Decision #124/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 27, 2005 at the request of the worker. The Panel discussed this appeal on April 27, 2005 and again on June 13, 2005.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On Friday, May 9, 2003 , the worker finished her evening shift at a personal care home. On Saturday, May 10, 2003 , she rested. When she woke up on Sunday, May 11, 2003 , she was in extreme pain.The worker was seen by a physician on May 13, 2003 . He described her injury as painful lower back post-working and suggested that the date of the accident was Saturday, May 10, 2003 . The worker returned to work on May 26, 2003 . No Workers Compensation Board (WCB) claim was filed at that time.
On July 10, 2003 , the worker contacted the WCB to report a July 2, 2003 injury involving her lower back. In her words, I felt lower back pain and pain in my right leg. Working and always bending has injured my back. Nothing specific has caused my injury.
The employer's accident report of that same date stated that the worker claims to have injured her back at work sometime previous to the date she reported her injury [and] left work 1 ½ hrs into her shift. She claims heavy workload over last few weeks has contributed to her back pain. In a letter attached to the report, the employer observed that the worker was off work with a sore back from May 12 25, 2003 . According to this letter, the worker was specifically asked if she had an injury at work which she denied.
On July 16, 2003 , primary adjudication contacted the worker to obtain more information regarding her back pain. According to the adjudicator's notes, the worker indicated that she completed her regular shift on May 9, 2003 and was not experiencing difficulty with her back. The worker did not identify any accidents or incidents at work nor did she point to changes in her job duties or increases in workload at that time. She went on to observe that she relaxed over the weekend and was not involved in any outside activities that would have aggravated or irritated her back in any way. The worker woke up on the morning of Sunday, May 11, 2003 , and her back was extremely sore. She visited her doctor on May 13, 2003 and was off work for two weeks to rest her back.
According to the adjudicator's notes, the worker returned to her regular duties on May 26, 2003 . Although she was having ongoing discomfort, she did not seek medical treatment between May 26 and July 1, 2003 . The worker did suggest that she was making ongoing complaints to her co-workers and the nurse in charge. The worker left work early on July 2, 2003 . She again stated there were no accidents or incidents at work and no changes in her job duties or increases in workload to account for her increase in symptoms on July 2, 2003 . The worker related her back problems to the constant bending, twisting, pulling and lifting performed during the course of her employment.
On July 18, 2003 , primary adjudication spoke with a co-worker who indicated that she did not recall the worker ever mentioning a work related history of injury. The co-worker did recall seeing the worker walking kind of funny while at work and on several occasions, asking the worker what was wrong. According to the co-worker, the worker's response was that her back was just acting up.
On July 21, 2003 , a second co-worker sent a hand written note to the WCB. She stated that she worked with the worker on July 2, 2003 and that the worker complained she was sick and could not stand it anymore. She said the worker left work before supper. The co-worker stated that she did not hear the worker complain about her back between May 26 and July 1, 2003 .
In a decision letter, dated August 5, 2003 , primary adjudication advised the worker that the WCB was unable to accept responsibility for the worker's back injury. In denying the claim, it placed particular emphasis on the fact that there was no work related history of injury initially provided and no confirmation of ongoing complaints from co-workers or the employer.
The worker provided more information to the WCB in October 2003. On November 10, 2003 , she wrote to the occupational health and safety coordinator of the employer and noted that I did not talk to the director of care at all about my injury except to clear up a misconception that she had injured her back gardening.
On November 14, 2003 , the attending physician offered his opinion that Although [the worker] does not recall a specific moment at work when she may have hurt herself, she was not involved in any other activity which would have caused the problem. She has no prior history of back problems. She does have a documented disc prolapse which was seen on a CT scan in August 2003. On balance of probabilities it would appear as though she sustained an acute disc injury at work.
In June 2004, the worker appealed the decision of primary adjudication. The case was forwarded to Review Office.
In a decision dated July 6, 2004 , Review Office determined that the claim was not acceptable given its view that the worker's low back condition was not the result of an accident, arising out of and in the course of, the worker's employment. In making its decision, Review Office gave significant weight to the fact that the worker finished her shift on May 9, 2003 and did not experience any difficulty with her back at that time. It noted that she was not involved in any accidents or incidents in work on that date. Review Office also observed that the back complaint occurred on Sunday, May 11, 2003 while the worker was at her home and that no WCB claim was filed with regard to that incident. In terms of the injury in July, Review Office noted that the worker had indicated nothing specific caused her injury.
