Decision #47/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that she alleged occurred in the workplace on April 25, 2008. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered a personal injury by accident 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 February 18, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On May 2, 2008, the worker reported to the WCB that she injured her low back on April 25, 2008 when she lifted a box containing six cans of fruit to prevent it from getting wet after a jar of sauce fell to the floor and broke. The worker stated that she lifted and dragged the box to the right and felt a bit of a pull in her back. She didn’t think anything of it and wanted to get the sauce wiped up as it was running under the counter.
The worker further advised that her back condition started to get worse on Sunday to the point where she could hardly move. She thought it may be related to a kidney problem. She went to work and worked cautiously between Monday and Wednesday. On Thursday she went to a hospital facility on her day off and was told that her condition was related to lifting and not her kidneys.
The worker also reported that “On Tuesday, I may have twisted when I lifted a box of celery”. She reported that she lifted the box from the floor and placed it on a trolley at hip height and then wheeled it to the cold store fridge. Then, she picked it up off the trolley and put it down to a lower shelf which was about six inches off the ground.
The Employer’s Accident Report stated that the worker reported the April 25, 2008 low back injury to them on May 1, 2008. It stated that the worker moved a 37.5 lb. box off the floor so that it would not get wet from Worcheshire sauce that broke and ran all over the floor. The worker felt a twinge in her lower back and thought afterward that it was from her kidneys.
The employer provided the WCB with a copy of a “Employee Injury Incident Report” related to the April 25, 2008 accident. It stated, “I was putting away a bottle of Worcheshire sauce (Lg) up over my head shelf. It broke. The sauce was running. I moved a box of fruit away from the spill from floor and felt a twinge in back.”
On May 6, 2008, the worker advised a WCB adjudicator that she felt a twinge in her back on April 25, 2008 when the workplace accident occurred. She did not report the injury as she thought it would get better. On April 27, 2008, her back pain worsened. She mentioned it to some co-workers and they told her it must be a kidney problem. The worker indicated that she did not mention a workplace accident to any co-workers or her employer prior to May 1, 2008.
The adjudicator asked the worker if she had back pain prior to the date of accident. The worker indicated that her back was fine prior to April 25, 2008. The adjudicator advised the worker that when she spoke to her on April 23, 2008 regarding her other ongoing claim for a shoulder injury, the worker reported that she had low back pain for about a week. The worker stated that this low back pain was different. Her back was a little achy. It came on and off and she did not require or seek medical treatment.
After the date of accident, the worker stated that her back pain was severe. She had difficulty sleeping and would awake with a lot of pain. She attended a hospital facility on May 1, 2008 and the doctor confirmed that her back pain was related to her workplace accident and not her kidneys. When her back pain worsened, she went to the hospital again on May 4, 2008.
On May 6, 2008, the worker’s supervisor advised the WCB that the worker submitted several notice of injuries for minor accidents at work and that the worker should be aware of the process for reporting. The supervisor was concerned over the worker’s delay in reporting.
On May 17, 2008, the worker returned to her regular work duties.
Medical information on file showed that the worker complained of right shoulder and back pain when she sought medical treatment on May 1, 2008. When next seen on May 6, 2008, the treating physician noted that the worker complained of more back pain and was unable to work.
Reports from the hospital facility recorded that the May 1, 2008 visit was for low back pain “constant since Sun., worse today, seen two months ago with same”. The diagnosis rendered was “back pain”. When seen for treatment on May 3, 2008, the reports noted that the worker complained of low abdominal pain that radiated into the back and that the worker was seen the month previously for the same complaint. The worker’s symptoms started “last Sun. getting worse frequency”. The diagnosis was diverticulitis.
The worker was seen by a physiotherapist on May 1, 2008 for what was reported as: “sudden onset of low back pain after lifting a box of vegetables on April 25, 2008.” The diagnosis rendered was a lumbar sprain/strain.
On June 3, 2008, the worker was advised that the WCB was not accepting responsibility for her claim which included time loss and medical treatment. The adjudicator noted that the worker related her back difficulties to lifting some cans on April 25, 2008. The worker reported the injury to her employer and went to seek medical treatment on May 1, 2008. The worker continued to work at her regular duties without difficulties until April 30, 2008. The adjudicator concluded that an accident had not been established as the worker delayed in reporting an injury to her employer, her healthcare advisor and the WCB.
On July 12, 2008, the worker appealed the above decision to Review Office. The worker acknowledged that there was a slight delay in reporting her injury but she injured her back on April 25, 2008. She felt that her claim was a just one and ought to be accepted under subsection 17(4) of The Workers Compensation Act (the “Act”).
In a decision dated August 12, 2008, Review Office confirmed that the worker’s claim was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of her employment on April 25, 2008. In reaching its decision, Review Office relied on the following factors:
· the worker reported two separate incidents. One occurred on April 25, 2008 after lifting a box of cans. The second incident occurred the following Tuesday when she “may have twisted” while lifting a box of celery. The incident of April 25, 2008 was not reported to the employer until May 1, 2008.
· the worker reported that her symptoms became worse on Sunday, April 27, 2008 but she continued to work her regular work duties.
