Decision #132/02 - Type: Workers Compensation
Preamble
A non-oral file review was held on October 7, 2002, at the request of the employer. The employer was appealing a decision rendered by the Review Office of the Workers Compensation Board (WCB) which determined that responsibility should have been accepted for the worker's time loss between October 23, 2001 and October 27, 2001 and related medical expenses.Issue
Whether or not responsibility should be accepted for the worker's time loss from work between October 23, 2001 and October 27, 2001 and related medical expenses.Decision
That responsibility should be accepted for the worker's time loss from work between October 23, 2001 and October 27, 2001 and related medical expenses.Decision: Unanimous
Background
In early January 2002, the claimant submitted an application for compensation benefits with respect to a lower back injury that occurred at work on October 2, 2001. The claimant described the accident as follows:- I was given a [vehicle] that had a defective seat. The seat was bouncing up and down. I had requested a mechanic to fix the seat or replace the seat. They wouldn't replace the seat or give me a different [vehicle]. The bouncing of the seat over a course of a 7 hr. shift caused me lower back pain.
During a telephone conversation with a WCB adjudicator on February 7, 2002, the claimant indicated that he was having trouble with the seat on his vehicle, i.e. bouncing up and down and bottoming out. After a couple of hours on October 2, 2001, he started to experience discomfort in his low mid back area and up the middle of his back. Once he noticed the discomfort, the claimant radioed into control to advise them that his back was sore due to his seat. A person was sent out to look at the seat but he could not find anything wrong with it. The next day the claimant said he was given the exact same vehicle to drive as the day before.
The claimant advised that he attended a meeting that took place on October 4, 2001 with management, union rep., etc. to look at the seat in question. The mechanic pointed out that there was an air ride cut off switch under the seat that would stop the seat from bouncing up and down. The claimant indicated that he did not know about the switch. At the end of the meeting, the operations manager asked the claimant if he would be able to operate the vehicle if they cut out the air ride on the seat and the claimant said yes. The claimant was offered a gel seat to absorb some of the shock that the air ride was supposed to absorb and the claimant continued working at his regular duties.
The claimant advised the adjudicator that after prolonged periods of sitting he would get a sore and stiff back. By the end of his shift he would start to feel a lot of pain and he could not bend over to tie his shoes. After weeks of this he decided to get his back looked at and he started physiotherapy and doing exercises which improved his symptoms. The claimant was unsure what his back difficulties were from and his chiropractor told him that it was because of his seat bouncing on October 2nd and 3rd.
On February 20, 2002, a WCB adjudication spoke with the claimant's supervisor and he confirmed that the claimant was not advised of the lock out mechanism on the seat when he first reported his problems on the date of accident. The supervisor indicated that there were only three left of this particular type of seat and he had no concerns regarding the acceptance of the claim.
In a decision letter dated February 20, 2002, the claimant was advised by primary adjudication that the WCB accepted his claim for payment of directly related medical expenses only until October 3, 2001 inclusive and that wage loss benefits would not be paid. Primary adjudication was unable to relate the claimant's medical treatment and resulting time loss from work commencing October 23, 2001, to the October 2, 2001 compensable injury. On March 20, 2002, the claimant appealed this decision to Review Office.
Review Office considered the claimant's appeal along with a submission from the employer's representative dated June 4, 2002. On June 14, 2002, Review Office determined that responsibility should be accepted for the worker's time loss from work and related medical expenses between October 23, 2001 and October 27, 2001. Review Office made note that the claimant did not seek medical treatment until three weeks after the date of injury. He admitted not making any complaints of low back pain to his employer between October 3, 2001 and October 23, 2001. Review Office found no indication on file that the claimant had any prior low back history or compensable back claims. There was no suggestion that he sustained any further injury subsequent to October 2, 2001.
Review Office accepted the claimant's explanation that he delayed in seeking medical treatment and did not make ongoing complaints to the employer as he felt that his back pain would resolve on its own. It was the opinion of Review Office that on a balance of probabilities, the claimant's ongoing low back complaints could reasonably be associated with the injury sustained on October 2, 2001. On June 25, 2002, the employer's representative appealed Review Office's decision and a non-oral file review was arranged.
Reasons
After reviewing the contents of the claimant's file and after considering the written arguments of both the employer's and the claimant's representatives, this Panel is of the unanimous opinion that the employer's appeal ought to be dismissed.We accept the fact that the claimant injured his lower back while driving a vehicle on October 2 and 3, 2001. This injury occurred as a result of the claimant driving a vehicle while sitting on a defective driver's seat. Evidence of the claimant's difficulties with the vehicle's seat during the days of October 2 and 3, 2001 is well documented on the claimant's file. His back began to hurt during those days. Requests were made by the claimant, not the employer, to change vehicles and those requests were denied. A mechanic was sent on both days to fix the seat and only on the second day did it become apparent that the lock out mechanism on the seat had not been activated. Neither the mechanic nor the claimant appeared to have been aware of this lock out mechanism, which, if activated, apparently would have prevented the seat from bouncing and bottoming out so much which action results in a lower back injury to the claimant.
The fact that the claimant did not seek immediate medical help for his back condition and instead continued to work is not something that this Panel finds unusual given the claimant's explanations. He described himself in a letter to the WCB Review Office dated March 20, 2002, as not being "a person who feels the need to go to the doctor for every sniffle and ache." He "did not feel his sore back was in need of imiddiate (sic) medical attention, and carried on with [his] regular duties." Unfortunately, his back became worse instead of better over the following weeks until it was unbearable by October 23, 2001. At this point, he made a determination that his back was not going to get better on its own and medical attention was sought.
The medical information on the claimant's file supports the claimant's version of his injury. The claimant's attending physician, in a report, describing the claimant's visit on October 23, 2001 rendered a diagnosis of lumbar facet sprain with spasm. The attending chiropractor also saw the claimant on October 23, 2001 and rendered a diagnosis of lumbar subluxations at L3-5. Both medical practitioners described the fact that there were no pre-existing conditions causing the claimant's symptoms.
In light of the above information, we find that the claimant's explanation for his failure to seek medical assistance for approximately three weeks after the accident is both plausible and credible. The medical information on file as well as the claimant's evidence supports a causation link between the accident and the injury which this panel is prepared to accept on a balance of probabilities. Accordingly, the appeal of the employer is hereby dismissed.
Panel Members
K. Dunlop, Q.C., Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of November, 2002