The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 10, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 10, 2004 and again on March 25, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 16, 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back and right leg/buttock injury that occurred on January 15, 2003, during the course of his employment as a machine operator. The claimant described the accident as follows:

“I have to attach a smaller piece of equipment (4 x 4, 50 – 60 lbs) onto a larger piece of equipment. I was lying on my back and lifted the smaller piece with my legs and arms, and I felt a shooting pain in my right leg. It felt like I pulled a muscle in my lower back and my right leg was painful.”

The claimant stated that he reported the above accident to his employer on April 22, 2003 as “the pain wasn’t that bad until then. It was always there, but I could deal with it.”

Initial medical information revealed that the claimant sought treatment from a general practitioner on April 22, 2003. The diagnosis rendered was a gluteal muscle strain with inflammation. It was noted that the claimant was not capable of any work that required lifting or bending of the back.

Reports were also received from a chiropractor who initially examined the claimant on June 19, 2003. The diagnosis rendered was subluxation of the L4-L5 with associated neuropathy of the sciatic nerve with possible disc involvement. It was felt that the claimant was disabled from work and could not perform any alternate or modified work. Chiropractic x-rays of the lumbosacral spine dated June 19, 2003, revealed “Discopathy L5. Altered lordosis. Pelvic unleveling & rotation with listing & severe vertebral rotation of the lumbar spine.”

On July 7, 2003, a WCB adjudicator contacted the claimant by phone to ascertain why he delayed in reporting his injury and with seeking medical attention. The claimant explained that at the time of his injury, he did not feel it was serious and thought that it was a pulled muscle and that it would get better. He said that he advised his team leader of the January accident. The claimant also noted that his difficulties became worse when he had a flu/cold in April and that this aggravated his condition.

In a conversation that took place with the employer on July 29, 2003, a WCB adjudicator noted that the employer first became aware of the claimant’s accident in April 2003 because that was when the claimant first began to have difficulties.

The employer did not have any real concerns with the claim but stated that it was hard to tell that his problems were a result of his job duties because of the amount of time that had passed. The claimant had never been the type to abuse the system and he knew that the claimant was in a lot of pain. When the claimant explained how he had injured himself, efforts were made to change the way in which the job was performed because the employer realized that it was in an awkward position.

On August 11, 2003, the claim was denied by primary adjudication as it had been unable to establish that an accident occurred on January 15, 2003. Sections 4(1) and 17(5) of The Workers Compensation Act (the Act) were quoted in the decision. On September 23, 2003, a union representative, acting on behalf of the claimant, appealed this decision to Review Office.

In an October 15, 2003 memo, Review Office stated that it had contacted the team leader (through the employer’s plant manager) and the team leader had no recollection of the claimant telling him about an accident at work in January 2003.

On October 21, 2003, Review Office confirmed primary adjudication’s decision to deny the claim based on the following rationale:

• the claimant admitted to neither reporting his accident to his employer or seeking medical attention for his injury for more than two months after the date of the alleged occurrence.

• Review Office could not accept the explanations provided by the claimant with respect to his delay in reporting the accident and seeking medical attention given the severity of his symptoms which he reported on his application form for benefits (i.e. shooting pain in his right leg and he felt like he had pulled a muscle in his back and his right leg was very painful) which he claimed to have experienced on January 15, 2003.

• the team leader was not aware of the claimant’s injury in January 2003.

The decision also cited ss. 17(1) and (5) of the Act.

On November 27, 2003, the claimant’s union representative appealed Review Office’s decision and an oral hearing took place on February 10, 2004.

During the course of the hearing, the claimant provided a further description of what he considered to be the workplace accident.

“You have to then get underneath the ram, on your back, lift with your legs and arms, slide it into some slots and then somebody else put screws in to hold it in place. . . you have to lift that up, sixty pounds or so, and put it into slots, somebody attaches that to the bigger plunger.” (Transcript, pp. 6 -7)

The claimant noted that his body was in tension as he had to hold the ram in place for about two minutes. He indicated that:

“It's the only time I've ever done it . . . and I wasn't really sure how I was doing it, I was kind of slipping and sliding over.” (Transcript, p 7)

He suggested that it was during this time that he experienced a sharp pain in his leg (Transcript pages 7, 8, 39).

During the course of the hearing, the union representative drew the panel's attention to the First Reports of the Doctor (June 20, 2003) and Chiropractor (June 24, 2003) which she considered to present significant objective findings of an ongoing back injury.

