The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (the “Act”) provides:

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.

The key issue to be determined by the panel deals with causation and whether the condition complained of by the worker was caused by an accident arising out of and in the course of employment.

The worker’s position:

In her Appeal of Claims Decision form, the worker submits she had a workplace injury on April 29, 2008, but that the symptoms did not show up until two days later. She did not engage in any other activities which would have led to back symptoms, although she had seen a chiropractor in the past. The chiropractic visits, however, were only for maintenance purposes and not for any specific back problem.

At the hearing, the worker testified that she works with small children in a nursery school setting. She had been working with a 4 or 5 year old child who was refusing to go to the gym. She was supporting the child in front of her by holding the child’s underarms, while at the same time guiding the child forwards. She did not feel anything unusual at the time, and was able to continue her duties for the rest of that day, as well as the next day. Outside of work, she did not engage in any physical activities such as gardening or sports which might have affected her back. Two days later, the symptoms arose. The worker woke up on May 1, 2008 and went to get out of her bed when she felt a sharp pain in her hip. This was the first sign of discomfort. When asked to identify the area of pain, the worker indicated the pain started in her upper right buttock and continued down her leg. She said that the pain was not in the central portion of her back. As a result of the discomfort, she went to her chiropractor for treatment. When asked about the nature of the treatment she received, the worker indicated that it has been several months since the injury and she could not recall the details. She did state that she had to attend the chiropractor more frequently for treatment, but that the actual type of treatment she received did not differ much from her usual maintenance appointments. The worker estimated that it took weeks before she felt better. She did not miss any time from work as a result of her injury, but she was seeking coverage for the additional chiropractic costs. At the present time, she has recovered from the effects of the injury.

Analysis:

In order for this appeal to be successful, the panel must be satisfied that an accident has occurred within the meaning of the Act and that the worker’s medical condition was caused by her work duties. On a balance of probabilities, we are not able to find that there was a causal connection between the development of her right hip, leg and low back pain and her employment.

In coming to our decision, the panel relies on the following:

• The temporal distance between the workplace incident with the child and the onset of her symptoms. The worker reported that she felt no ache, strain or twinge in her hip, leg or back during the balance of her shift on April 29, 2008. She was able to perform all of her duties on that day, and also on the next day, April 30, 2008. From the time of the incident in the morning on Tuesday, April 29th, until she woke up on Thursday, May 1, there were no indicators that the worker had suffered an injury. There was a complete lack of symptoms.
• The worker was able to perform all of her usual duties on April 29 and 30, 2008. Her job required the worker to be directly responsible for up to 10 pre-school aged children, and involved bending down, kneeling and sitting with them on the floor.
• The worker’s evidence at the hearing was that the first pain she felt was a sharp pain in her right hip. The emphasis by the worker was pain in her right hip and leg, as opposed to her back. In fact, the worker stated that the pain was not located in the central portion of her back, where the L5-S1 space is located.
• The report of the chiropractor dated July 7, 2008 diagnoses vertebral subluxation at L5/S1. In a subsequent letter dated September 29, 2008, the chiropractor further explains that: “The onset of her symptoms were delayed by 48 hours, commonly seen with this type of injury, as swelling set in and progressively became worse until the point at which she sought care.” This is contrary to the worker’s evidence which was that there were absolutely no symptoms until she awoke with sharp pain in her right hip. There was no progressive or gradual onset.
• The worker had been attending her chiropractor for regular maintenance appointments for several years. After the symptoms appeared on May 1, 2008, the worker’s evidence was that the type of treatment she received from her chiropractor did not change, but she was required to attend more frequently.
• Injury to the right hip does not seem to accord with the activity with the child which was fairly centralized and occurred directly in front of the worker.