Decision #40/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) alleging that a work related accident occurred on November 1, 2007. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered an injury arising out of and in the course of her employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 5, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On February 27, 2008, the worker filed a claim with the WCB for a low back injury that occurred when she slipped and landed on a tarp. The worker indicated that the pain went up her back and into her shoulders. She said she tried to grab for some traction but could not do so because of ice and snow. In performing her job duties, she was pulling hoses off a fitting, and when she put her leg back to brace herself, she slipped and fell because there was no gravel. On a separate occasion, she had radiating pain into her buttocks and leg when she used her foot on the clutch. The worker indicated that she used November 1, 2007 as an accident date as she did not have a copy of her incident report. Her employer was notified of the injury on the date the reports were filed. The worker mentioned that she had fallen about three times in the months of November and December, 2007.
The Employer Injury report indicated that they had no incident report on file and that the worker was no longer employed as of December 21, 2007.
Further information was submitted by the employer’s office manager dated February 28, 2008. She indicated that the worker worked half a day on November 1 and was off work on vacation from November 2 to 12. She said the operations manager could not remember whether the worker said she hurt her back on November 1. He remembered that the worker often complained about a sore back. In the summer, she said her back hurt from pulling weeds in her garden. The worker admitted that she often had a sore back. The office manager provided the WCB with an incident report filed by the worker on December 17, 2007. In it, she stated that she took a step back to pull a hose off and due to sand in the tarp, she fell on her back and right shoulder. A Record of Employment was also submitted dated December 27, 2007. Under the “Comments” section, it was written that “the prolonged physical demands of this job became too much for [the worker]. This was contributing to a lack of concentration on the job, which became a safety issue. A mutual decision was reached that [the worker] was no longer capable of working at [employer].”
On February 28, 2008, the worker advised a WCB adjudicator that she was claiming for chiropractic treatment and wage loss benefits. The worker said she had sciatica or a pinched nerve. Her employer let her go due to her injuries. The worker said she completed a couple of internal incident reports and one time her employer had none so she filled out the injury on a blank piece of paper and that the office manager should have these in her files.
On March 12, 2008, the worker advised her adjudicator that there were two incidents that she reported but was not sure of the exact dates. One was in November when she pulled a steam hose and the other time was when she fell on a berm.
Initial medical information consisted of x-ray results pertaining to the worker’s lumbar spine dated October 2, 2002, November 25, 2005 and February 21, 2008. The February 21, 2008 x-ray revealed “quite severe degenerative narrowing of the L5/S1 disc and this narrowing has progressed since the old film of October 3 (sic), 2002. The other discs are well maintained in width. No destructive bone lesion is seen. The visualized portions of the sacroiliac joints appear normal.”
A doctor’s progress report dated March 11, 2008 indicated an accident date of July 2007. The worker’s entrance complaints were low back pain, unable to bend or walk comfortably. The diagnosis was “Injury of muscles and ligaments of the lower back”. On April 24, 2008, the WCB adjudicator spoke with the treating physician’s nurse. It was indicated that the worker was treated for back muscle spasms in 2006. The worker had been treated since then but no mention of back complaints were made until the visit in March 2008. The worker had not been back since the last visit.
On April 10, 2008, the WCB adjudicator contacted the worker’s treating chiropractor. He indicated that the worker was first treated on November 22, 2008. He could not recall the worker mentioning or reporting any new injuries but she did work on rigs and lots of twisting was involved. He had been treating the same area in the low back and it had not yet resolved.
In a decision dated April 24, 2008, the worker was advised that the WCB was unable to establish that a work place injury occurred that required treatment on November 22, 2007. The adjudicator noted that the worker had a workplace incident on December 17, 2007, however medical information did not support that the worker suffered a personal injury due to the incident.
A physiotherapist assessed the worker on April 30, 2008. Subjective complaints were low back pain, worse in the morning, aggravated with lifting, steps and left leg pain. The diagnosis rendered was myofascial back pain due to muscle spasm.
