained an injury to her back at work on March 22, 2000, and the claim was therefore denied. The union representative later appealed the Review Office's decisions of August 11, 1999 (sic) and January 5, 2001 and an oral hearing was held at the Appeal Commission.

Reasons

Claim for groin injury of February 24, 2000

This is a case of a worker who initially suffered a compensable injury to her lower left quadrant while performing regular light duties on February 24, 2000. The claimant went off work as of February 24, 2000, and returned to work as of March 6, 2000. The claimant was still experiencing lower abdominal pain upon her return to work.

On March 7, 2000, the worker's treating physician diagnosed a pulled groin muscle and related it to her job duties of moving and dragging pallets. The claimant was considered to be totally disabled and was advised to remain off work. Her WCB claim was accepted and benefits were paid until she was scheduled to return to light duties effective March 20, 2000.

The worker did return to modified duties as of March 20, 2000. Her first day of work involved little physical effort and she was able to manage the work without difficulty. On her second day of work she was relieving another worker and moved some pallets which caused pain in her groin area. By her third day she was not able to continue her entire shift and sought medical attention with the company health nurse and subsequently a general practitioner on March 23, 2000. She was not able to return to work until May 2000.

For this appeal to be successful the panel must determine the worker had not recovered from the effects of her compensable accident of February 24, 2000, and specifically, still demonstrated ongoing difficulties and a loss of earning capacity after March 17, 2000.

In considering this appeal the panel reviewed the contents of the file, heard evidence from the claimant and presentations from the worker's and the employer's representatives.

In reviewing the medical evidence, the panel noted medical reports, and also the employer's health department information regarding the claimant's medical time away from work. The employer's health department records note the following: "April 11/00 the groin is still very sore." and "April 26/00 Dr's note indicating RTW on May 15th".

The attending physician's reports of February 24, March 2, March 7, March 14 and March 29, 2000, all referenced the left groin area. Another physician who treated the claimant while her family physician was away commented on left groin pain on April 4 & April 11, 2000.

A board medical advisor on April 26, 2000, noted the claimant had not recovered from the effects of her compensable injury and a subsequent call in was arranged for May 15, 2000, to determine a diagnosis.

The claimant advised the WCB consultant on May 15, 2000, that the groin pain was no longer disabling her from work. The claimant around this time presented her employer with a doctor's note confirming that she could return to work on May 23, 2000.

The panel is of the opinion, based on a balance of probabilities, the claimant had not recovered from the effects of her compensable injury as of March 17, 2000.

The claimant's evidence regarding her return to work from March 20-23, 2000, demonstrates that she suffered an event that continued to cause ongoing discomfort in her left groin area. In our opinion, the work activities of moving pallets on March 22, 2000, further aggravated her groin strain. Medical follow up was required and we are satisfied that it was not until mid May when this no longer presented as a problem and allowed her to return to her employment.

As we find that the claimant had not recovered from the effects of her compensable injury by March 17, 2001, we also find that she would have an entitlement to wage loss benefits beyond that date. The appeal on these issues is therefore allowed.

Claim for low back injury of March 22, 2000

On June 1, 2000, the claimant filed a claim for a lower back injury that occurred on March 22, 2000, while working on modified duties for the employer. She claims she was picking up an empty pallet and felt a pull in her lower back. This claimant had suffered a previous injury to her lower left quadrant and was awarded WCB benefits from February 24 until March 17, 2000. The claimant's representative notes that when the claimant returned to modified duties on March 20, 2000, the duties worsened her groin condition and also caused her to experience lower back and sciatic pain.

The claimant in her evidence at the hearing indicated that when she attended her physician in late March she was having problems with her groin and also her back. She initially sought treatment for her groin but said the back difficulty was discovered by a physician who ordered x -rays and advised the claimant to remain off work.

The employer's representative indicated that the first time the employer knew of a back problem was not until late May when the claimant requested insurance forms to fill out as she felt she could not continue working. The claimant could not recall when she actually notified the employer of the back problem.

For this appeal to be acceptable, the panel needs to be satisfied that the claimant sustained an accident in accordance with the definitions as outlined in The Workers Compensation Act (the Act).

Section 4 (1) of 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 the employment.

Section 4 (1)

"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."

In keeping with this section, the panel must be satisfied that there has been an accident within the meaning of Section 1(1) of the Act.

Section 1 (1)

"accident" means 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 panel is not satisfied that the worker suffered a back injury on March 22, 2000. The claimant's physician noted the claimant had complained of back pain on an office visit prior to March 22, 2000. An x-ray ordered on March 23, 2000, by a second physician shows "There is a grade 1 spondylolisthesis of L5 on S1. There is also mild disc space narrowing at L5 S1 with subchondral sclerosis consistent with degenerative disease." While the physician noted tenderness and limited range of motion, he failed to link it to the workplace injury. The worker had attended this physician on March 23, 2000, because of her continuing groin problem.

The claimant on March 31, 2000, contacted the WCB to report her groin problems had not ceased but did not mention she was having back trouble. Her concerns of groin problems were referred to a WCB medical consultant who arranged for a call in exam in May 2000 to determine her current status and functional capabilities. The WCB consultant was not able to find a relationship between the initial compensable groin injury and the back difficulties.

We have concluded the claimant did not report the back difficulties to the WCB or to her employer in March 2000. We find the evidence indicates the employer was only notified of the back difficulties on May 30, 2000, as part of the worker's application for short term disability benefits. We further conclude that the evidence shows the worker had back difficulties which pre-dated March 22, 2000. Although the claimant received treatment for back complaints from March to May 2000, a causal relationship to the employment and the work performed on March 22, 2000 cannot be substantiated.

Accordingly, as the panel finds on a balance of probabilities that the worker did not suffer a back injury on March 22, 2000, her claim is not acceptable. The appeal on this issue is therefore denied.

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 12th day of December, 2001