Decision #150/03 - Type: Workers Compensation
Preamble
A non-oral file review was held on October 10, 2003, at the request of a worker advisor, acting on behalf of the claimant.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On October 31, 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report right sided abdomen and low back pain which she attributed to an injury at her workplace on June 22, 2002. The claimant described her injury to the call centre as follows:- the onset of her right side and low back pain started in June 2002 and she reported the pain she was having to her supervisor on June 22, 2002. The claimant stated that she was told by her doctor to remain off work until she was able to see a specialist. She was off work due to the pain from June 22, 2002 to September 15, 2002 and again from September 20, 2002 onward.
- with respect to job duties, the claimant said she was responsible for wrapping and pricing packaged meat and putting it out onto the counter from the work area. These repetitive movements were the cause of her strain.
On November 18, 2002, a WCB adjudicator spoke with the claimant who stated she did not know about the WCB in June so she claimed with Sun Life as her employer instructed her to do. In June 2002 she told her manager that her problems were work related. The pain was in the middle of her ribs and the lower back area. She was not having any abdominal pains at that time.
The adjudicator spoke with the claimant's manager on November 20, 2002. The manager commented that in June 2002, the claimant first started having problems which she thought were related to gall stones. She did not complain about having a sore back or that it was related to any type of work activity. The manager indicated that the claimant kept in touch with him over the summer months while she was off work and that she never mentioned that her problems were related to work.
Medical reports on file revealed that the claimant was diagnosed with myofascial back pain by the insurance carrier's physician. The physician noted that the claimant's symptoms first appeared on May 17, 2002 and that she has had recurrent episodes of back pain for the past four years.
On December 9, 2002, the claimant was advised by primary adjudication that her claim had been denied as it was unable to establish that an accident as described under Section 1(1) of The Workers Compensation Act (the Act) arose out of and in the course of her employment. On February 13, 2002, a worker advisor appealed this decision to Review Office contending that the nature and conditions of the claimant's employment duties of repetitive twisting and turning aggravated her pre-existing right low back and abdominal condition.
In March 14, 2003 decision, Review Office confirmed the decision to deny the claim based on the following rationale:
- the claimant did not report a work injury or work event to her physician or to the employer. The claimant only complained about a stomach problem to her employer and not of any back problem;
- the physician who completed a statement for insurance purposes stated that the claimant's problems first appeared on May 17, 2002 and that she had recurrent episodes of back pain for four years. He indicated that the condition was not due to an injury or to sickness arising out of the employment.
In a decision dated May 23, 2003, Review Office determined that no change would be made to its earlier decision to deny the claim. Review Office stated the following:
"When we revisited the physician's chart notes of June 2002 we note that the first mention of back pain was on June 11, 2002. Up to this date the claimant was seeing her physician for abdominal pains "occurring daily" in which the physician referenced the "right flank". On June 11, 2002 the claimant reported to her doctor that she continued to have problems in her "right flank" area, and in the low back area. The claimant reported this constant, but worse at times…seems to be related to activity but reports more bloating and discomfort after meals. States pain going on for 4 years but worse lately." The physician continued in his chart notes stating that the verbal report from ultrasound reported the claimant's internal organ unremarkable and that the claimant had a tender right lumbar muscle. The physician reported his assessment as back pain, query myofascial pain syndrome."Review Office noted that the April 15, 2003 report from the same physician suggested the possibility of a relationship between the claimant's symptoms and a possible injury or aggravation at work. Review Office found this to be speculative as there was no evidence of a work event reported by the claimant to the WCB, to the employer or the physician. On July 2, 2003, the Review Office's decision was appealed by the worker advisor and a non-oral file review was arranged.
Following discussion of the case, the Appeal Panel requested additional information from a specialist who had assessed the claimant on August 14, 2002 with respect to her claim for short term disability benefits. A report from the specialist was later received by the Panel and was forwarded to the interested parties for comment. On November 12, 2003, the Panel met further to discuss the case and rendered its final decision.
Reasons
The background notes provide a thorough chronology of events surrounding this case. For this appeal to be successful, the panel would need to be satisfied that an accident occurred as defined by the relevant sections of the Act. We were not able to make that determination.In arriving at our decision, we carefully reviewed the entire file including all medical reports, the worker's and employer's accident reports, their later submissions, as well as the claim application for short term disability benefits. We have determined, on a balance of probabilities, that the workers medical difficulties are not causally related to her employment. We concluded that there was no accident and that the claim is therefore not acceptable. Our analysis is as follows.
We found the reporting on this claim to be problematic. We did note that the worker had previous work related injuries, as she had filled out green cards and workers reports. These reports resulted in WCB files being opened. This leads us to conclude that the worker did have knowledge of the WCB system and particularly the reporting of work-related accidents.
The worker's claim for WCB benefits was filed on October 31, 2002. The worker claimed for her low back and abdomen difficulties. The accident date was noted as June 22, 2002; however, we note the worker had actually gone off work on June 11, 2002. It is the employer's position regarding this claim that they were unaware of her health difficulties being work related. We note the WCB contacted the employer on several occasions and spoke to several supervisors, none of who confirmed they had any knowledge of the worker's medical difficulties being work-related.
The worker had been missing time from work in June 2002. She had reported to her employer that she had abdominal difficulties and went off work on June 11, 2002. The worker initially submitted a claim to the employer's insurance carrier for her difficulties. The sections of the claim form that are relevant to our consideration are the sections questioning whether this is an accident and whether a claim will be filed for Workers Compensation. Both sections of the form are checked "NO". Attached to this claim form is the attending physician's statement. The physician in this case noted that "the patient has had recurrent episodes of low back pain over the last four years". The physician also noted a negative response to the question of whether this condition was due to an injury or illness arising out of the patient's employment. The physician forwarded his progress notes and does note the claimant has back pain and pain in the right flank. He notes the pain relates to activity but gets more bloating and discomfort after meals. He notes that she has pain going on for 4 years but it is worse lately.
The panel also reviewed the physician's reports. We note that the worker had been visiting her physician for abdominal pains prior and into June 2002. The back pain was recorded in his June notes, but no relationship was specifically made to work activities. We note this physician queried myofascial pain syndrome and referred to a physical medicine specialist. This specialist in his August 2002 report also notes that the worker reported right flank pain of long duration. While he notes that she has mild to moderate Myofascial Pain Syndrome, he does not causally relate her condition to a work-related accident.
In conclusion, we find this worker did not report a work related accident to her employer or her treating physician. Her claim for insurance disability benefits was supported by her physician as not being work-related. The evidence therefore does not establish a work-related accident. The claim is not acceptable and the appeal is denied.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of December, 2003