The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 30, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 30, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On April 21, 1999, the claimant submitted an application for compensation benefits indicating that she incurred a herniated disc at the L5-S1 level. The claimant was employed as an x-ray technician and her last working day was August 6, 1999.

In a letter attached with the compensation application, the claimant indicated that she first noticed pain in her left buttock on November 19, 1998, while sitting at work for an extended period of time. The claimant said the pain was so minor that she wrote it off as a sore muscle and thought it would go away with time. There was no reason to fill out an incident card. The claimant said that she told a co-worker about the pain that she was experiencing. Over the next few months the pain became progressively worse and following a CT scan it was learned that she had injured a disc at L5-S1.

On May 31, 1999, a Workers Compensation Board (WCB) field representative obtained a sworn statement from the claimant. The claimant stated she had no history of back problems before the shift of November 19, 1998. The claimant outlined the duties she performed as an x-ray technician which included lifting patients from stretchers to the x-ray table and back again. The physical requirements of the job were pushing/pulling, lifting, reaching, or rolling patients onto their sides or holding them up in a sitting position. Maneuvering stretchers, beds or the portable x-ray machine in and out of elevators, through doors and into rooms was also a requirement. The claimant indicated that there was an increase in the number of patients seen because of a local hospital closing down its emergency ward.

With respect to medical treatment, the claimant first saw a physician in January 1999 who felt her condition was due to a strained muscle and Tylenol was prescribed. There was no discussion as to the cause of her difficulties.

The WCB field representative spoke to several co-workers on May 31, 1999. One co-worker confirmed that the claimant complained of buttock pain on a given shift but could not recall the claimant ever saying what the cause was from. The co-worker did not doubt that the claimant’s pain was caused from work as there was a lot of physical exertion when working with patients. Another co-worker said she was aware of the claimant’s symptoms between December 1998 and April 1999. The claimant’s supervisor confirmed the physical nature of the job as described by the claimant. He said that he wasn’t certain as to when the number of patients picked up with the ongoing shut down of the hospital emergency. He said there was no sudden change in November 1998 but that the number of x-rays taken had gone up around 6,000 per year. He said that he was first aware of the claimant’s symptoms around February 1999, but was unaware of this being related to work until April 14, 1999.

Medical reports on file show that the claimant underwent a CT scan on April 2, 1999. The impression was moderate disc herniation at L5-S1. In a letter dated May 11, 1999, the attending physician stated that she saw the claimant regarding left buttock pain on January 28, 1999, March 4, 1999, April 14, 1999 and April 26, 1999.

On June 4, 1999, the claimant was notified by Rehabilitation & Compensation Services that her claim was denied as a relationship had not been established between her injuries and an accident as defined in section 1(1) of the Workers Compensation Act (the Act).

Subsequent to the above decision, the claimant asked the WCB adjudicator to review correspondence from an orthopaedic specialist dated August 18, 1999 and to reconsider his decision to deny the claim. On September 20, 1999, the adjudicator wrote to the claimant indicating there was no information contained in the orthopaedic specialist’s report that would constitute a material change in the facts surrounding the claim. The adjudicator confirmed that the claim was denied as it did not meet the definition of an accident as defined in the Act. On October 12, 1999, a worker advisor appealed the decision to Review Office.

Prior to considering the appeal, Review Office obtained information from a chiropractor dated December 15, 1999. The claimant also provided literature regarding disc conditions and various statistics compiled in the United States regarding back pain by work event and the incidence of back pain by occupation.

In a decision dated January 7, 2000, Review Office determined that the claim for compensation was not acceptable as it did not meet the requirements of sections 4(1) and 1(1) of the Act. Review Office noted that the claimant’s first back pain was apparently noticed either while the worker was sitting at work on November 19, 1998, or developed insidiously as the chiropractor stated or it developed spontaneously as the orthopedist had indicated in his report. Review Office did not question that the claimant performed a lot of bending, twisting and lifting in her job, however, it had not been established that these work activities caused her diagnosed condition. Further, Review Office stated it did not doubt that the nature of the claimant’s employment would cause her to suffer back discomfort, however, this did not mean that the worker had sustained an accident in the workplace within the meaning of that term in the Act. In February 1999, a worker advisor appealed Review Office’s decision and requested an oral hearing.

Reasons

These findings are confirmed in subsequent medical examinations of the claimant including a CT scan performed April 2, 1999 which revealed a moderate sized central and left paracentral prolapsed disc at L5-S1 which was compressing the S1 nerve root, with no evidence of any pre-existing condition. We note that the claimant is young, is otherwise in good health and has had no prior treatment for her back

We find after a detailed review of the claimant’s job duties and her workplace activities on March 8, 1999 that the prolapsed disc condition arose, on a balance of probabilities, out of her work activities on that day.

Although the evidence may suggest that the claimant’s disc condition pre-dated March 8, 1999 in that she appeared to have some minor symptoms prior to that date, we find that the events of that day were sufficient to enhance the claimant’s medical condition as revealed subsequently by CT scan shortly thereafter and to account for the sudden increase in symptoms. Accordingly we find that there was an accident as provided by the Act and the claimant’s appeal is allowed.

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 5th day of April, 2000