Decision #50/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on February 27 2004, at the employer's request.

Issue

Whether or not the claim is acceptable; and

Whether or not the duration of benefits paid to the claimant from May 28, 2002 to July 27, 2002 is appropriate.

Decision

That the claim is acceptable; and

That the duration of benefits paid to the claimant from May 28, 2002 to July 27, 2002 was appropriate.

Decision: Unanimous

Background

During the course of his employment on May 27, 2002, the claimant reported that he heard his lower back crack when he was getting down from an autoscrubber. The accident was reported to the employer the following day.

In the employer's report of injury for this claim, the employer stated the following: "Employee states that in the normal action of getting off of the autoscrubber in a twisting motion heard his lower back crack. He continued to work through the night and informed his supervisor in the AM. When asked if he ever had back problems before he stated 'yes' to OPS manager [Name]."

On May 28, 2002, the claimant attended a chiropractor for treatment. The diagnosis rendered was an L5 disc prolapse.

X-rays of the lumbosacral spine dated June 4, 2002, revealed a grade one spondylolisthesis at the L5 region.

On June 10, 2002, a WCB adjudicator spoke with the operations manager who noted that on the morning of May 28, the claimant advised him that he had injured himself while getting down off the autoscubber. He also noted there had been one witness to the accident.

On July 20, 2002, the treating chiropractor reported that the claimant could return to modified work on July 28, 2002 with restrictions for 1-3 weeks.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant between May 28, 2002 to July 27, 2002. On October 3, 2003, the employer appealed the acceptance of the claim to Review Office along with the claimant's entitlement to benefits between May 28, 2002 and July 27, 2002.

On October 21, 2003, the Review Office denied the appeal brought forward by the employer. The employer argued that the claimant did not sustain an injury to his lower back while getting down off the scrubber on May 27, 2002 and that the motion of getting down off the scrubber was no different than walking up or down stairs. The employer contended that the claimant's back problems were pre-existing in nature. Review Office acknowledged that the claimant did have some pre-existing factors in his lower spine that may have contributed to the severity of his injury, but the injury was precipitated by the nature of his employment activities.

In addition, Review Office noted that it had reviewed the length of time that the claimant had been on benefits and found this to be appropriate, given the medical information on file and the employer's ability to accommodate the claimant in modified duty work effective July 28, 2002. On November 5, 2003, the employer 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
As the background notes indicate, this case involves an appeal by the employer challenging the acceptance of the worker's claim by the WCB. However, we find based on the weight of evidence, as described in the background, that the worker did in fact sustain an accident resulting in injury, which arose out of and in the course of his employment with the appellant employer. With respect to the worker's injury, we further find that he suffered, on a balance of probabilities, an aggravation of his pre-existing condition (Grade 1 spondylolisthesis of L-5). Accordingly, the claim is hereby acceptable.

In addition, the weight of evidence clearly confirms the claimant's entitlement to benefits over the period of May 28, 2002 to July 27, 2002 is appropriate. The modified return to work program was established and put in place over a two (2) week period, which under the circumstances would be reasonable in our view.

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 7th day of April, 2004

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