· the worker’s history of accident to her physiotherapist on May 12, 2008 was related to the sudden onset of low back pain after lifting a box of vegetables. This was inconsistent with the history of accident reported by the worker to the WCB on April 25, 2008. Review Office indicated that the sudden onset of pain was inconsistent with the second incident the worker referenced in her worker’s report whereby she “may have twisted when I lifted a box of celery”.
· the worker told her adjudicator on May 6, 2008 that her back was fine prior to April 25, 2008. When speaking with the adjudicator on April 23, 2008, the worker reported that she had low back pain for about a week.
· subsection 17(4) of the Act was not applicable in the worker’s situation as it pertained to the manner of giving notice upon the employer.
On September 3, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission on the worker’s behalf and a hearing was held on February 18, 2009.
Reasons
Applicable Legislation:
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. (emphasis added)
The key issue to be determined by the panel deals with causation and whether the worker’s claim for low back pain arose out of and in the course of her employment.
The worker’s position:
The worker appeared at the hearing assisted by a worker advisor. It was submitted that the worker’s job duties as a dietary aide were varied and involved heavy lifting and awkward positioning. In this case, the worker injured her back while lifting, and as she continued work, her condition deteriorated. While it was acknowledged that the worker did not immediately report the specific incident, it was submitted that her explanation for failure to report was reasonable. She had simply discounted the extent of her injury, in hopes that it would resolve and that she could continue working. Unfortunately, it did not resolve. This does not mean, however, that an injury did not occur or that it should not be accepted.
The employer’s position
Two representatives from the employer were present at the hearing. The employer agreed with the WCB’s decision that the evidence did not establish that the worker sustained a personal injury by accident arising out of and in the course of her employment. The various inconsistencies in the worker’s reporting of events were highlighted, as was the delay in reporting. It was also submitted that the fact that the worker had a non work-related medical condition that radiated pain to her lower back was strongly suggestive of a cause outside of her work duties for her symptoms of pain. The employer’s position was that the WCB decision to deny the claim should be upheld.
Analysis:
The issue before the panel is whether the worker’s lumbar strain/sprain arose out of and in the course of her employment as a dietary aide. To accept the worker’s appeal, the panel must find on a balance of probabilities that the worker’s low back pain was related to her job duties. Based on the evidence before us, we are able to make that finding.
At the hearing, the panel questioned the worker fairly extensively about how the injury occurred and the progression of her pain symptoms. The worker’s recollection about specific dates of events was unclear and she was somewhat vague when relating details. Nevertheless, the panel found the worker to be forthright and we accept her evidence as credible. The panel suspects that the worker’s ineffective manner of communicating information may have caused some misunderstanding on this file.
When questioned, the worker identified her low back pain as being localized in the left region of her lower back, just below her waist. With respect to the onset of her pain, the worker’s evidence was that she first felt pain in that area when she lifted the box of celery. She stated that this occurred on a Tuesday prior to the April 25, 2008 incident. This differs from the information contained on the WCB file which refers to the lifting having occurred on the Tuesday after the incident.
The worker then indicated that she had dull aching, burning type pain until April 25, 2008 when the pain became much worse after she lifted the box of cans of fruit. Prior to that, the pain was aching, but afterwards, the pain changed into a sharp pain. It was in the same location as where she had felt the twinge after lifting the box of celery. The pain became progressively worse over the next few days, but she continued to work. Her evidence was that during the time that she worked, she did not notice the pain as much, and she would frequently stretch her back to relieve any discomfort. Despite the sharp pain she was now feeling, she continued to perform her regular job duties. The pain would alternate between a burning sensation and a feeling of sharp pain. Finally, on April 30, 2008, she called in to her employer to say that she could not come in to work. In response to questioning by the panel, the worker indicated that she finally determined she was unable to work that day due to the fact that she had not slept the night before because of the pain.
It is the panel’s opinion that the evidence supports the finding that the worker’s lumbar strain/sprain was either caused or aggravated when she lifted the box of cans of fruit during the performance of her job duties on April 25, 2008. While the evidence is unclear as to whether she also suffered a strain by lifting a box of celery a few days prior to the accident date, the worker’s evidence has been consistent in identifying a definite worsening of her low back pain after lifting the box of cans of fruit on April 25, 2008.
With respect to delay, the worker’s explanation was that she thought that the pain would resolve itself and therefore she did not report the injury and did not seek medical attention. She kept on working until the pain got so bad that she could not sleep through the night. It was at that point that she reported the incident to her employer and went to see a doctor. In the panel’s opinion, it was not unreasonable for the worker to work through the pain in hopes that the injury would resolve itself. We feel that a five day delay in reporting is not a significant delay which would warrant barring the worker’s claim for compensation, particularly where the reporting was still well within the 30 day limit referred to in subsection 17(1) of the Act.
For the reasons stated above, the panel finds on a balance of probabilities that the worker’s lumbar strain/sprain arose out of and in the course of her employment as a dietary aide. The worker’s claim is therefore acceptable and her appeal is allowed.
Panel Members
L. Choy, Presiding OfficerR. Koslowsky, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of March, 2009