The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 16, 2004, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits commencing December 2002.

Decision

That the worker is not entitled to wage loss and medical aid benefits commencing December 2002.

Decision: Unanimous

Background

The worker injured her back and hip in October 2001. She did not report the injury to the Workers Compensation Board (WCB) until June 2003. The WCB sought information from the worker, her employer, physiotherapist, chiropractor and treating physicians.

In a telephone conversation on August 15, 2003 with a WCB adjudicator, the worker confirmed:

• The correct date of accident was some time before October 11, 2001 when she attended a chiropractor for treatment.
  
  
• The worker did not advise the chiropractor that her condition was work related.
  
  
• The worker did not miss any time from work but did report an accident to two supervisors. She continued to work at her regular duties.
  
  
• She received a job promotion and was working in the flower department which was lighter work. As she continued to work, her back was bothering her and she was having problems lifting and sleeping due to pain.
  
  
• In December 2002, the worker quit work as her back was getting worse.
  
  
• On June 24, 2003, her attending physician said she had a herniated disc and at that point she decided to file with WCB.
  
  
• The worker was claiming full time loss from December 27, 2002 as she was still unable to do any type of work and was of the view that it was related to her October 2001 injury.

The WCB adjudicator contacted the worker's employer (store manager) on August 18, 2003 and was advised:

• The store manager was aware of a no time loss accident in October 2001 but was unsure of the date. He recalled that the worker did injure her back. The worker continued to work at her regular duties and did not have any restrictions.
  
  
• The store manager was not aware of any ongoing back problems that the worker had between October 2001 and December 2002.
  
  
• When the worker left work in December 2002, she quit abruptly as her physician had advised her she better quit as she had problems with her wrist and arms. No back problems were reported.

Initial medical information consisted of a report from a physiotherapist dated July 9, 2003. The diagnosis rendered was L4-5 osteoarthritis as confirmed in a CT scan, and disc bulging.

The treating chiropractor advised that the worker was seen in October 2001 for hip and lower back pain but did not relate her problems to work.

A general practitioner reported that he saw the worker on December 3, 2002. The diagnosis provided was low back pain. In a separate report on the same date the general practitioner indicated that the worker has LBP (low back pain) and osteoarthritis.

The worker had both a CT Scan and x-ray. The CT Scan found no central or lateral spinal stenosis or disc herniation. At L4,5 facet OA changes with minor ligamentous hypertrophy but no significant stenosis and disc herniation. At L5, S1 diffuse disc bulging but no central or lateral spinal stenosis or disc herniation.

The X-ray report notes "Minor scoliosis convex right. A fibrous narrowing is suspect, the remaining disc interspaces are normal. Facet degenerative changes on the left at L4, 6 and L5, S1." The x-ray found no bone or joint abnormality. The impression was of slight lumbar spondylosis.

The WCB accepted the worker's claim for injury on October, 2001, as a no time loss basis, but did not accept responsibility for any relationship between the October 2001 injury and any ongoing problems with her back beyond December 27, 2002. It was confirmed that following the injury in October 2001, the claimant continued working at her regular duties until she left work in December 2002. The WCB found there was no indication of ongoing problems and that the evidence indicates no relationship exists between the injury of October, 2001 and the recent time loss in December, 2002." On November 4, 2003, the worker disagreed with this decision and the case was forwarded to Review Office for consideration.

On November 28, 2003, Review Office determined that the claimant was not entitled to payment of wage loss benefits or the provision of medical services commencing December, 2002. Review Office stated that to accept responsibility for the worker's ongoing back and hip problems, it had to be established that these problems were caused by an accident that arose out of and in the course of the worker's employment. Review Office could find no correlation between the "vague" incident in October 2001 and the worker's eventual problems in December 2002 when she stopped working.

The worker appealed Review Office's decision and a non-oral file review was arranged. On June 16, 2004, an Appeal Panel reviewed the case and considered submissions from a worker advisor dated May 31, 2004 and from the employer dated June 7, 2004.

Reasons

As noted in the background we conducted a review of this case. The worker was assisted by a worker advisor who made a written submission outlining her position. A written submission was made on behalf of the employer.

The issue before us was whether the worker is entitled to wage loss and medical aid benefits commencing December 2002.

For the worker to be successful in this appeal, we must find that the worker's time loss and medical treatments commencing in December 2002 are related to her compensable injury of 2001. We were not able to make this determination.

In a submission dated May 2004, the worker notes that " Because of my employment with [employer] with duties of heavy lifting of cases of anti-freeze where there was a injury, then continuing to work, while the inflammation built up in my back, I feel that I'm entitled to wage loss & medical aid." She advised that when first injured in 2001, she did not think her injury was "as bad as it was". As well, she thought the pain and aching in her back was due to other health conditions. She continued to work but got to the point that she could not function so quit her job. She notes that "the reason I gave to my employer for quitting was that my back was pretty much done in."

We were not able to find, on a balance of probabilities, that a relationship exists between the worker's injury of October 2001 and time loss from work and medical expenses which commenced in December 2002. In making this decision we rely upon the following evidence:

• The worker never advised her employer of any problems with her back. When she quit work in December 2002 she advised the employer that she quit due to problems with her wrist and arms. The employer was not aware of a problem with the worker's back.
• The worker was treated by a chiropractor for hip pain, lower back pain and upper back pain in October 2001. Her last treatment appears to have been November 22, 2001. There was no indication at that time, or through continuing medical treatment, to suggest that she had an ongoing problem with her lower back.
• The worker did not seek medical attention until December 2002, approximately a year after the last chiropractic treatment.
• In December 2002, she was treated for lower back pain. A diagnosis of osteoarthritis was provided by the treating physician.
• The x-ray and CT Scans support a diagnosis of a degenerative condition in the worker's back.

We find the evidence does not support, on a balance of probabilities, a relationship between the injury of October 2001 and the time loss and medical expenses she has incurred since December 2002. We find that her time loss and medical expenses since December 2002 and her current symptoms are more likely related to the pre-existing degenerative changes in her lower back. The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of June, 2004