Decision #88/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 6, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on May 6, 1999.

Issue

Whether the claimant is entitled to payment of wage loss and medical aid benefits from February 1, 1998 to her return to work in May, 1998 in relation to the compensable accident sustained on January 20, 1998.

Decision

That the claimant is entitled to payment of wage loss and medical aid benefits from February 1, 1998 to her return to work in May, 1998, in relation to the compensable accident sustained on January 20, 1998.

Background

During the course of her employment as a sales representative on January 20, 1998, the claimant was waiting at a red light at an intersection when she was rear-ended by another vehicle. The claimant reported injuries to her neck, both arms and shoulders as well as severe headaches as a result of the incident. The claimant advised she did not report the accident to her employer until February 11, 1998, as she did not realize she had a whiplash injury and, in addition, was suffering from influenza at the time.

The claimant first sought medical attention at a local hospital on February 1, 1998, and was diagnosed with headache and a possible migraine.

The claimant later sought medical treatment from a general practitioner and a chiropractor on February 9, 1998. The diagnosis reported by the chiropractor was “Cervical, Thoracic Sprain/Strain due to Whiplash type phenomenon with Kinesiopathology, myopathology, histopathology and neuropathology.”

On April 23, 1998, Claims Services denied the claim based on Sections 4(1) and 17(5) of the Workers Compensation Act (the Act). Claims Services indicated that the evidence did not establish that an injury had occurred at work as the claimant delayed seeking medical attention until February 1, 1998, and did not report the accident to her employer until February 11, 1998.

With the assistance of a worker advisor, the claimant appealed the decision rendered by Claims Services on April 23, 1998. The worker advisor provided additional information from the attending chiropractor, dated June 9, 1998, and requested wage loss benefits for the period January 29, 1998, to May 4, 1998.

In a decision, dated July 27, 1998, the Review Office stated that it was not satisfied there was sufficient evidence to show the claimant’s neck problems in February 1998 had more likely than not resulted from her work related accident in January 1998. Review Office concluded the claimant was not entitled to benefits in compliance with Section 4(1) of the Act. The rationale for the decision was as follows:

  • submitted chiropractic reports suggested the claimant’s cervical findings were reasonably consistent with a whiplash mechanism of injury and that temporal proximity of symptom onset was not a good indicator of injury causation, i.e. that symptoms occasionally do not develop for up to three months post-accident. The Review Office also noted the comments made by the attending chiropractor that episodic neck and shoulder discomfort and soft tissue injury may be provoked by increased levels of activity or exertion and by ordinary activities of daily living.
  • the claimant did not develop neck symptoms for some time following the motor vehicle accident, otherwise it seemed unlikely to Review Office that she would have had a problem identifying the connection between the accident and symptoms. It seemed as well improbable that the claimant had experienced neck or shoulder pain prior to her hospital attendance, as this was not mentioned in her history or symptoms on February 1st.

Subsequent to the above decision, the claimant and worker advisor submitted additional information to the Review Office for its reconsideration. The information submitted included a letter from the employer, dated October 20, 1998, a report from the attending chiropractor, dated October 19, 1998, as well as literature regarding whiplash injuries from the internet. On December 18, 1998, the Review Office determined that the additional information provided no reason to change or alter its previous decision.

On February 1, 1999, the worker advisor asked the Review Office to clarify its previous decisions specifically with regard to whether the claim was acceptable and whether the claimant was entitled to benefits beyond February 1, 1998. The Review Office responded by letter, dated February 15, 1999. The Review Office stated that there was sufficient evidence to show that the claimant probably suffered an accident on January 20, 1998, and that the accident arose out of and in the course of her employment. With regard to the second issue dealing with entitlement to benefits, the Review Office found the weight of evidence failed to show that the accident at work on January 20th had reasonably caused the injuries which prompted healthcare treatment effective February 9th and/or led to loss of earning capacity after January 29th.

The worker advisor appealed the Review Office’s decision to the Appeal Commission and an oral hearing took place on May 6, 1999.

Reasons

The claimant was involved in a motor vehicle accident on January 20th, 1998, while in the course of her employment. This incident resulted in what was subsequently diagnosed as cervical/thoracic sprain/strain due to whiplash type phenomenon. As a consequence of this injury, the claimant sustained wage loss and medical aid costs for which we believe she should be reimbursed. We note that the employer attended the hearing and fully supported the claimant’s cause. Accordingly, we find that the claimant is entitled to the payment of wage loss and medical aid benefits from February 1, 1998 to her return to work in May 1998.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 8th day of June, 1999

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