Decision #122/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that allegedly occurred at work on September 29, 2008. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that a work injury occurred on September 29, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission and a hearing was held on September 23, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker reported to the WCB that he felt a twinge in his low back region on September 29, 2008 while carrying a pail full of oil that weighed between 60 to 70 pounds. The worker stated,

“I just had to bend over quite a bit because the oil is hot so I had to be very careful. The pail has a wide mouth so my arms were spread quite a bit apart. The mouth of the pail may be close to two feet. I had to take a container of fresh oil to pour into the fryer. I had to lift that about chest height. My lower back got worse and worse, to the point where I could not work. I was getting a sciatic like pain. It was going down from lower back to my left leg…I finished my shift that day. The next few days, I continued to work, but my back got worse and worse.”

The worker stated that he reported his back injury to his boss (kitchen manager).

Medical reports on file consisted of a hospital report dated October 15, 2008 which diagnosed the worker with spinal stenosis and disc bulging and a CT scan of the lumbar spine of the same date. On October 27, 2008, the treating physician’s diagnosis was lumbar disc bulging at L2 through to L5.

On October 30, 2008, a WCB adjudicator spoke with the kitchen manager who indicated that she was not aware of the worker injuring his back until she received a doctor’s note. She indicated that the worker did not complain of an injury to his back related to fryer oil.

In a telephone conversation with the WCB on November 7, 2008, the worker stated that all of his co-workers were aware of his injury. He indicated that he had problems with his back before September 29 but did not officially report it. He just mentioned it in passing to his co-workers and every one was aware of his condition. On November 20, 2008, the worker again spoke with his WCB adjudicator and provided additional information about his prior back problems and the onset of his symptoms.

In early December 2008, the WCB adjudicator contacted two witnesses identified by the worker. Both co-workers were unable to confirm the worker reporting that he injured his back from lifting oil.

In an adjudicative decision dated December 8, 2008, the worker was advised that his claim for compensation was not acceptable as the evidence did not establish an accident arising out of and in the course of his employment. The evidence to support the decision was outlined as:

· the worker did not seek medical treatment until October 9, 2008;

· his employer and co-workers were unable to confirm an accident and were not aware of his condition until a doctor’s note was received in October 2008;

· the medical information did not support a work related accident nor a history of trauma being identified. The worker was diagnosed with multiple disc problems to his low back.

On April 21, 2009, the worker appealed the above decision to Review Office. On April 29, 2009, Review Office determined that the claim for compensation was not acceptable as it was unable to confirm the worker’s contention that his low back symptoms had arisen through his employment. Review Office outlined the following reasons for its decision:

· the witnesses identified by the worker were not aware of any work related injury occurring;

· the CT scan findings from October 15, 2008 would be pre-existing and had no relationship to the worker’s brief term of employment with the employer of record;

· the worker made no mention of any work related injury at his initial hospital visit on October 15, 2008;

On May 20, 2009 the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information from the treating physician and hospital where he attended for treatment. The additional information was later received and was provided to the worker for comment. On November 10, 2009, the panel met further to discuss the case and rendered its final decision.

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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s low back condition arose out of and in the course of his employment.

The worker’s position:

The worker appeared at the hearing in person. He submitted that prior to the accident, he never had any major back problems. Following the accident, his back got worse and worse and by October 15, 2008, he was not able to work anymore. He has been off work since that time. Over the past year, he experienced some recovery, but recently suffered a set back which was triggered by a coughing fit. He remained unable to return to work.

His evidence regarding the timing of the injury differed slightly from the information which was previously provided to the WCB. He stated that he injured his back on his third day at work. As his first day of work was September 15, 2008, the injury must have occurred on September 17. He was asked to change the oil in the deep fryer and this required him to fill a large cooking pail with hot oil. He then had to carry it outside. Due to its size, weight and temperature, it was awkward to carry and after he finished the task, he felt a kink in his lower back. He also felt sciatic pain in his left leg. He mentioned to the head sous chef that he was feeling pain, but she just joked about it. The following week, the worker was asked to change the oil again. He had already been working despite the pain, and changing the oil a second time aggravated the injury. The worker’s evidence was that because of the pain, he scheduled an appointment with his doctor for October 1, 2008. Unfortunately, he got mixed up and missed the appointment. He then rescheduled the appointment but couldn’t get in to see his doctor until October 27, 2008. In the meantime, his pain got worse and worse and he went in to the emergency department because he could not stand it anymore. His last date worked was October 14, 2008. In the days prior, he forced himself to go in for his shifts, but by October 14, he could no longer work. The worker asked that his claim be accepted as it was caused by his work activities.

Analysis:

The issue before the panel is whether the worker’s low back condition arose out of and in the course of his employment as a cook in September, 2008. To accept the worker’s appeal, the panel must find on a balance of probabilities that the worker’s lumbar disc bulging was caused by his job duties. Based on the evidence before us, we are not able to make that finding.

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

  • The treating physician’s chart notes indicate that in fact, the worker did not miss his October 1, 2008 appointment. He was seen on October 1, 2008, but then missed his next appointment that was scheduled on October 21, 2008. The chart notes from October 1, 2008 indicate that the worker was seen for follow-up of an unrelated medical condition, refill of medication, and for filling out a driver license form. There is a notation which states: “nil complaints”. Although five medical conditions are identified, there is no mention in the chart notes of any lumbar problems. This makes it highly unlikely that the worker suffered an acute lumbar disc injury anytime in September 2008;
  • None of the reports on file describe an acute injury with sudden onset of pain, which would be expected with a disc bulge injury. All of the reports describe a gradually increasing pain, which is more consistent with a worsening degenerative condition;
  • Most notably, the panel received a treatment record dated October 9, 2008 from the hospital which the worker attended. This would be the first record of medical treatment sought by the worker for medical treatment arising from a September 2008 accident. The report stated, in part: “58 year old complaining of hip pain on left side for a while that recently getting worse; pain radiate to lateral thigh and to the foot; feel numbness on lateral aspect of left foot. He is a cook and stands on feet most of the day.” There is no description of an acute injury at work while lifting a heavy pail;
  • Although the worker denied any previous major back problems, other information from the hospital indicated that on February 21, 2008, he had clinical complaints of: “back pain for a week radiating to left leg, night sweats.” An x-ray was performed which indicated osteoarthritic changes, particularly at L4/L5.

In view of the foregoing, the panel is unable on a balance of probabilities to relate the worker’s low back condition to an accident which occurred at work in September, 2008. The worker’s appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of December, 2009

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