Decision #151/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 21, 2003, at the claimant's request. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that her claim was not acceptable. The Panel discussed the appeal on October 21, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 28, 2003, the claimant filed a claim with the Workers Compensation Board (WCB) with respect to a lower back injury that occurred on May 5, 2003 during the course of her employment as grad nurse with a temporary healthcare contractor. On this date, the claimant stated she was "performing A.M. care on immobile patients - requiring repositioning numerous times of each to change "diapers", bed sheets, clothing and repositioning for comfort." The claimant reported that she advised her employer of the accident on May 28, 2003.

Medical information on file consisted of two CT scan reports of the lumbar spine dated February 20, 2003 and May 26, 2003. Reports were also received from a physician who diagnosed the claimant with mechanical low back pain on May 12, 2003 and by a chiropractor who assessed the claimant on May 30, 2003 with "spinal joint dysfunction associated with subluxation degeneration complex."

In order to adjudicate the claim, a WCB adjudicator spoke with the claimant, several co-workers and the employer in June 2003 to obtain further particulars concerning the onset of the claimant's back discomfort, the medical treatment she received and details with respect to the reporting of the accident.

In a decision dated June 20, 2003, the claimant was notified by her adjudicator that her claim for compensation had been denied as primary adjudication had been unable to establish that the claimant's injury occurred at work. The following rationale was used in making this decision:
  • no specific history of accident was described to the treating physician when the claimant was assessed on May 12, 2003;

  • the claimant stopped working on May 25, 2003 and only reported her injury to the accident employer on May 28, 2003.

  • several co-workers confirmed that the claimant was applying ice/heat to her back but they were unaware of the cause for her back difficulties.
On July 10, 2003, the case was considered by Review Office based on an appeal submission from the claimant dated June 26, 2003. Review Office confirmed primary adjudication's decision that the claim was not acceptable. Review Office noted that the claimant had back trouble in January, February and March of 2003, which was significant enough to the point where her physician ordered a CT scan. Thus, the claimant admitted that she had low back problems which pre-dated the claim and she did not know what brought on that back condition. Review Office noted that the claimant's physician and co-workers were not advised of any May 5, 2003 incident and it was not brought to the employer's attention until more than three weeks later. After reviewing all the evidence, Review Office was not satisfied that sections 4(1) and 1(1) of The Workers Compensation Act (the Act) had been met. In August 2003, the claimant disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

This Appeal Panel is of the unanimous opinion that the claimant did suffer a personal injury to her back by an accident arising out of and in the course of her employment.

The claimant first reported on May 28, 2003 to the WCB that an injury had occurred at work on May 5, 2003. As there was some delay in reporting the injury to the WCB, the claimant was questioned extensively at the hearing of this matter about the onset of her symptoms and her previous medical history relating to her back. At all times, this Panel found the claimant's evidence to be credible and plausible.

The claimant testified that she originally injured her back in December of 2002. During this period of time, the claimant was studying to complete her BN degree, completing her practicum in public health and helping to raise three children at home. The symptoms of back pain came on gradually and were at first ignored by the claimant because of her busy, stressful schedule. Her symptoms peaked in February of 2003 and were gone by March of 2003. The claimant's physician diagnosed her with sciatica at this time and a CT scan performed in February of 2003 was essentially normal with no evidence of disc herniation. The claimant did not miss any work during this period and although prescribed pain killers she did not take them. She resumed her regular activities such as biking and running by April of 2003.

The claimant again began to experience painful symptoms in her back in early May of 2003. By this time the claimant had graduated from university and was working for a healthcare company that contracted nursing services to the hospitals. She was a new graduate intent upon making a good impression and therefore was not eager to complain either to her employer or her co-workers about the increasing pain in her back. Her employment duties at that time involved heavy patient care including helping stroke patients clean up. This involved a great deal of lifting of bodies.

The claimant testified that she recalled experiencing a sharp, excruciating pain radiating down her left buttock and leg on May 5, 2003 while cleaning a stroke patient. She was working a lot at the time and did not report the incident as she felt she could continue to work through the pain. The claimant was also at this time doing other contract work at a psychiatric geriatric ward where she had no heavy lifting to do. She worked this ward on four subsequent shifts after the incident on May 5, 2003 and because she was not performing any duties that involved heavy lifting, she felt that her back pain would subside.

Unfortunately, the claimant's back pain continued to worsen with her calling in sick for several shifts and finally not taking more shifts after May 25, 2003. The claimant was seen by her physician on May 12, 2003 but did not specifically state to him that she had suffered a work related accident as she felt that she was experiencing the same kind of problem that she had earlier experienced from December 2002 to March 2003. She testified that she always felt that her back was going to get better which is why she took sick days and did not make a WCB claim. However, as her back got progressively worse, she became aware that it was not going to get better. A CT scan performed on May 26, 2003 revealed "a very shallow left posterior paracentral disc herniation…".

The claimant finally reported her condition and accident to the WCB on May 28, 2003. She had never made a claim for WCB benefits before and was unfamiliar with the WCB reporting procedures. This coupled with the evidence that the claimant felt that she could work through her injury until it got better and the fact that she was a new graduate wanting to make a good impression on her employer and co-workers and therefore did not overtly complain about her condition, has convinced us that her claim is very credible. The fact that she did not complain (although she visibly was using ice packs and heat in front of her co-workers) because she wanted to "prove" herself and not have her employer or co-workers feel that she was not doing her work, is behavior that we find not uncommon in the circumstances. The fact that she also did not report her injury until she experienced actual time loss is also consistent with this attitude.

We also find that the activities that the claimant was performing in the course of her job duties are consistent with the possibility of an aggravation of the claimant's earlier back injury. The fact that the claimant's first CT scan showed no disc herniation while the second CT scan in May of 2003, did, is consistent with this possibility.

We note as well that the WCB procedures were not particularly well spelled out to the claimant during her orientation with the employer. An actual discussion with the claimant never took place regarding workplace accidents and reporting procedures. While this type of information session is not mandatory, it would have been helpful to the claimant in impressing upon her the necessity of reporting an accident in a timely fashion.

For all the above reasons, we find the claim of the claimant to be acceptable.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of December, 2003

Back