Decision #25/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 31, 2002, at the request of the claimant. The Panel discussed this appeal on January 31, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On December 28, 2000, the claimant filed an application for compensation benefits for a lower back injury that occurred on December 13, 2000 during the course of her employment as a psychiatric nursing assistant. The claimant described her injury as follows:
    "13/12/00: Went to work at 7:00 a.m. and got residents out of bed, most are in wheelchairs, got them dressed. Throughout the day we lift residents (arm & arm) out of chairs to change them. Got off of work at 3:30 p.m. went home. I didn't go anywhere that evening.

    14/12/00: I woke-up & my lower back was very stiff. I didn't think much of it because I was on a long weekend. I thought it would be better before returning to work 18/12/00."
In a letter dated January 4, 2001, a claims coordinator with the employer provided the following information:
    "Claimant states when she got out of bed on the Dec. 14th her back was sore. She was then on four days off (Dec. 14-17th). On Dec. 18th her back was still sore. She called employer and said back was sore and would not be in. She said she saw Dr. [name] on the 18th.

    When speaking with [claimant] she said there was no specific incident that she can relate to injuring her back."
A Chiropractor's First Report dated December 19, 2000, revealed that the claimant was examined on December 18, 2000. The claimant's description of accident or injury as recorded by the chiropractor was as follows: "Worker was lifting patients at work - arm in arm lifts, 2 person lifts, subsequently stiff and sore low back." The diagnosis rendered was an acute lumbosacral strain/sprain with bilateral sciatica.

In a memo dated February 27, 2001, primary adjudication requested an opinion from the Workers Compensation Board's (WCB's) healthcare branch as to whether there was a relationship between the mechanics of the injury and the claimant's diagnosed condition. The following response was documented:
    It is not clear why she should have such an (apparently) severe problem after no particular injury or untoward event at work, bearing in mind that the injury is reported 4 days later after she had been off work. It think the claimant and any MD's or chiro's she has seen prior to injury should be questioned re pre-existing back problems; I also wonder about her height and weight. It is also not that clear what her present diagnosis is - will discuss with Chiro Advisor. Also, why is there no more medical info after Jan 29?

    Discuss with Dr. [WCB chiropractic advisor] - the diagnosis of "acute lumbosacral strain/sprain with bilateral sciatica" does not make sense - a strain does not cause sciatica, especially bilateral sciatica. There is also no mechanism of injury to explain this diagnosis.
In a decision dated March 5, 2001, the claimant was informed by Rehabilitation and Compensation Services that her claim was not acceptable as it was unable to establish that she suffered a personal injury due to an accident arising "out of and in the course of" her employment. This decision was based on the medical advisor's opinion as well as a review of file information. On March 19, 2001 the claimant appealed the decision to deny her claim and the case was forwarded to Review Office.

On April 20, 2001, Review Office confirmed that the claim did not involve a personal injury arising out of and in the course of the worker's employment, therefore it was not acceptable. Review Office noted that the claimant's back was fine on December 13, 2000 and that no problems were apparent until December 14, 2000. There was no mechanism of injury to account for the diagnosis. On November 9, 2001, the claimant 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. An accident is defined as,
    "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 occupation disease
    and as a result of which a worker is injured."
At the outset, we find that the mechanism of injury is consistent with the claimant's job duties as a psychiatric nursing assistant. In addition, we have often seen that a delayed onset of symptoms is neither uncommon nor unusual in respect of low back injuries. The claimant was an extremely credible witness and we accept her evidence that there was no strenuous activity or incident occurring after the end of her shift on December 13th, 2000 and the onset of her symptoms on the following day.

After thoroughly considering all of the evidence, we are satisfied that the claimant's repetitive back strain type of injury arose out of and in the course of her employment. We are of the further opinion that the claimant's low back injury was, on a balance of probabilities, brought about as a result of the physical duties that she performed on December 13th, 2000. Therefore, we find the claim to be acceptable and the claimant's appeal is hereby allowed.

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 25th day of February, 2002

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