On July 23, 2008, a worker advisor asked that the WCB reconsider the adjudicative decision of April 24, 2008. The worker advisor noted that the worker felt low back and rib cage pain on November 28, 2007 when she pulled on a steam hose to free it from a snow drift while steaming valves. When she returned to the truck and put her foot on the clutch, the worker felt severe pain down her left low back, hip, thigh and into her leg. The worker stated that this pain “was different than previous muscle pain she had felt”. A co-worker was aware of the worker’s injury. The worker said she filed a report regarding the November 28, 2007 incident and handed it in with her invoice paperwork that day. The other incident occurred on December 17, 2007 when the worker slipped and landed on a tarp “…I had to pull the hose off the fitting and when I put my leg back to brace myself, I slipped and fell because there was no gravel.”
Included with the submission was a letter from the treating chiropractor dated July 17, 2008. The worker advisor contended that the July 17, 2008 chiropractic report supported the mechanism of injury on November 28, 2007 and provided support of a presumption that an injury arose during the course of employment on November 28, 2007.
On September 5, 2008, the adjudicator spoke with the co-worker identified by the worker. He remembered working with the worker on a snowy day but he was unsure of the date. He said it was probably December 28. He recalled that the worker was going to pull a hose and turn at the same time. Not much was said and he was supposed to work with the worker the following day. She did not come in and her boss told him that she had hurt her back.
On September 18, 2008, the worker was advised that the WCB was unable to accept responsibility for her claim. The adjudicator considered the information obtained from the worker advisor, the employer, the co-worker and the information submitted by the worker’s treating chiropractor. He noted that the information received from the employer indicated they had no incident report for an injury on November 1, 2007 or November 28, 2007. He noted that the information on file supports a workplace incident on December 17, 2007, however the medical information did not support that the worker suffered a personal injury due to this incident.
On September 18, 2008, the worker advisor wrote to Review Office appealing the decision of September 18, 2008. The worker maintained her position that she sustained a work injury to her low back on November 28, 2007 when she pulled on a steam hose that was stuck; and that she exacerbated this injury and injured her right shoulder at work December 17, 2007 when she slipped on a tarp and fell on her back. The worker advisor made reference to a February 27, 2008 report from the treating chiropractor in which he stated:
“Diagnosis: Lumbalgia 2. Sciatica
Nov. 1st pulling hose while standing on wet plastic tarp and twisted. 2) pulling heavy hose in snow”.
On September 23, 2008, the worker spoke with Review Office to clarify some dates on her claim. The worker indicated that her co-worker gave the wrong date. She said the injury could not have happened on December 28, 2007 as she was no longer working then. The date should be November 28, 2007. Her chiropractor confirmed she attended him late in the afternoon on November 28, 2007 and again on November 29, 2007.
On October 21, 2008, Review Office determined that the worker’s claim for compensation was not acceptable. Review Office found that the discrepancies in the accident date, the not reporting of the November 2007 injury to the employer or chiropractor and the worker not seeking treatment following the December 17, 2007 incident, were factors in making its determination that an accident as defined in subsection 1(1) of the Act had not been established.
The case was considered again by Review Office on December 1, 2008 following receipt of additional information that was submitted by the worker. This included time sheets and clinical notes from her chiropractor. The worker submitted that her back injury occurred November 27, 2007 and that she saw the chiropractor on November 28, 2007 as his office was closed on the 27th. The worker referred to the chiropractor’s records which indicated she was treated for sciatica and leg pain. The worker indicated that she pulled on the hose on November 27, 2007 and it was the first time she had pain going down her leg.
Review Office reviewed the file documentation and confirmed that the claim was not acceptable. Review Office confirmed that the worker worked on November 27, 2007 and saw her chiropractor on November 28, 2007 but was of the opinion that this was not sufficient evidence to accept the claim. It relied on the employer’s evidence that the worker did not report the November 27, 2007 incident, the co-worker not being able to recall the worker injuring her back from the incident where she was pulling on a hose, and the chiropractor’s initial evidence that a workplace injury was not reported to him and that the worker’s back condition was not disabling. Review Office noted that the worker continued working and that she slipped on a tarp on December 17, 2007. There was no evidence to show that the worker sustained an injury from this incident as she did not seek medical treatment until January 2008.