On February 2, 2005 , the worker appealed Review Office's decision.
An oral hearing was convened before an Appeal Panel on April 27, 2005 . The worker began her presentation by noting that I've never had any prior back injuries, no accidents, no back pain to speak of whatsoever. She went on to argue that there was a material change in her job duties when she went from nights to evenings in January of 2003. She noted that there is a big difference in care, big difference in working part-time nights to full-time evenings
The worker took particular issue with the July 10, 2003 letter of the occupational health and safety co-coordinator at her workplace which claimed that she initially denied her back injury was work related. She took the position that she had never denied her injury was work related. In her view, the cause of her injury was constant bending, twisting, pulling, lifting, working full time hours.
The worker was not entirely certain whom she had talked to from her workplace about her May 2003 injury (whether it was the director of personal care or the occupational health and safety coordinator) or when these conversations had occurred. However, she indicated that she did not claim compensation because I didn't really understand it.
The worker did not point to a specific incident as the cause of her injury. I know there isn't a specific reason; I didn't fall, you know, I didn't twist so hard, because I've always used proper body mechanics, it just happened over time and that's what I want to stick to because that's true.
During the course of her presentation, the worker noted that she had no prior motor vehicle accidents. She reminded the Panel that her previous employment was not nearly as physical as her current job and that she did not play sports.
Details of the onset of the worker's pain became more apparent during the Panel's questioning. The worker observed that when she worked nights between October 2002 and early January, 2003, she had no back problems. She noted that she had no initial complaints when she began to work evenings. She suggested that over time, her back slowly got stressed out which she defined to mean no sharp pains but muscular discomfort.
The worker testified that she worked her last shift on Friday, May 9, 2003 . There were no sharp pains noted although there was a little bit of stress on [her] body. Likewise, on the Saturday, there was no sharp pain. Her back was a little stressed out; [i]t was just tired and a little sore.
On Sunday morning, May 11, 2003 , the worker could barely move as a consequence of a sometimes sharp pain radiating from her tailbone down her right leg.
In terms of the nature of her injury after her return to work on May 26, 2003 , the worker indicated that it was aching, the lower part of my back and it did radiate down my leg slowly.
The worker was unable to remember whether she had worked on July 1, 2003 but she recalled that prior to going to work on July 2, 2003, I found that my leg was really hurting . . . I just went to work. She confirmed that she did not perform any lifts or transfers on July 2, 2003.
Following a discussion of the case, the Appeal Panel requested additional information from the worker's employer as well as from one of her physicians.
The additional information received from her employer indicated that the worker had worked on May 9, 2003 but did not work May 10, 2003 . Likewise, the worker did not work on July 1, 2003 . In terms of any discussions regarding the worker's injury, the employer's director of personal care recalled only a friendly conversation with the worker. She did not note or document any report of a workplace injury. Conversely, she did not suggest that the worker had denied suffering a workplace injury. Like the worker, the director of personal care was unsure when these conversations occurred. The May 18, 2005 letter from the physician who saw the worker on May 13, 2003 , confirmed that the worker did not report any specific injury.
On May 25, 2005 , all interested parties were provided with copies of the information that was received by the Panel and were asked to comment. On June 13, 2005 , the Panel met again to discuss the case and to consider a final submission from the worker that was received on June 2, 2005 .
Reasons
While there is no doubt that the worker experienced a painful injury to her back related to a disc prolapse, the Panel finds on a balance of probabilities that the injury suffered was not as a result of an event arising out of and in the course of her employment.The Incident in May 2003
In making its decision, the Panel has considered the totality of the written and oral record. However, the Panel places particular emphasis on the following findings of fact with regard to the incident of May 2003:
- The worker changed jobs in January 2003. Her new evening shift was more physically demanding than her old night shift;
- However, the nature of back discomfort experienced by the worker prior to May 11, 2003 was in the nature of fatigue and muscular discomfort;
- No specific workplace injury or accident occurred on May 9, 2003, the worker's last shift prior to May 11, 2003;
- The worker was able to finish her normal workplace duties on May 9, 2003 without complaint;
- The worker did not work on May 10, 2003.
