Public Decisions | The Appeal Commission

Decision #29/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on November 20, 1998, following receipt of an appeal from a worker advisor, acting on behalf of the claimant. The Panel discussed this case on November 20, 1998, and once again on February 4, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On January 29, 1998, the claimant filed an application for compensation benefits in relation to a back injury which occurred on January 5, 1998, while transferring a patient from a wheelchair to the bed. The claimant stated that she did not report the injury to her employer until January 25, 1998, when she had to seek medical attention because she could no longer tolerate the pain. The injuries reported by the claimant were two fractured vertebraes in the upper back.

The employer's report of injury indicated that the claimant, on January 26, 1998, reported that she was experiencing back pain and when asked whether it was work related the answer was no. The claimant said she had been to the hospital for tests and would be seeing her doctor shortly. On January 29, 1998, the claimant came in and reported that her back injury was work related and explained that she had manually transferred a client on January 5, 1998.

Medical information confirms that the claimant was seen at a health care complex on January 25, 1998, with a sore neck, back and shoulders that had started about 2 weeks ago and got progressively worse. The claimant was described as a home care worker who did a lot of lifting. X-rays of the thoracic spine taken on January 25, 1998, revealed "slight osteoporotic compression deformity involving the body of T10 and degenerative spurring was noted at the T10-T11 disc space on the right."

The claimant was seen by her attending physician on January 29, 1998, with a diagnosis of thoracic/cervical myalgia. When seen by a chiropractor on February 19, 1998, he diagnosed acute cervicothoracic sprain/strain with associated brachial neuralgia and acute unilateral sacroiliac sprain/strain.

A WCB adjudicator spoke with the claimant on several occasions to discuss her claim. On March 11, 1998, the adjudicator documented that the claimant did not report the accident immediately as she thought she was going to get better. There were no witnesses and the claimant did not mention anything to her client as she did not want the client to worry. At the time of accident, the claimant stated that she felt a sharp pain in her upper back between the shoulder blades and did not report the accident but only discussed it with her husband how her back was sore. The claimant indicated that she continued to perform her regular duties with pain between January 5, 1998, to January 22, 1998.

On March 25, 1998, the claimant told a WCB adjudicator that prior to the date of accident she had some back pain on and off depending on what she was doing. The claimant stated that she went to the hospital on January 25th, had x-rays taken and applied for both workers compensation and Great West Life insurance. The claimant indicated that her employer told her to fill out both forms.

The case was reviewed by a WCB medical advisor on March 30, 1998. The medical advisor commented that the claimant had a pre-existing degenerative lower thoracic spine with an osteoporotic compression fracture at T10. The medical advisor indicated that in her opinion the claimant's job duties may have aggravated her pre-existing problems. The compression fracture at T10 was noted to be "minimal" and could have arisen from the event of January 5, 1998. The medical advisor concluded that even if this were the case, the claimant's symptoms should resolve within 4-6 weeks.

On March 31, 1998, the claimant once again spoke with a WCB adjudicator and stated that her chiropractor was treating her neck and upper back and did a few adjustments on her right hip and lower back. The claimant stated that these areas were also sore at the time of her accident but she did not mention this before as her upper back was causing the majority of her pain.

In a decision dated April 17, 1998, Claims Services determined that the claim was not acceptable and quoted Sections 4(1) and 17(5) of the Workers Compensation Act (the Act). It was the opinion of Claims Services that:

the evidence did not establish that an injury occurred at work;
the original area of injury reported by the claimant was her upper back, and since seeking medical attention, the claimant's treatment was directed towards her lower back and right hip.
the claimant did not report an injury to her employer until January 26, 1998, and did not report that it was work-related. It was not until January 29, 1998, that the claimant reported her back injury was work related.

On May 13, 1998, a worker advisor appealed the decision that the claim was not acceptable and stated in part, "....only the injury at her place of employment could account for her condition." The case was then forwarded to the Review Office for consideration.

In a letter dated July 10, 1998, the Review Office confirmed that the claim was not acceptable. The Review Office noted that the claimant did not consider her injury was serious and felt that she could work through it. However, according to Review Office, the situation was compounded when:

the claimant presented a two week history of back pain and discomfort when at the hospital on January 25, 1998;
the attending physician noted that the claimant did a lot of lifting but did not make reference to the claimed incident.
the claimant's symptoms were generalized and x-rays revealed a slight osteoporotic compression deformity and degenerative spurring. These symptoms and clinical findings were not consistent with an acute lifting injury;
the employer indicated that when the claimant reported her back trouble on January 29, 1998, the claimant advised that it was not work related and completed private insurance carrier forms.