On December 4, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
In January 2009 and February 2009, the worker advisor submitted to the Appeal Commission a number of medical reports and other information for the panel’s consideration.
Reasons
Applicable legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of 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 issue to be determined by the panel deals with causation and whether the worker’s low back pain was caused by an accident arising out of and in the course of employment.
The worker’s position:
The worker was assisted in her appeal by a worker advisor. It was submitted that the worker has described two events that arose out of the course of her employment on November 27, 2007 and December 17, 2007. As a result of these events, the worker was injured and therefore her claim should be accepted. The description of the worker’s symptoms and the mechanism of injury was consistent with the development of sciatica, especially if there was a pre-existing back condition. It was submitted that the worker’s testimony at the hearing provided more information as to what occurred and that the evidence as a whole supported acceptance of the claim.
Analysis:
In order for this appeal to be successful, the panel must find that the worker’s medical condition arose out of and in the course of her employment. On the basis of the evidence before us, we are able to find that the worker did suffer an acute injury at work on November 27, 2007, which caused her to experience a sciatic episode.
At the hearing, the worker described an incident at work in late November 2007 when she reached behind her with her left hand and pulled on a hose in an effort to move the hose forward. Unbeknownst to her, the hose had become frozen in the snow and was stuck. Therefore, when she yanked on the hose, it did not move, and she felt pain shoot up the left side of her body. Following the incident, she continued to feel pain in her left side and down her left leg. While she could still function, it hurt to put any weight on her left leg. There was no one available to replace her, so she continued to complete her shift, despite the pain. Another subcontractor (K.B.) was working the same area as the worker and he was able to assist her with her duties for the rest of the day. Another co-worker appeared near the end of the day, but by that time, most of the work had been completed.
Initially, there was some confusion on the WCB file as to what happened and when the incident occurred. When the worker first reported her claim to the WCB in February, 2008, she could not recall the date when she suffered the accident, and could only indicate that it occurred in November. In addition, the worker initially only reported an incident when she slipped on a tarp and injured her back. The worker later clarified that the slip incident occurred on December 17, 2007, and the November 2007 accident was when she pulled on the frozen hose.
After the WCB obtained the worker’s handwritten timesheets from the employer, the worker was able to reconstruct the events and identify November 27, 2007 as the accident date. The panel notes that the timesheets confirm that on November 27 the worker was assigned to the steam truck and that on November 28 and 29 she was off work due to her back.
The WCB adjudicator spoke with a separate subcontractor K.B. (who was originally and incorrectly described as a “co-worker”), who confirmed that he recalled working with the worker, but he could not specifically recall the date. He believed it was near the end of December, but the panel finds that this could not be correct since the worker’s employment ended prior to that date. The panel does not view the inability to recall the exact date as being of consequence. K.B. was able to confirm that he recalled seeing the worker trying to pull the hose and turn at the same time. While the worker did not say anything to K.B. about being injured at the time, he said that she was supposed to work with him again the next day, and he was later told that the worker was not coming in as she had hurt her back.
The chiropractor’s chart notes indicate that in the fall of 2007, the worker had been regularly attending for chiropractic treatment. The chart also confirms that the next day after the accident, on November 28, 2007, the worker sought treatment for her back and the description of her symptoms changed on November 28 to indicate: “L (left) side scapula down leg.” It is notable that the pain reported by the worker to the chiropractor now encompasses a wider area of the back than that initially reported to the chiropractor. The panel’s decision is limited to consideration of the issue of claim acceptability and does not address the issues of ongoing compensability.
In view of the corroborating evidence reflected in the timesheets, K.B.’s recollections, and the chiropractor’s chart notes, the panel is satisfied on a balance of probabilities that the worker suffered an accident at work on November 27, 2007 when she pulled on a hose which was frozen in the snow. The accident caused her to aggravate pre-existing low back problems and to experience a sciatic episode as reflected in the chiropractor’s notes of November 28, 2007. We therefore find that the worker’s claim is acceptable. The appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of March, 2009