Decision #153/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 6, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 6, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 10, 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that he attributed to the nature of his job duties at his workplace. The claimant noted that he first attended a doctor for his back pain on November 1, 2002 and that he reported the injury to his employer about three weeks prior to that, i.e. October 11, 2002. The claimant advised the call centre that his back injury was considered a "progressive injury."

In February 2003, a WCB adjudicator obtained additional information from the claimant and his employer concerning the claimant's work duties that led to his lower back difficulties.

Other file information consisted of a report by an orthopaedic surgeon dated February 24, 2003, two reports by a chiropractor dated January 20, 2003 and February 6, 2003, x-ray and bone scan results dated November 5, 2002 and January 24, 2003 respectively and a copy of the claimant's application form for short term disability benefits.

Following consultation with the WCB's healthcare branch, primary adjudication advised the claimant on March 5, 2003 that his claim for compensation had been denied based on the following factors:
  • the opinion expressed by a WCB medical advisor that the claimant's lower back pain was related to his pre-existing conditions and not to his workplace activities;

  • there was no specific accident or injury that occurred in October 2002;

  • the difficulties experienced by the claimant in October 2002 were reported, but not as being work related. The claimant also applied for and received company benefits.
In correspondence dated April 10, 2003, the claimant's union representative asked primary adjudication to rescind its previous decision based on new evidence received from the claimant's treating chiropractor dated April 1, 2003. Following consultation with a WCB medical advisor and a WCB chiropractic consultant, the union representative was advised by the WCB that no change would be made to the original decision denying the claim as it was still the WCB's opinion that the claimant had significant pre-existing spondylolysis and spondylolisthesis at L5-S1 and that the lower back pain was not in any way related to his work place activities. On April 29, 2003, the union representative disagreed with this decision and the case was forwarded to Review Office.

On June 6, 2003, Review Office confirmed that the claim was not acceptable. Based on the weight of evidence, Review Office was unable to determine that the claimant suffered a personal injury by an accident arising out of and in the course of his employment. On August 14, 2003, the union representative appealed Review Office's decision and an oral hearing 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."

An X-ray of the claimant's lumbar spine taken on November 5th, 2002 revealed pre-existing grade 2 spondylolysis and spondylolisthesis of L5 on S1 and a narrowed L5-S1 disc space. We accept the claimant's evidence that his job duties were extremely repetitive and strenuous. The claimant stated that he would handle 1700 pieces of product, weighing on average 250 pounds each, during the period of his shift.

After having thoroughly taken into consideration all of the evidence, we find, on a balance of probabilities, that the claimant aggravated his pre-existing back condition while performing his work duties. Inasmuch as the claimant sustained an accident arising out of and in the course of his employment resulting in injury, we therefore find the claim to be acceptable. Accordingly, the claimant's appeal is hereby allowed.

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 December, 2003

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