Decision #127/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 21, 2005 at the request of a worker advisor, acting on behalf of the worker. The Panel reconvened on June 9, 2005 and the Panel discussed the case following the reconvened hearing.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On August 25, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for progressive lower back difficulties that she attributed to her job activities that involve lifting trays of coins to waist height. She stated that it took 8 trays to fill her cart which occurred 25 times per shift. The worker stated that she reported her symptoms to two supervisors when she brought notes in from her chiropractor. With respect to an accident date, the worker believed that her back difficulties began in March 2003 but stated that her chiropractor would have the correct date.The Employer's Accident Report, signed by the worker's manager on August 29, 2003, stated that the worker reported that her back injury resulted from repetitive lifting of trays of coins over time and there was no specific incident that led to the injury.
On September 2, 2003, a WCB adjudicator recorded a telephone conversation that he had with the worker regarding her claim. The worker confirmed that she did not have any back problems prior to the incident at work in January 2003 when she bent over to lift some coins and felt a sharp pain in her back. She did not say anything at the time because she thought it would get better. The next morning, however, her back pain was worse. The worker indicated that she went to her chiropractor before her next shift and was given a note for her employer requesting lighter work. This was the first time that her employer was made aware of an injury. The worker advised the adjudicator that she was claiming for medical costs and time missed for medical appointments.
On September 9, 2003, the WCB received a letter from the worker which outlined her job duties/work history with her employer.
The employer provided the WCB with a list outlining the dates that the worker worked between December 2002 and January 2003 along with copies of medical certificates and Modified Return to Work Program forms dated March 20 and 30, 2003.
A Chiropractor's First Report indicated that the worker was treated on January 13, 2003 with the following description of accident: "While bending over/lifting, felt sharp lower back pain which progressively worsened over new few days - reported to her manager - told to do lighter work."
A CT scan dated July 23, 2003 revealed "L5-S1 central and left paracentral disc protrusion".
On October 15, 2003, the treating chiropractor provided the WCB with a letter outlining the dates that he treated the worker since January 1992 onward along with associated examination findings.
Primary adjudication referred the case to a WCB medical advisor to provide an opinion with respect to a diagnosis and to comment on what anatomical movements/activities were likely to result in the diagnosis. In a response dated November 5, 2003, the medical advisor concluded that the mechanism of injury would more likely cause a strain rather than a disc herniation. The medical advisor also expressed the following concerns:
- "Claimant indicated (in correspondence Sept. 2.03 memo) that she had not had previous back problems yet her chiropractor clearly indicates otherwise.
- Injury originally listed as occurring in Mar. 03 then changed to Jan. 03, but not reported to Aug. 03.
- [Treating chiropractor's] report based on Jan. 03 exam says L5 disc herniation (in hindsight). From his initial assessment he dx'd [diagnosed] L5 subluxation. I would imagine the change was from review of CT.
- Dr. [treating physician] provides dx [diagnosis] of mechanical LBP [lower back pain]. No evidence for disc lesion."
On September 9, 2004, a worker advisor asked the WCB to consider a report from the treating physician dated August 18, 2004 which supported the worker's contention that her difficulties had been caused by a workplace accident. On October 21, 2004, primary adjudication determined that the new information did not alter its previous decision. On November 17, 2004, the worker advisor appealed the decision to Review Office.
On January 14, 2005, Review Office confirmed that the claim was not acceptable. Review Office was unable to establish that the worker's lower back problems were attributable to an accident arising out of and in the course of her employment. In February 2005, the worker advisor appealed Review Office's decision and an oral hearing was convened on April 21, 2005 and was later reconvened on June 9, 2005.
Reasons
Subsection 4(1) of 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 subsection 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes
(a) A wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
From the very outset, the worker associated her traumatic incident as having occurred on or about the time that she attended on her chiropractor. On page seven (7) of her accident report, the worker states, “Dr. [name] was seen first, and again we think this was March.” The evidence, however, confirms that the worker did in fact seek treatment from her chiropractor on January 13, 2003. Subsequent to this date, the chiropractor issued a disability certificate dated January 28, 2003 and advised as follows: “No repetitive coin tray lifts until completely recovered.”
We have carefully reviewed the worker’s employment duties, many of which require 45° bending at the waist while holding a 22 pound tray of coins. We find that this forward flexion with weight would, in all likelihood, be sufficient to cause a disc protrusion in what may best be described as an already weak back. In this regard, we attached considerable weight on the treating physician’s comments, which are contained in his August 18, 2004 report.
“Usually a healthy disc does not spontaneously herniate. Over time, repetitive use, bending, lifting, and twisting can lead to trauma and certainly even the simplest of events after that time can bring about rupture of the annulus fibrosis and disc protrusion. I think it is a distinct possibility her occupation is related to her injury given this patient’s work and the loads with which she had to work coupled with the positions and activities that she had to place her body in while lifting and carrying these trays of heavy coins.”
Based on the weight of evidence we find that the worker did, on a balance of probabilities, sustain an accident as defined by the Act either on or just prior to January 11, 2003. We further find that the employer became aware of the worker’s back difficulties at this time, although they may not have known that her condition was necessarily work related. The necessity for the worker to have reported her incident may have been minimized by virtue of the employer’s very liberal and well organized alternate work programs for both work related and non-work related medical conditions. We note that the worker has to date not missed any time from work as a consequence of her accident.
The worker’s claim is acceptable and accordingly her appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of July, 2005