The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 14, 2006, at the request of a worker advisor, acting on behalf of the worker. The worker and his worker advisor appeared as did the employer's administrator and occupational therapist. At the conclusion of the hearing, the appeal panel decided that additional medical information was required from the worker's treating physicians. To that end, the Appeal Commission wrote to the worker's doctor and orthopaedic surgeon for a copy of the September 27, 2005 CT scan and the orthopaedic surgeon's reporting letter. A copy of these reports was provided to the Appeal Commission on February 21, 2006. The worker and employer were provided an opportunity to provide their respective comments on these reports, but declined to do so. It is against this backdrop that the appeal panel met on March 28, 2006, to discuss the case and render its decision.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

Reasons

Claim History
The worker filed an accident report with the Workers Compensation Board (hereafter the "WCB") on August 19, 2005. Upon investigation of the claim, the case manager denied it. This denial was upheld by the Review Office on November 25, 2005. It is this November 25, 2005 decision that the worker appeals.

Background
On July 9, 2005, the worker was working in the course of his employment as a health care aide, assisting a resident into bed. He grabbed the resident from behind then turned to his right to sit the resident on the bed. As the worker did this, the resident remained stationary while the worker continued to turn right. He felt a "knot" or "twinge" in his left back just above the belt area, one and one-half to two inches left of the spine.

The worker did not think much of the "knot" or "twinge" since he had had similar episodes in the past five years. On these occasions, the knot would last approximately one day and then would go away. This is what happened in this instance.

However, on or around July 12, 2005, several days after the July 9, 2005 incident, the worker was getting out of bed when he felt a sharp pain in his left hip, followed by pain into his left leg.

He continued working at his regular duties and went on vacation on July 28, 2005. By August 1, 2005 the pain in his left leg had become unbearable. On August 8, 2005 he saw a doctor who prescribed physiotherapy and pain medicine.

At first the worker did not relate his leg symptoms to a work-related incident. However, with time, he recalled the twinge in his back on July 9, 2005 and thought that this must be the cause of his leg symptoms.

To his physiotherapist, the onset of leg symptoms after the July 9, 2005 twinge in the back was a consistent presentation of a disc protrusion.

Subsequent investigations requested by the panel after the hearing on February 14, 2006 confirm the diagnosis of a disc protrusion.

Indeed, a September 27, 2005 CT scan of the lumbar spine and a February 10, 2006 reporting letter from an orthopaedic surgeon revealed a small posterolateral disc protrusion on the left at the L4 - L5, which was causing a foraminal impingement at the L5-S1.

Worker's Position
The worker submits that his claim is acceptable. The delayed onset of lower leg symptoms is consistent with the diagnosis of disc injury. Further, two of his co-workers confirm that he complained of a back injury at work in July, 2005. On the basis of these two factors, and in accordance with sections 1(1) and 4(5) of The Workers Compensation Act (hereafter the "Act") and WCB policy manual statement 44.05, he should receive benefits pursuant to section 4(1) of the Act.

Employer's Position
The employer denies that the worker's claim is acceptable. It points to the fact that the worker did not report a work-related injury within thirty days of its occurrence and that there is insufficient evidence to establish that his current symptoms arise from the July 9, 2005 incident at work.

Analysis
The Act provides that a worker must suffer personal injury by accident arising out of and in the course of employment to be eligible for compensation (s 4(1) of the Act). An accident is defined as a chance event occasioned by a physical or natural cause (s. 1(1) of the Act). (Former policy manual statement 44.05 also defined 'arising out of and in the course of employment' but has since been deleted.)

In the case before us then, the panel must find, on a balance of probabilities, that the worker's disc protrusion arose out of his employment, and more particularly, that it arose as a result of the July 9, 2005 lifting incident. We were not able to make this finding.

The worker says that the July 9, 2005 lifting incident did take place. He relies on statements from two co-workers as support for this assertion. The two statements, which we have not re-produced, confirm that the worker had some back and leg complaints in July, 2005 and that he had shared his thought that these complaints might be work-related.

The worker also asserts that the July 9, 2005 incident is the cause of his subsequent leg pain. He relies on his physiotherapist's August 22, 2005 report in support of this assertion, excerpts of which follow:

"I wanted to provide a little more explanation as to why it has taken a while for this claim to be submitted.

[The worker] initially reported to me that this was not a work injury as he could not relate the onset of symptoms to anything specific at work. It came out in therapy approx 1 week into his physio care that approx a day before his leg pain started, he felt something twinge in his back while transferring a heavy resident. Because he did not get the leg pain until later, he did not relate the two events.

It would appear that his symptoms are consistent with a disc protrusion, and because of the nature of the onset of his symptoms (delayed onset) is consistent with some disc injuries I have seen, I encouraged him to at least report it to his employer and submit a claim to you for your consideration…."

In weighing the evidence, we accept that the worker felt a twinge in his back on July 9, 2005 when attempting to transfer a resident to bed. He continued to work without difficulty until July 12, 2005. However, we do not accept that the July 9, 2005 incident is related to the left leg symptoms which started on or about July 12, 2005.

Indeed, it was the worker's evidence that he had experienced twinges or knots in his left lower back over the preceding five years. The twinge he felt on July 9, 2005 was similar in nature, location and duration to these previous episodes.

This episode is in contrast to the July 12, 2005 incident. On this occasion, the worker rolled out of bed and felt a sharp pain in his hip with pain radiating into his leg. At the hearing, the worker described this pain as follows:

"I never had the [previous] pain here. I didn't know it was my disc. The pain went from my buttock to behind my knee to from my knee down to my ankle. Then it went back to my buttock. It would never hurt my back. I didn't have back pain. It was my leg the whole time…"

On the basis of this evidence, we find that these leg symptoms and the disc protrusion did not arise out of or in the course of a workplace accident within the meaning of s. 1(1) and 4(1) of the Act. Given these findings, s. 4(5) of the Act does not apply.

For these reasons, we hold that the worker's claim is not acceptable.

As we have held that the claim is not acceptable, we did not deal with the notice provisions under section 17 of the Act.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2006