On September 1, 1998, the claimant and worker advisor appealed the Review Office's decision of July 10, 1998, and requested a non-oral file review. A submission was also received from the employer dated November 4, 1998.

On November 20, 1998, a non-oral file review was held, after which the Appeal Panel requested additional information. Specifically, the Appeal Panel requested that the WCB's Claims Services branch obtain a sworn statement from the claimant concerning the incident of January 5, 1998. On January 20, 1999, all interested parties were forwarded a copy of the claimant's statement dated January 5, 1999, and were asked to submit rebuttal arguments. On February 4, 1999, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are 1(1) and 4(1). Subsection 1(1) defines accident and subsection 4(1) which 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.

In accordance with subsection1(1) the panel must initially be satisfied that there has been an accident with in the meaning of the Act.

Subsection 1(1) states:

Definitions

1(1) "accident" means a chance event occasioned by a physical or natural cause; and includes

(b) any

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured."

Subsection 4(1) states:

Compensation payable out of accident fund

4(1) "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."

We reviewed all the evidence on file and find that the weight of the evidence, on a balance of probabilities, does not support a finding that the claimant sustained a personal injury due to an accident arising out of and in the course of employment. In arriving at this conclusion we placed weight on the following evidence:

the employer's report of injury form, dated January 29, 1998, indicates that the claimant reported on January 29, 1998 high back pain following a specific incident on January 5, 1998 while transferring a patient;
The claimant did not work on January 25, 1998 and the employer indicates that the claimant gave no reason for her back pain on January 26, 1998 and that the first time a connection to work was reported was on January 29, 1998. The claimant appears to essentially substantiate this in her sworn statement of January 5, 1999;
the worker's report of injury dated January 29, 1998 describes an incident which apparently occurred on January 5, 1998 while lifting a patient from bed at which time the claimant states she felt pain from then, until she could tolerate it no longer, and went to hospital on January 25, 1998;
the worker's report of injury records the injury as two fractured vertebra in the upper back and that one was squished;
x-rays of the thoracic spine taken on January 25, 1998 give a history of complaints of pain in the neck, back and shoulders and indicate "no trauma." The x-rays reveal that there is a slight osteoporotic compression deformity involving the body of T10 and degenerative spurring is noted at the T10-11 disc space on the right;
outpatient progress notes of January 25, 1998, from a health complex, record a two-week history of pain and discomfort in the back which appears to be generalized with tenderness to percussion over the lower thoracic spine, a family history of osteoporosis is noted and also the need to exclude a possible compression fracture;
in a report dated January 29, 1998 an attending physician indicates that the claimant reported upper thoracic spine and neck pain and diagnoses thoracic and cervical myalgia;
in a report dated March 11, 1998 an attending chiropractor reports upper back pain and stiffness, lower neck pain and stiffness and right hip pain and diagnoses acute cervicothoracic sprain with associated brachial neuralgia and acute unilateral sacroiliac sprain/strain;
a WCB memorandum to file dated March 25, 1998 indicates that the claimant had some on and off back pain depending on what she was doing, prior to the date of the accident.

We find that the evidence does not establish that an accident arose out of and in the course of employment. The claimant gives a history of a specific acute incident occurring at work yet does not report or mention this to her employer immediately and does not seek medical attention until approximately three weeks following the incident. At her initial medical appointment the claimant gives a two week history of neck, back and shoulder symptoms but makes no reference to any specific incident only indicating that she does a lot of lifting. The claimant's initial area of injury is reported to be the upper back area, however, as medical treatment progressed the symptoms became more generalized and the claimant was also treated for lower back and hip difficulties. X-ray reveals a pre-existing osteoporotic compression deformity at T10 and degenerative spurring at T10-11. We find that the generalized symptoms noted and the subsequent clinical finding are inconsistent with an acute lifting injury as reported.

We also find that the incident reported as occurring on January 5, 1998, and the subsequent initial symptoms noted, are inconsistent with an aggravation of a pre-existing condition as the initial medical information indicates complaints of pain of the upper back, neck and shoulder yet the pre-existing degenerative osteoporotic disc condition is noted to involve T10 to T11 of the lower thoracic spine. As we have concluded that there was no accident within the meaning of the Act, the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of February, 1999

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