The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 1, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 1, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 1, 2002, the claimant telephoned the call center at the Workers Compensation Board (WCB) to report a work related accident that occurred on February 8, 2002. The claimant described his accident to the call center as follows: I work with jeans and I was picking up a bundle and felt a twinge in my back. I kept working and it slowly got worse over time and eventually I felt numbness above my knees and in my big toes.

The claimant reported the accident to his supervisor and to human resources some time in March 2002. His last day at work following the accident was February 27, 2002. The claimant said it was hard to say what amount of his time loss was due to the work accident or with the cancer that he had been diagnosed.

The employer's accident report showed that on March 19, 2002, the claimant reported a sore back which occurred on February 8, 2002. He saw a doctor on March 20, 2002 who felt it was not a WCB claim. The claimant had been on sick leave since March 21, 2002 and he was scheduled for chemotherapy.

In order to adjudicate the claim, the adjudicator contacted the claimant to gather additional information concerning the job duties that led to his back difficulties. The claimant was also asked questions pertaining to the medical treatment being received and details regarding how and when he reported his back difficulties to the employer. Contact was also made with the claimant's supervisor and several co-workers inquiring about their knowledge of any back difficulties experienced by the claimant.

Medical information consisted of reports from the claimant's attending physician, treating surgeon and an oncologist. In a memo dated May 30, 2002, a WCB adjudicator recorded that the claim was accepted for a "back strain only."

On June 20, 2002, a WCB case manager notified the claimant that he was entitled to wage loss benefits between February 28, 2002 and March 20, 2002 inclusive and final. Based on the existing file evidence, it was concluded that the compensable injury was likely soft tissue in origin and that any ongoing problems or symptoms at this point in time were likely related to other non-compensable factors. The claimant was further advised that he would be examined by a WCB medical advisor to confirm these findings.

A WCB medical advisor examined the claimant on June 26, 2002 to assess his low back complaints and their relationship to the compensable injury.

In a letter from primary adjudication dated July 26, 2002, the claimant was advised that it was the WCB's opinion he had sustained a soft tissue injury as a result of his compensable injury and that physiotherapy treatment was warranted. Following physiotherapy treatments, the claimant would probably be fully recovered from the effects of his compensable injury.

In a September 3, 2002 submission to Review Office, an advocate representing the employer, appealed the acceptance of the claim. The advocate outlined his position that the requirements of Sections 4(1) and (1) of The Workers Compensation Act (the Act) had not been met.

In a decision dated October 11, 2002, Review Office agreed that the claim was not acceptable. Review Office reached its conclusion based on the following factors:

• the claimant admitted that he did not advise his employer of an alleged injury occurring on February 8, 2002 until March 19, 2002, a gap of 5 ½ weeks.
  
  
• one co-worker indicated that the claimant never advised him how his back had become sore. He did remember that the claimant mentioned his back was sore one week before he left work. The second co-worker advised the WCB that the claimant told him that he felt pain in his back while lifting jeans. He was aware of the claimant's having difficulty with back pain in February and March. Review Office said that the information was confusing after taking into account the fact that the claimant had advised the WCB when he reported the injury that he was not sure of what was causing his back pain, i.e. his non-compensable condition and/or the February incident.
  
  
• in the February 17^th initial medical report the attending physician made the comment 'no injury'. If the claimant had injured his back in any specific incident, why did he not report this to his physician?
  
  
• in a memo to file dated June 4, 2002, a WCB medical advisor stated, in part, that a lymphoma could cause back symptomatology because of the swollen lymph nodes in the area of the lower spine, pelvis and inguinal region pressing on nerves that supply the legs.

Based on the above, Review Office was not satisfied that the criteria set out under sections 1(1) and 4(1) of the Act had been met in order to accept the claim. On December 13, 2002, a union representative appealed Review Office's decision on behalf of the claimant and an oral hearing took place on May 1, 2003.

Reasons

Section 4(1) of 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 keeping 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 occupational disease

and as a result of which a worker is injured."

The claimant injured himself as he was picking up a bundle of jeans. His pain and discomfort became worse and worse until such that he sought medical treatment approximately 7-10 days after the incident at a walk-in clinic. The eventual working diagnosis was a low back strain. This diagnosis was later confirmed on examination by a WCB medical advisor. "It is my feeling that the claimant has a lingering amount of back pain which, as described above, likely represents a facet strain/sprain. On balance, this would likely be related to the lifting injury he performed."

The evidence further revealed that shortly after ceasing his work duties the claimant was diagnosed as having a non-Hodgkin's lymphoma. In discussion with the case manager, the medical advisor, who ultimately endorsed the working diagnosis, commented on this secondary diagnosis as follows: "The lymphoma can cause back symptomatology because of the swollen lymph nodes in the area of his lower spine/pelvis/inguinal region pressing on nerves there that supply the legs."

A November 28^th, 2002 letter authored by the claimant's treating oncologist (specialist in tumors) was introduced into evidence at the hearing. In this letter the specialist categorically states: "I have no reason to believe that Mr. [the claimant's] lymphoma or the treatment thereof relate in any sense to his back symptoms." We attached considerable weight to this piece of evidence in arriving at our final decision.

We accept the claimant's explanation for his delay in reporting his compensation claim. He believed that his back symptoms would resolve without his having to seek medical attention and that his filing of a WCB claim would impact on his being able to secure future employment. In addition, the claimant was under the mistaken belief that his filling in of the 'green card' was actually filing a report with the WCB.

After having taken into consideration all of the evidence, we find that the claimant did sustain an accident, which arose out of and in the course of his employment resulting in personal injury. Accordingly, we find the worker's claim to be acceptable and hereby allow the appeal.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of June, 2003