Decision #131/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 21, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On June 1, 2004, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred on May 21, 2004 after performing a pivot transfer. The worker indicated that the accident employer was an "on-call agency" and that she worked for them twice per month. She has a permanent position at a local hospital. The worker indicated that the reason for the delay in seeing a doctor was because she was out of town from May 21 to May 24 and there was no doctor available. The first available appointment was May 26, 2004. At the time of filing her application for compensation, the worker indicated that she had not yet informed her employer of an accident.In June and July 2004, WCB staff representatives contacted the worker and the accident employer to gather additional information concerning the mechanics of the injury, the reasons for the delay in seeking medical attention and reporting of an accident.
On July 14, 2004, Rehabilitation and Compensation Services advised the worker that her claim for compensation had been denied as it was unable to establish that an injury occurred at work. The reasons for the decision were outlined as follows: the worker did not report experiencing any symptoms at work; the worker felt stiff later in the evening and sharp pains were noted the following morning; she did not notice anything different in her back until the next day; there were no witnesses to the accident; the accident was not reported to the employer until June 2, 2004.
In a further letter dated July 20, 2004, Rehabilitation and Compensation Services informed the worker that her treating chiropractor expressed concerns that her recent back symptoms may be related to prior workplace injuries. After having the worker's prior WCB back claims reviewed by a WCB chiropractic consultant, it was determined that these accidents were soft tissue in origin which required limited treatment. It was therefore concluded that the worker's present difficulties were unrelated to her prior workplace injuries.
On October 13, 2004, a worker advisor, acting on the worker's behalf, appealed the WCB's decision of July 14, 2004. The worker advisor contended that the file evidence clearly established that the worker sustained a back injury while doing a transfer on May 21, 2004 and that she took the necessary medical care for her injury in a proactive manner. The worker advisor believed that the worker reported the incident within the requirements of subsection 17(1) of The Workers Compensation Act (the Act) and that the treating chiropractor also confirmed that she reported a work related incident to him.
On October 22, 2004, Review Office confirmed that the claim was not acceptable as there was insufficient evidence to conclude that the worker sustained an injury at work on May 21, 2004. In April 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
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 subsection, 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 wilful 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
As the background notes indicate, the worker developed lower back pain and stiffness subsequent to her performing a pivot transfer. The worker stated in her accident report as follows: "I was doing a one patient transfer helping her from the toilet back into her chair. I didn't feel anything at the time. My back was stiff later in the evening and the next morning I had pain in my back like someone was poking a finger in my ribs. This was the only transfer I did on this day…". We find that the mechanism of injury is consistent with the injury sustained and reported by the worker. In addition, she sought medical attention at her first possible opportunity i.e., after her return to the city following a long weekend she made an appointment with her family physician. The worker's back difficulties were similar in description of injury and onset of symptoms as such was described in prior back claims.
We further find that the worker took every possible step in reporting her injury in a timely fashion. Her evidence at the hearing was that she reported the injury to the accident employer via letter on June 2, 2004 and followed it up via an e-mail on the advice of a WCB staff person. In any event, the worker's notification was well within the time limit (30 days) prescribed under the Act.
After having considered all of the evidence, we find that the worker did, on a balance of probabilities, sustain an accident arising out of and in the course of her employment which resulted in injury on May 21, 2004. The worker's claim is therefore 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 10th day of August, 2005