Decision #120/04 - Type: Workers Compensation

Preamble

A non oral file review was held on August 3, 2004, at the claimant's request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In May 2002, the claimant advised the Workers Compensation Board's (WCB) call centre that she had injured her lower back on May 16, 1997 during the course of her employment as a nurse's aide. The accident was described to the call centre as follows:
"I was doing a lift of a patient and when I lifted the patient, I wrenched my back. I kept on working and finished my shift. Over time, my back has been bothering me. I thought it was my hip because it has been sore but my doctor said it was my back."
Medical information was received from a physician dated August 2, 2002 who stated that he first saw the claimant for her back injury on July 4, 2002. The claimant underwent x-rays and was not referred for any further treatment as the pain had subsided when she was seen for further review on July 11, 2002. Furthermore, the July 4, 2002 x-ray report of the lumbar spine revealed vertebrae and disc spaces intact and normal sacroiliac joints. The physician noted that the claimant's back would typically flare up after lifting something too heavy or turning her back too quickly.

On August 19, 2002, the claimant was advised by the WCB that her claim had been denied as the evidence on file did not establish that an injury occurred at work. The adjudicator noted that the employer had been contacted and it had no record or knowledge of the claimant's sustaining a back injury in May of 1997. The doctor who the claimant said she saw in 1997 was also contacted and he had no record of treating the claimant in 1997 for a lower back injury.

The case was then considered by Review Office on March 28, 2003 following receipt of an appeal by the claimant dated January 27, 2003 and after speaking with the claimant by phone on March 28, 2003. In its decision, Review Office confirmed that the claim was not acceptable. The following is an excerpt from Review Office's decision letter:
"The file evidence shows that on August 7, 1997 the claimant experienced a work event when the resident that she was assisting, had their legs give out. The claimant reported to her employer that day describing this event and reported that she heard her back crack. However, there is no medical evidence to support that the claimant experienced an injury from that work event. There is no evidence to support that the claimant attended a doctor for any injury occurring on that date, nor a diagnosis to support that the claimant had suffered a work injury. In any event, the totality of the evidence does not confirm that the claimant had suffered a personal injury by an accident arising out of and in the course of her employment on August 7, 1997."
In February 2004, the Appeal Commission received the claimant's application to appeal Review Office's decision of March 28, 2003. Included with the appeal form was additional information consisting of a CT scan of the lumbar spine dated July 31, 2003. On August 3, 2004, a non-oral file review took place at the Appeal Commission to consider the claimant's appeal.

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."

On May 23, 2002, the claimant filed a worker's accident report with the WCB alleging that on May 16, 1997 she sustained a compensable injury during the course of her employment while lifting a patient and that the incident was reported to her supervisor. The employer, however, has no record of any work related incident having occurred on the date in question.

It should be noted that the claim for compensation was filed five (5) years after the alleged incident. The Act prescribes that a claim is be filed "within one year after the day upon which the injury occurred." However, section 109 of the Act furnishes the Panel with the discretion to enlarge the time for filing applications where an injustice would result. We do not feel constrained to exercise the statutory discretion in this particular case.

We agree with the following findings made by Review Office:
  • There is no medical evidence to support the contention that the claimant incurred an injury as a consequence of the alleged work incident.

  • There is no evidence confirming the claimant's seeking medical treatment for a work related injury on either the day in question or subsequent to the alleged event.

  • There is no clinical diagnosis to corroborate a work related injury.
We find based on the weight of evidence that the claimant did not, on a balance of probabilities, sustain an accident arising out of and in the course of her employment resulting in injury. Therefore the claim is not acceptable and the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of September, 2004

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