- The pain experienced on May 11, 2003 was a departure from the discomfort previously experienced. It was in the nature of a sharp pain beginning in the tail bone and radiating down the right leg;
- No WCB claim was filed by the worker at or near the time of her May 11, 2003 injury;
- The pain experienced by the worker upon her return to work on May 26, 2003 continued to be in the nature of a sharper, radiating pain.
The Panel also places no weight on the suggestion by the worker during the oral hearing that she may have advised the director of personal care that her May 2003 injury was workplace related. In rejecting this suggestion, the Panel notes the worker's letter of November 10, 2003 in which she indicated that "I did not talk to the director of care at all about my injury" except to clear up a misconception that she had injured her back gardening." Given its closer proximity to the dates in question, the Panel believes the worker's recollection of November 10, 2003 is likely to be more reliable than her admittedly uncertain recollection offered during the oral hearing. Likewise, the director of personal care in her letter of May 5, 2005 was unable to recall any suggestion by the worker that the May 11, 2003 injury was work related.
The Incident of July 2003
With regard to the incident of July 2003, the Panel places particular weight upon the following findings of fact:
- The worker finished her shift on June 30, 2003 without any material incident. There was no specific workplace injury or incident. The worker was able to complete her normal duties on that day;
- The worker did not work on July 1, 2003;
- Prior to going to work on July 2, 2003, the worker's leg was "really hurting" and it was affecting her ability to walk;
- The worker did not perform any lifts or patient transfer on July 2, 2003 prior to reporting her pain.
Section 1(1) of the Workers Compensation Act defines accident to mean:
"a chance event occasioned by a physical or natural cause and includes
- a willful and intentional act that is not the act of the worker,
- any
- event arising out of and in the course of employment, or
- thing that is done and the doing of which arises out of and in the course of employment, and
- an occupational disease,
The Panel's Findings
Based upon a balance of probabilities, the Panel is unable to relate the worker's injuries to an event arising out of and in the course of her employment.
In terms of the events of May 2003, there was no workplace injury or incident on May 9, 2003 and the worker was able to complete her normal workplace duties on that day. She awoke the next morning with nothing more than her normal muscular soreness. She did not work that day. It was not until Sunday, May 11, 2003 that the worker experienced the pain which prevented her from returning to work. The patient was at home at the time. The physician who examined her on May 13, 2003 noted that the worker did not report any specific injury.
Given the absence of a workplace incident and the period which had elapsed since her last day of work, the Panel concludes on a balance of probabilities that the injury suffered on May 11, 2003 was not work related.
The Panel's views on this point are reinforced by the fact that the worker did not file a contemporaneous report with the WCB. This suggests that at the time, the worker was also of the view that the injury was not an event arising out of and in the course of her employment. It is notable that while the worker appears to have advised one of her co-workers during June of 2003 that her back was acting up, she did not appear to have attributed this to a workplace injury.
In terms of the events of July 2, 2003, the Panel notes that the worker's last day of work was June 30, 2003. She was able to complete her normal workplace duties on that day and did not work on July 1, 2003. In terms of the events of July 2, 2003, the Panel observes that the worker was experiencing pain in her leg prior to going to work and that she did not perform any lifting or patient transfers before leaving her workplace on that date.
Once again, there is no specific incident in the workplace on either June 30, 2003 or July 2, 2003 to which an injury can be attributed. Likewise, there is a passage of time between the last day of work and the injury of July 2, 2003. In this case, the worker candidly notes that she was suffering from an injury before she went to work on July 2, 2003.
Given the absence of a workplace incident and the period which had elapsed since her last day of work, the Panel concludes on a balance of probabilities that the injury suffered on July 2, 2003 was not work related.
Conclusion
The injuries suffered by the worker on May 11, 2003 and July 2, 2003 cannot be tied to any particular incident at the worker's place of employment. The injuries also cannot be tied by proximity of time to the workplace. Both injuries took place following a day off from work.
Based upon a balance of probabilities, the Panel concludes that the claim is not acceptable. The appeal is denied.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of July, 2005