Public Decisions | The Appeal Commission

Decision #41/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on January 29, 1999, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

On May 29, 1998, the claimant filed an application for compensation benefits relating to a back injury which occurred on January 30, 1998, during the course of her employment as a nursing homecare giver. In a letter attached to the application form, the claimant stated that she slipped and fell on snow and ice landing on her buttocks while leaving an apartment building. The claimant indicated that she brushed herself off and went to her car. Her back and hip were sore but she thought it would go away and she continued to travel to and attend to her next client. By May 8, 1998, the pain in her back and leg was so bad that she sought medical attention.

The employer's report of injury, dated June 12, 1998, indicated that the claimant reported on May 11, 1998, that she was having back problems and was unable to work. The claimant said she had slipped and fallen on ice in February after leaving a client's home and did not think it was anything to worry about. The employer noted that the claimant was off work in February due to bronchitis and pneumonia.

File documentation contains a memo, dated June 11, 1998, by a Workers Compensation Board (WCB) adjudicator who spoke to the claimant by phone. Briefly, the claimant stated that she continued to work following the date of accident but her back kept getting sorer and sorer until she finally booked off work on May 8, 1998. The claimant confirmed that she was off work between February 1st and February 16, 1998, due to bronchitis and pneumonia. The claimant indicated she telephoned the office on the day in question, January 30, 1998, and told her supervisor about having a "spill" that day and that she would shake it off.

On June 12, 1998, a WCB adjudicator contacted the employer. The employer advised that the claimant had told her that she had slipped but the employer did not remember when the claimant told her this. The employer further stated that the claimant felt pain from pneumonia but after the pneumonia went away her back still hurt and therefore the claimant felt the pain was now due to the fall. The employer confirmed that the claimant would talk her about back pains every so often in casual conversation.

A Doctor's First Report, dated May 12, 1998, reported the worker's history of injury as slipping on ice at work and continuing to work until the pain became unbearable. The diagnosis was questionable disc at L5-S1. A referral was next made to an orthopaedic specialist. On June 25, 1998, a CT scan revealed L5-S1 disc degeneration and a large posterior disc herniation compressing both the right L5 and S1 nerve roots.

In a decision, dated July 3, 1998, Claims Services determined that the claim was not acceptable due to the claimant's delay in reporting the incident and in seeking medical attention. The claimant appealed this decision and presented a written letter from a client. The client confirmed that the claimant did phone her office from the client's home on January 30, 1998, and that she heard the claimant saying that she had fallen on ice while leaving a patient's home.

Prior to the Review Office's considering the appeal, a signed statement was obtained from the claimant, dated August 12, 1998. The claimant described the fall that occurred on January 30, 1998. She stated that she landed on her buttocks and that she smashed her right elbow at the same time. While walking to her car the buttocks and lower back felt tight and sore and she was never symptom free after that. When she saw a doctor on February 2, 1998, she told the doctor that she was having trouble breathing. She did not mention her other symptoms as they did not seem bad at the time and she did not mention the fall at work. During her bout with pneumonia and bronchitis, the claimant stated that her back seemed to get worse with all the coughing.

Following recovery from the pneumonia, the claimant stated that she returned to work after February 16, 1998, and that her back seemed to get worse and worse as time went on. There had been no lifting of patients, only preparation of meals, and house cleaning. One or two weeks prior to her seeing her doctor on April 20, 1998, the claimant indicated that she started to get sciatica down the right leg. When she saw her doctor on April 20, 1998, she wasn't certain what was the cause and she did not make the connection with work.

In a letter to the claimant, dated September 8, 1998, the Review Office determined the claim for compensation was not acceptable. When rendering this decision, the Review Office stated that there was an incident at work on January 30, 1998, however, the claimant did not seek treatment specifically for her back or mention the fall to her doctors until late April 1998. "This delay in seeking treatment, your back having been aggravated by the intervening lung condition, your having worked for months without significant trouble and the degenerative disc finding, leave me unable to substantiate an injury at work and unable to relate your current trouble to the incident."

The claimant's solicitor appealed the Review Office's decision and a written submission was forwarded to the Appeal Commission, dated January 5, 1999. On January 29, 1999, a non-oral file review was conducted.

Reasons

Section 4(1) of The Workers Compensation Act (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 accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "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."

As the background notes indicate, the claimant slipped on an ice patch and landed on her buttocks on January 30th, 1998. The claimant asserted that she had informed her supervisor of this event later the same day. In a conversation with a WCB adjudicator, the supervisor acknowledged that she had been advised by the claimant of the slip and fall but could not remember the specific date.

The claimant's alleged incident is further corroborated by an independent witness who provided a written letter to the WCB, dated July 12th, 1998. The witness stated that she had seen the claimant on January 30th, 1998, and that the claimant had told her of the fall. The witness also confirmed that she had overheard the claimant advise the employer's office of the incident. It was the claimant's regular practice to telephone her office from the witness's residence to find out what her working schedule was for the following week.

The medical evidence revealed that the claimant had sustained a large right L5/S1 disc protrusion with severe compression of the right S1 nerve root. This resulted in the claimant's undergoing decompression surgery on September 8th, 1998. In the opinion of the surgeon, the claimant's condition was compatible with the mechanism of injury. "The patient could well have sustained the disc protrusion as a result of the injury at work."

We accept the claimant's evidence that she did not seek immediate medical attention for her back because she thought the pain would eventually go away. The claimant was able to keep on working until such time as the pain in her back and leg became so severe that she was no longer capable of performing her job duties.

After considering all of the evidence, we find that the claimant did, on a balance of probabilities, sustain a work related injury on January 30th, 1998. Therefore, the claim is acceptable and the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of March, 1999

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