Decision #06/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 27, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 28, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In October 2000 the claimant filed a claim for compensation benefits indicating that she had developed a herniated disc during the course of her employment as a nurse on March 13, 2000. The claimant had been performing the following activities, which she felt caused her injury:

"A very busy evening shift lifting and turning patients, transferring patients. Patients weight range varied between 110 - 200 plus lbs."

The claimant indicated that she reported the injury to her employer on April 10, 2000 and her last day of work was April 6, 2000.

The Employer's Report of Injury for this claim stated the following:

"This report was only rec'd on Oct. 16/2000. Writer was very busy on E (evening) shift on Mar. 13/2000, lifting, turning & transferring pts. (patients) between 110 - 200 lbs. Went home with aching legs - took analgesics. Next AM she felt a tightness in L lower buttock - took analgesics. This still constitutes time loss."

The employer noted that the claimant was receiving sick leave pay from April 6, 2000 to July 8, 2000 and "has just now decided to try to get WCB".

On November 6, 2000 the claimant spoke by phone with a Workers Compensation Board (WCB) adjudicator. In a memo dated November 6, 2000, the following information was recorded:

  • the pain started in her lower buttocks and both legs during the shift of March 13, 2000. The left leg was worse than the right. The claimant did not remember a specific injury that caused the pain. She was constantly lifting, turning and bending during the course of her shift. The pain became evident about into her shift.
  • the claimant reported no prior history of any back/leg pain prior to her shift. She also stated that she had never experienced the kind of pain she did on March 13th .
  • the claimant felt that the injury happened because they were busier than usual. She was not sure whether the patients were heavier than normal.
  • she did not seek medical attention for about 2 weeks as she was trying to self treat herself. She thought the pain would go away but when it didn't, she decided to see a doctor. Self-treatment included rest, analgesics, ice/hot packs and stretching.
  • the claimant was doing the same duties as she had been doing for the last 4 years. The claimant provided the name of a co-worker that was on duty with her and to whom she made ongoing complaints about when she first felt the back/leg pain.
  • the claimant stopped working on April 6, 2000 on her doctor's advice. The pain continued to get worse from March until she went off work on April 6, 2000.
  • the claimant decided not to claim with the WCB as she was waiting to see what the diagnosis was. She thought that if the injury could not be attributable to her work, then she would not put in a WCB claim.

Subsequent file information included a memo from a second WCB adjudicator who had spoken with the claimant on January 11, 2001. Also on file is a signed statement from a co-worker dated December 15, 2000.

Medical information on file revealed the following:

  • x-ray report of the lumbosacral spine and both sacroiliac joints dated March 29, 2000 showed minor marginal spurring on L2 and L5. No other bone or joint abnormality was seen. X-rays of the left hip showed a small bone island in the ischium. No other bone or joint abnormality was seen.
  • a Doctor's First Report dated November 1, 2000 (date of visit was June 13, 2000) noted the following worker's history of injury: off work since April 6, 2000 - gradual onset - no trauma - initially left buttock tightness in a.m. especially - saw [doctor's name] - x-rays, BS (bone scan), arthritis. The claimant was diagnosed with possible nerve involvement.
  • the bone scan report of April 28, 2000 revealed no evidence of skeletal metastases.
  • CT scan of the lumbosacral spine dated September 13, 2000 showed some central and left posterolateral disc bulging versus very small shallow disc herniation at the L5-S1 level. The disc material contacted the left S1 nerve root but there was no definite evidence of displacement or compression of the left S1 nerve root. There was no evidence of compression of the thecal sac or central spinal stenosis.
  • in a narrative report dated December 19, 2000, a second physician noted that she treated the claimant for low back difficulties from March 29, 2000 through to November 2, 2000. On the November 2nd visit, the claimant stated that she had a CT scan of the low back done in September 2000 which had "demonstrated herniation of L5 disc". It was on this visit that the claimant stated she had applied for compensation and that her back pain started after work on March 13, 2000.

On January 19, 2001, a WCB adjudicator called the claimant to advise that her claim was acceptable (on the basis of a disc herniation) and that wage loss benefits would be paid to date. On March 23, 2001, an advocate for the employer appealed the decision to Review Office. The advocate did not believe that the requirements of the Workers Compensation Act (the Act) had been met. It had not been established that an accident arose out of and in the course of employment.

In response to the advocate's submission, a solicitor representing the claimant, submitted additional information to Review Office on April 25, 2001. This included a report from a chiropractor dated April 16, 2001 together with two static EMG scans, a report from the claimant's treating physician dated April 30, 2001 and the claimant's work schedule from September 27, 1999 to March 14, 2001.

Prior to considering the case, Review Office sought the medical opinion of a WCB orthopedic consultant on May 29, 2001. He responded in a memo dated June 1, 2001. The claimant's solicitor also provided Review Office with a further submission dated June 21, 2001.

In a decision dated July 6, 2001, Review Office determined that the claim was not acceptable as the weight of evidence failed to establish that the worker sustained a personal injury by accident arising out of and in the course of her employment. Review Office relied on Sections 4(1), 1(1), 17(1) and 17(5) of the Act in making its determination. On August 15, 2001 the claimant's solicitor appealed Review Office's decision and an oral hearing was convened.

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."

As the background notes indicate, the WCB initially accepted the worker's claim, however, Review Office later denied acceptance after concluding the evidence did not establish that the worker had sustained personal injury as a result of an accident arising out of and in the course of her employment. The claimant subsequently appealed this decision to the Appeal Commission.

The claimant testified at the hearing that during the course of her shift on March 13th, 2000 she had been particularly busy lifting, turning and transferring patients. As a consequence, she developed substantial pain in her left posterior hip and buttock area. The pain continued to bother her to such an extent that she eventually sought medical treatment from her family physician 2 weeks later.

In addition to our finding the claimant a credible and forthright witness, we also attached considerable weight to the following body of evidence:

  • Two witnesses corroborated the claimant's testimony with respect to the events of March 13th, 2000, which had led to the development of her low back pain.
  • The claimant attended her treating physician on March 29th, 2000. According to the physician's history notes, the claimant presented with pain in her posterior hip and buttock area, which began approximately two and one-half weeks earlier together with occasional radiation of pain into her left leg.
  • On examination, the treating physician documented objective findings of "marked tenderness over L4-5 centrally and over the left sacroiliac area".
  • The claimant was diagnosed as having a low back strain.
  • The treating physician ordered x-rays of the claimant's lumbosacral spine and both sacroiliac joints on March 29th, 2000.
  • With respect to treatment, the treating physician instructed the claimant on some at home low back exercises to be done as well as refer the claimant for physiotherapy.
  • The treating physician confirmed that the claimant had been a patient of hers since 1988 and that prior to the March 29th, 2000 office visit there had never been any presentation of back complaints by the claimant.

Section 17(1) of the Act requires an injured worker to give his/her employer notice of any accident as soon as practicable and in any event no later than 30 days following the occurrence. In this particular case, the claimant did not inform her employer of her accident until several months later. We accept the evidence of the claimant and a witness that the worker had an intense concern as a former cancer patient that her presenting symptoms were mirroring a spreading cancer as had been experienced by her mother. Subsequent diagnostic testing was primarily focused on identifying skeletal metastases. Given the above set of circumstances, we are of the view that the worker's claim is a just one and that her failing to give the employer proper notice should be excused pursuant to section 17(5) of the Act.

We find based on the preponderance of evidence that the claimant did, on a balance of probabilities, sustain an accident, which arose out of and in the course of her employment on March 13th, 2000. Therefore, the claim is acceptable.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of January, 2002

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