Decision #113/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on September 12, 2003, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant filed a claim with the Workers Compensation Board (WCB) on September 21, 2001, for a groin and lower back injury that occurred at work on March 19, 2001. The claimant described the accident as follows:
"My job was to wash trucks which necessitated climbing up and down off of the rigs. I strained my groin and lower back in the same area as I had injured it in the previous injuries in the proceeding August and November. I didn't feel the pain or the strain immediately but after some activity on the rigs, after returning home I felt the onset of the injury."
Medical information on file consisted of a Doctor's First Report dated April 4, 2001. The report showed that the claimant was examined on March 2, 2001 with complaints of swelling and pain into his back. The diagnosis rendered was a possible right inguinal hernia and the claimant was referred to a surgeon for further assessment. In a subsequent report dated April 10, 2001, the surgeon reported that he could not detect a hernia and that the claimant's pain was most likely muscular in origin.

On October 9, 2001, several WCB staff members met with the claimant and his solicitor to obtain additional information regarding his claim. This included details regarding the mechanics of the accident, the claimant's work history and job duties, the onset of his symptoms and his reporting of the accident to the employer. The employer was also contacted on October 10, 2001, regarding his knowledge of the accident in question.

In a letter to the claimant dated October 10, 2001, primary adjudication concluded that the claim was not acceptable. Primary adjudication noted that the claimant reported symptoms in his groin and lower back which started on March 19, 2001, and which he related to climbing up and down trucks. The claimant stated that his supervisor was aware of his difficulties as well as the claimant's visible limp. The claimant was then laid off on March 23, 2001 due to a shortage of work. The employer informed the WCB that no report of injury was ever made. Based on this evidence, primary adjudication was unable to establish that an accident had arisen out of and in the course of the claimant's employment. This decision was appealed by the claimant's solicitor on October 24, 2001 and the case was referred to Review Office for consideration.

On November 16, 2001, Review Office confirmed that the claim was not acceptable based on the following rationale:
  • the delay in seeking medical attention;
  • confusion regarding the history of the condition, i.e. inconsistencies in the reporting of any work related injury to the involved physicians; and
  • the WCB's inability to confirm the reporting of any accident to the employer.
On May 1, 2002, the claimant's solicitor provided Review Office with additional medical information dated January 28, 2002 through to April 23, 2003 for consideration. In a decision dated May 24, 2002, Review Office determined that the new information did not alter its previous decision rendered on this claim. On June 26, 2003, the solicitor appealed Review Office's decision and a non-oral file review was arranged.

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 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."
We do not find the claim to be acceptable as there has been no confirmed injury resulting from the claimant's alleged accident. It has been asserted that the claimant experienced a disc herniation as a consequence of his climbing up and down trucks. Symptoms normally associated with a disc herniation were not present at the time of the March 19th, 2001 incident. This determination is borne out by the reported medical findings at the time.

In this regard, a CT scan dated March 27th, 2002 conducted a year following the alleged incident noted "a broad-based right paracentral and right posterior disc herniation with compression of the right S1 root and to a lesser extent the exiting right L5 root."

We have reviewed the symptoms reported by the claimant and note that his symptoms of groin pain do not coincide with the symptoms normally associated with a L5-S1 disc herniation. In addition, no other pathologies had been identified at this point in time.

Inasmuch as we have found the claim not to be acceptable, the claimant's appeal is hereby dismissed.

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 9th day of October, 2003

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