Decision #12/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 19, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 19, 2001.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On October 2, 2000, the claimant completed a Worker's Report of Injury or Occupational Disease wherein he stated that he sustained a low back injury on August 19, 2000. The claimant was employed as a health care aide and reported sustaining the injury while lifting a patient.At the request of the Workers Compensation Board of Manitoba (WCB), the employer was asked to provide a report. In their report dated October 11, 2000, they advised that an injury had not been reported to them. They further advised that the claimant had called in sick due to pain and had been absent from work since August 25, 2000. The employer was unable to provide any information with respect to the circumstances of the alleged injury.
A medical report was received from a local emergency facility advising the claimant had attended there on August 26, 2000, for treatment of his lower back complaints. The physician reported a history of the claimant injuring his back and experiencing pain down the right leg after lifting a heavy patient. Tenderness in the right gluteus and a normal neurological examination was noted. The claimant was diagnosed with sciatica and it was suggested he refrain from any heavy lifting for 3 days.
Follow up medical treatment was provided by the claimant's family physician on August 28, 2000. In that report, the family physician indicated that the claimant presented with pain and tenderness involving the S1 dermatome. A diagnosis of disc herniation at the L5-S1 level was suggested and arrangements were made for the claimant to be assessed by a consultant in physical medicine and rehabilitation.
The WCB adjudicator assigned to this case spoke with the claimant by telephone on November 3, 2000. During the conversation, the claimant provided the adjudicator with the history of events. He advised that he was fine prior to his shift on August 19, 2000. After the incident, he noted that he developed symptoms of urinary frequency and thought that he had developed an infection. He stated that he continued to work with the lower right back and leg symptoms but did not report them to anybody. Concerning medical treatment, the claimant advised that he did see the consultant in physical medicine and rehabilitation and that a CT scan was scheduled for December 16, 2000.
By letter dated November 9, 2000, the adjudicator advised the claimant that his claim had been denied. In the letter, the adjudicator referenced Sections 4(1) and 17(5) of The Workers Compensation Act (the Act) and advised that the claimant's failure to promptly report the injury deemed the claim to be unacceptable.
With the assistance of an advocate, the claimant appealed primary adjudication's decision to the WCB Review Office. In their decision dated March 30, 2001, Review Office upheld the lower level decision and advised that the claim for compensation was not acceptable. In reaching this conclusion, Review Office noted the claimant's failure to promptly report an accident to the employer. In addition, reference was made to additional medical documentation submitted by the advocate from the consultant in physical medicine and rehabilitation. In this regard, Review Office stated:
- "In reviewing the additional medical evidence submitted by the Worker Advisor, it is noted that the attending Physical Rehabilitation Medicine Consultant reports that the worker had experienced low back pain radiating into his right leg since April 2000 which became worse in August 2000. Thus, it is apparent that the worker's complaints clearly predated August 19, 2000, the date of the alleged injury at work.
Furthermore, the Physical Rehabilitation Medicine Consultant's final diagnosis by exclusion was muscular back and right leg pain. Review Office views this diagnosis as more likely to be representative of the long-standing back and leg pain suffered by the worker rather than being due to an acute injury by accident."
Reasons
This case involves a worker who claims that he sustained a low back injury on August 19, 2000, while employed as a health care aide. The worker initiated his claim with the Workers Compensation Board on October 2, 2000, and did not report to his employer that his injuries arose out of his work duties. A WCB adjudicator denied his claim, because of the delay in the worker's reporting of the accident to the employer. This decision was upheld by the Review Office, which noted the delay in reporting and also found that the claimant had a back injury predating August 2000, and that they could not establish a workplace accident.The worker has appealed this decision to the Appeal Commission. For the worker to be successful in his appeal, we would have to find, on a balance of probabilities, that there was a workplace accident, as defined under Sections 1(1) and 4(1) of The Workers Compensation Act (the "Act"). As well, we would have to find that the claimant is not barred from receiving benefits because of his delay in reporting the accident to his employer. These provisions are set out in Section 17 of the Act.
After a review of all the evidence on the file, we have concluded that the claimant did indeed suffer a workplace accident, and that the claimant is not barred from making this claim for compensation because of his failure to give notice to his employer within 30 days.
Dealing with the workplace accident, we note from the evidence that the claimant worked as a health care aide in a number of health care facilities. He states that he was lifting a heavy patient on August 19, 2000 when he felt a sharp pain down his right leg. He continued to work for the next week, finally leaving work on August 26, 2000. We note that his first medical treatment for his injuries took place on August 26, 2000, at a hospital emergency department, where he provides a history of "Sore lower back pain down right leg after lifting heavy patient." A later report from the claimant's attending physician notes that he examined him on August 28, 2000, with the worker providing a similar history. We note that neither of these physicians informed the Board of this workplace accident.
As to the worker's medical conditions, we note that the Review Office placed considerable weight on the claimant's report of back difficulties going back to April 20, 2000, and that his back difficulties predated the claimed August 19, 2000 incident. After a careful questioning of the claimant at the hearing and a review of the file evidence, we find that there was no such prior injury in April 2000. We base this on the attending physician's report of May 23, 2001 in which he indicates his error in writing April 20 instead of August 20. We also accept the evidence of the claimant that he did not have any back problems or work absences in April 2000. This finding is supported by a recent M.R.I. examination on December 3, 2001 which notes a "shallow broad-based right paracentral disc herniation at the L5-S1 level. This is in contact with the right S1 nerve root." These findings are consistent with the ongoing symptoms demonstrated by the claimant since August 19, 2000, and are consistent with the claimant's job duties and a traumatic mechanism of injury as described by the claimant to his physicians and to the Board. Accordingly, we find that the claimant did on a balance of probabilities, suffer a workplace accident as defined under the Act.
Dealing with the worker's delay in reporting the accident to his employer, we note that section 17(1) of the Act requires notice to be given within 30 days of the accident. Section 17(5) of the Act then states that the worker's failure to give notice is a bar to any claim to compensation, unless excused by the board on the ground that the board is of the opinion that the claim is a just one and ought to be allowed.
In reviewing the circumstances of the delay, we note that the claimant has a passive demeanor in respect of his dealings with his employer and has a very limited history of initiating claims with the Board -- he has numerous no time loss claims which appear to have been initiated by his employers or medical professionals, that he was not aware of. In this case, we note that the worker was forthright in reporting the work-related nature of his injuries when he first went off work to the doctors who treated him. As well, the length of the overall delay (August 19 injury or August 26 work absence, to his October 2 report of injury) does not warrant a bar to compensation, given the medical findings on this file. Accordingly, we find that this claim is a just one, and ought to be allowed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of January, 2002