In particular, she emphasized an X-Ray Report June 19, 2003 describing decreased lordosis which she attributed to the soft tissue and muscle around the injury going into spasm to protect the area. In her submission, the decreased lordosis suggested a longer term injury. “The evidence shows that there was something going on in this gentleman's back for a period of time before the x-ray was taken.” (Transcript, page 18)

In his comments, the employer's representative noted that the employer had changed the process to which the injury was attributed so that its employees no longer have to manually lift the attachment. In terms of the claimant himself, the employer's representative observed that “(h)e's very quiet and soft-spoken and we have no record of him having any abusive claims or anything like that.” (Transcript, p. 22)

Following the hearing and discussion of the case, the Appeal Panel requested additional medical information from the claimant’s treating physicians.

This additional material included a September 8, 2003 report from an orthopaedic specialist suggesting that the client's symptomatology was in keeping with a disc protrusion at L5-S1. A report from a Sports Medicine doctor dated March 3, 2004 (based upon a September 22, 2003 examination) also noted a diagnosis of a probable disc herniation with findings of neurological impairment of the right S1 nerve root.

This diagnosis was confirmed in a September 29, 2003 report of the results of a MRI of the lumbar spine which concluded that “at the L5-S1 level there is a moderate-sized central and right paracentral disc herniation. The disc material contacts the S1 nerve root bilaterally and there is posterior displacement and compression of the right S1 nerve root. There may be a very slight displacement and compression of the left S1 nerve root as well.”

On March 9, 2004, all interested parties were provided with copies of the additional information that was received by the Panel and were invited to provide comment. On March 25, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

There is no dispute that there was an injury preventing the claimant from working for a period of time. The crucial question is whether, on a balance of probabilities, the injury arose out and in the course of the claimant's employment. The issue is complicated by the three month delay in reporting the alleged workplace accident of January 15, 2003 to the employer.

In the circumstances of this case, the panel is of the view, that on the balance of probabilities, the injury in question arose out of and in the course of the claimant's employment. In making this determination, the panel has focused on the nature of the injury as confirmed by the new medical evidence and its consistency with the mechanism of injury as described by the claimant during the oral hearing. The panel's deliberations were also guided by its assessment of the credibility of claimant as demonstrated through the oral hearing and through the comments of the employer's representative.

As the September 2003 MRI and reports by the orthopaedic specialist and Sports Medicine doctor suggest, the claimant was suffering from a disc herniation with a consequent neurological impairment of the right and perhaps the left S1 nerve root. In the panel's view, the nature of the injury is consistent with the claimant's description of the pain he experienced at the time of the January 15, 2003 injury and of the symptoms he experienced over the five months leading up to the time that his claim was filed.

The panel is also of the view, that the mechanism of the injury is consistent with the diagnosed injury. The claimant's evidence, as confirmed by the employer, suggests that the operation in question required the claimant to be on his back in an awkward and confined position while pushing upwards with his arms and legs on a 60 pound piece of equipment, to install the equipment. The nature of the injury coupled with the task being performed and the experience of a contemporaneous sharp pain in the leg persuades the panel, on a balance of probabilities, that the injury in question is a result of the January 15, 2003 workplace accident.

The Panel notes that both initial adjudication and Review Office made reference to s. 17 of the Act. Section 17(1) provides that:

Notice of accident
17(1) In every case of injury to a worker by accident in any industry within the scope of this Part, the worker, or in the case of his death, a dependant, shall, as soon as practicable, but in any case not later than 30 days after the happening of the accident, give notice thereof to the employer.

Section 17(5) provides that:

Failure to give notice a bar to any claim
17(5) Failure to give notice by virtue of this section, unless excused by the board, on the ground

a) that notice for some sufficient reason could not be given; or

b) that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or

c) that the board is of opinion that that the claim is a just one and ought to be allowed is a bar to any claim for compensation under this Part.

The panel has considered the delay in the notification of the employer and the filing of the claim but in the particular circumstances of this case, it is persuaded that the claim is a just one that should be allowed. The panel would note the claimant's evidence that he tried to self medicate and the fact that even after the claimant had notified his employer of his injury in April 2003, he tried to work through his injury for almost another two months.

The panel considers the claimant to be credible and it concurs with the views expressed by the union representative that the delay in making the claim reveals more about the claimant's stoic personality than it does about the legitimacy of his claim. As the employer's representative noted "(h)e's very quiet and soft-spoken and we have no record of him having any abusive claims or anything like that."

In summary, the description of the workplace injury coupled with the nature of the claimant's injuries has persuaded the panel that the accident arose out of and in the course of employment. The panel's views are fortified by its assessment of the credibility of the claimant as verified by his employer.

The Panel finds that the claim is acceptable and expresses its appreciation to the union representative, the employer's representative and the claimant for their assistance in its deliberations.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of May, 2004