Decision #105/07 - Type: Workers Compensation
Preamble
This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 878/2005 holding that his claim for compensation is not acceptable.
On October 29, 2004, the worker filed a claim with the Workers Compensation Board (“WCB”) for left pelvis and low back pain that occurred at work on October 7, 2004. Following review of medical information and contact with the employer who disputed knowledge of a workplace accident, the WCB denied the claim for compensation as it was unable to establish that an accident as defined in subsection 1(1) of The Workers Compensation Act (“the Act”) arose out of and in the course of the worker’s employment. The worker appealed the decision to Review Office. Review Office decided that the weight of evidence, on a balance of probabilities, did not support a relationship between the worker’s back problems and his work duties. With the assistance of legal counsel, the worker appealed to the Appeal Commission and a hearing was held on March 20, 2007. The worker appeared and provided evidence. He was assisted by legal counsel. The employer did not attend the hearing.
Following the hearing, the appeal panel sought and obtained additional medical information which was provided to the interested parties for comment. On June 21, 2007, the panel met to render its final decision.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
Reasons
Background
In September 2004 the worker began work as a recycler/sorter. This job required the worker to bend, lift and twist as he lifted and emptied recycling boxes.
Over the course of his duties, the worker began to notice discomfort in his low back which became increasingly symptomatic. He thought it was just his muscles and that the discomfort would subside. He tried stretching at work to no avail. Then on October 7, 2004 he went off work because of a non-compensable injury. His low back symptoms continued to progress while off work and he sought medical treatment at a walk-in clinic on October 13, 2004. The walk-in clinic doctor noted that the worker had hurt his back at work and was feeling sharp pain in his back and could not sit and had trouble walking. He was diagnosed with a back strain and provided an anti-inflammatory.
From that time forward the worker continued to seek a variety of medical treatments. He saw his family doctor on October 18, 2004 complaining of low back pain that he thought might have been caused by work and was referred for a course of physiotherapy. He then attended a chiropractor who diagnosed an acute lumbosacral joint sprain and bilateral lumbosacral neuritis. He then saw another doctor who suggested a course of physiotherapy.
He was then referred to an orthopaedic surgeon in September 2005. His September 12, 2005 medical report notes that the worker gave a history of injuring his back at work when lifting a heavy box. The worker noted that when lifting the heavy box or bin he was forward flexed and was leaning a little to the left. He then had pain in his back that went into his buttock. The orthopaedic surgeon noted that clinically, the worker had evidence of probable left L4-5 disc protrusion with involvement of the left L5 nerve root and an MRI and x-ray were ordered.
The MRI, dated October 20, 2005, revealed at the L3-4 level, posterior left lateral disc prominence, and at the L4-5, posterior left lateral disc protrusion with disc approaching the left L5 nerve root. The impression was of degenerative changes involving the lower lumbar spine most pronounced at the L4-5 level where the protruded disc approaches the left L5 nerve root. The x-ray taken on November 2, 2005 noted no significant disc space narrowing.
After reviewing these test results, the orthopaedic surgeon commented on May 8, 2006 that the worker did sustain a disc protrusion and that it was his impression that this was likely as a result of his activity at work.
Analysis
To accept the worker’s appeal we must find on a balance of probabilities that the worker suffered an accident within the meaning of subsections 4(1) and 1(1) of the Act. Based on the evidence before us we are able to make that finding.
The evidence before us is that the worker suffered increasing discomfort to his low back while engaged in his workplace duties and that he sought medical treatment for this discomfort. Although the worker did not notify his employer immediately of his low back discomfort, he still notified within the 30 day requirement set forth in subsection 17(1) of the Act.
Given the foregoing, we find that the worker did have a workplace accident within the meaning of the Act and that his claim is acceptable.
Accordingly his appeal is granted.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Martin - Presiding Officer
Signed at Winnipeg this 1st day of August, 2007