Decision #16/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on December 2, 2004, at the worker's request.

Issue

Whether or not responsibility should be accepted for the worker's back condition, including medical treatment and/or wage loss benefits in relation to the May 26, 2004 compensable injury.

Decision

That responsibility should be accepted for the worker's back condition, including medical treatment and/or wage loss benefits from May 26, 2004 up to and including June 16, 2004 in relation to the May 26, 2004 compensable injury.

Decision: Unanimous

Background

On May 26, 2004, the worker was attempting to fit a door into the frame of a box car using a wooden plank. When the plank accidentally broke, the momentum carried the worker forward and he fell to the ground onto his left hand. The worker reported an injury to his left little finger on his report of accident.

During a May 31, 2004 telephone conversation with a Workers Compensation Board (WCB) adjudicator, the worker reported that in addition to his finger injury, his back began to bother him on May 28, 2004 and progressively became worse. The adjudicator advised the worker that it was doubtful that she could relate his symptoms over the past weekend to the fall at work on May 26, 2004 as he did not experience any symptoms whatsoever until May 28, 2004.

Medical information consisted of the following reports:
  • " X-rays of the left hand dated May 27, 2004 revealed a comminuted intra-articular fracture involving the proximal phalanx of the 5th digit.
  • " Hospital emergency report dated May 27, 2004 showed that the worker was treated for pain at the 5th MCP [metacarpophalangeal] joint.
  • " Chiropractor's First Report indicated that the worker was seen on June 1, 2004 for a back injury related to the May 26, 2004 fall at work. The diagnosis rendered was an L5 strain/subluxation.
  • " June 1, 2004 - the family physician diagnosed the worker with a fractured finger and a paravertebral muscle strain to his left lower back. On June 16, 2004, the physician noted that the worker's left paravertebral strain (L5-S1 level) had resolved.
  • " Chiropractor's Progress Report dated June 24, 2004, indicated that the worker's low back pain was now gone. The chiropractor further stated, "the lower back episode is a function, undoubtedly, of the sudden fall which fractured his little finger and typically would manifest itself 24-48 hours after fall."
On June 4, 2004, the worker was advised that the WCB was accepting responsibility for his left finger injury but was not accepting responsibility for medical treatment or time loss in relation to his back symptoms. The WCB's position was that the worker should have felt back symptoms at the time of his accident on May 26, 2004 had he sustained an injury to his back. As the worker felt no symptoms at all until May 28, 2004, the WCB could not establish that these symptoms were related to the incident at work on May 26, 2004.

On June 23, 2004, the worker appealed the WCB's decision to deny responsibility for his back injury along with chiropractic treatment. The worker commented that he was told by his treating physician and chiropractor that it was entirely possible for his back injury to have occurred and that his symptoms could be delayed 48 hours.

On September 29, 2004, Review Office determined that no responsibility could be accepted for the worker's back condition including any medical treatment or wage loss associated with the back injury. Review Office was of the opinion that the worker would have felt some type of symptomatology sooner than the 48 plus hours he claimed to have been symptom free before feeling some type of back discomfort. The worker did not establish that his back injury had arisen out of the accident of May 26, 2004 according to Review Office. On October 11, 2004, the worker appealed Review Office's decision and a non-oral file review was arranged.

Reasons

It is well established practice that issues arising under The Workers Compensation Act of Manitoba (the Act) are determined in accordance with the ordinary standard of proof employed in civil litigation (on a balance of probabilities). In applying this standard, we find, on a balance of probabilities, that the worker did indeed experience back difficulties as a consequence of his compensable injury. This determination is substantiated by both the treating chiropractor and the treating physician in their first reports dated June 1, 2004.

Notwithstanding the foregoing, we further find that the worker recovered from his back injury by June 16, 2004 as evidenced by his treating physician's progress report of June 16, 2004 and his treating chiropractor's progress report of June 24, 2004.

In conclusion, the WCB should accept responsibility for the worker's back condition including medical treatment and/or wage loss benefits to which the worker is entitled from May 26, 2004 up to and including June 16, 2004. Accordingly, the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of January, 2004

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