Decision #140/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 12, 2002, at the request of the employer's representative.

Issue

Whether or not the worker is entitled to wage loss benefits for the period August 25 to August 28, 2001 inclusive.

Decision

That the worker was entitled to wage loss benefits for the period August 25 to August 28, 2001 inclusive.

Decision: Unanimous

Background

On September 4, 2001, the claimant advised the Workers Compensation Board (WCB) that he felt a strain/pain in his right shoulder/neck area when he was loading a supply truck with plywood on August 8, 2001. On his application form for benefits, the claimant indicated that he had advised his employer of the accident the following day. When seen for treatment on August 9, 2001, the claimant was diagnosed with a right upper back muscle strain and medication was prescribed. The claimant continued working at his regular duties.

The next report was from a chiropractor dated August 25, 2001. The diagnosis rendered on this date was a "5th cervical fixation and strain" and the claimant was advised to remain off work. The claimant returned to modified duties on September 3, 2001.

Upon speaking with a WCB adjudicator on January 31, 2002, the claimant advised that he did not see a doctor until August 25, 2001 as he thought that his injury would go away but it kept getting worse. The claimant indicated that he did not tell anyone at work about his difficulties.

In a letter dated January 31, 2002, primary adjudication determined that the WCB would accept medical costs associated with the claim up to August 9, 2001 inclusive. Any medical treatment or time loss incurred by the claimant between August 26 to September 2, 2001 would not be a WCB responsibility as it could not be established that the medical treatment which the claimant received on August 25, 2001 was related to his August 8, 2001 accident. This decision was confirmed in later decisions dated February 13 and June 28, 2002.

On August 16, 2002, Review Office considered the case at the request of the claimant's union representative. It also considered an appeal submitted by the employer's representative dated July 31, 2002. Review Office ultimately determined that responsibility should be accepted for the worker's time loss from work commencing August 25, 2001 and it provided the following rationale for its decision:
  • the differences in diagnosis offered by the general practitioner and the chiropractor were inconsequential and referred to the same injury.

  • the claimant should have kept his supervisor informed that he was having ongoing problems, but Review Office did not find that this fact alone was a bar to compensation.

  • it was commonly accepted that muscular strain injuries could take 6 to 8 weeks to resolve. Review Office was reticent to believe that the strain injury sustained by the claimant on August 8, 2001 had resolved and that another injury occurred to the same anatomical area prior to the claimant seeing a chiropractor on August 25, 2001.
On August 27, 2002, the employer's representative appealed the above decision to the Appeal Commission. In a submission dated October 24, 2002, the employer's representative made reference to "the absence of any objective findings in the initial examination of August 9, 2001." The employer's representative went on to state, in part, the following:
"Although Mr. [the claimant] claims that the problem became increasingly worse subsequent to his assessment of August 9, 2001, he makes no mention of this fact to anyone at work and, did not seek medical attention during his four days of rest which encompassed the period August 21st to 24th, and fell on a Tuesday, Wednesday, Thursday and Friday respectively…".
The employer's representative concluded that the weight of evidence, when looked at in totality, did not support the decision of Review Office. On November 12, 2002, a non-oral file review took place at the Appeal Commission to consider the employer's appeal.

Reasons

As the background notes indicate, the claimant injured his upper back and right shoulder. Following the reporting of his accident to his supervisor, the claimant continued to perform his regular work duties for approximately the next two weeks. It was then that he sought chiropractic treatment. The employer brings forward this appeal contending "that a relationship between the treatment and time loss commencing August 25, 2001 and the compensable incident of August 8, 2001 has clearly not been established."

With all due respect to the employer, the evidence confirms that the claimant attempted to work through his discomfort resulting from the compensable incident by way of medication and days off. When it became apparent that his problem was not resolving satisfactorily, he then sought further health care assistance in the form of chiropractic treatment. We consider the claimant's actions to be reasonable under the circumstances. We find that the claimant's difficulties had not, on a balance of probabilities, completely resolved by August 25th, 2001. Accordingly, the claimant is entitled to wage loss benefits for the period of August 25th to 28th, 2001 inclusive.

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 2nd day of December, 2002

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