The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker has three claims with the Workers Compensation Board (“WCB”) for back injuries that occurred in the workplace in 2001, 2005 and 2007.

The worker is presently appealing a decision made by Review Office on her 2001 claim which determined that the definition of an accident had not been met and therefore the claim for compensation was not acceptable. 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 April 13, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker has three claims with the WCB for injuries that occurred in the workplace in 2001, 2005 and 2007. The first claim filed by the worker was on July 19, 2005 for a low back injury that occurred on July 15, 2005. The claim for compensation was accepted based on the diagnosis of a prolapsed lumbar intervertebral disc. In a conversation with a WCB adjudicator on July 25, 2005, the worker indicated that she suffered a slipped disc in 2001. She was a casual worker at the time and was off work for a year due to the injury. No WCB claim was initiated at the time for the 2001 incident.

The second claim filed by the worker was on August 20, 2007 for a low back injury that occurred on August 6, 2007. The worker was diagnosed with an acute disc herniation and spinal stenosis. The claim for compensation was accepted and benefits were paid to the worker. On August 30, 2007, the worker advised a WCB adjudicator that she had work-related back problems in 2001 but never filed a WCB claim. She indicated that her back had fully recovered after the injury.

On March 12, 2009, the worker filed a third claim with the WCB for work related back problems she experienced in 2001. This claim is the subject of this appeal. The worker alleged that the symptoms in her low back and left leg started on July 19, 2001 from scrubbing floors and lifting laundry. The worker said she did not file a WCB claim sooner as she did not speak English at the time and there was no one to help her. The worker said she did not know that the WCB existed. The worker indicated that she was a casual worker in 2001 and was working on a call in basis.

When speaking with a WCB adjudicator on March 17, 2009 and June 4, 2009, the worker noted that on the day of the accident, she worked in housekeeping and laundry. She had a lot of pain in her back. She did not mention it to anyone at work. She came home that day at 3:15 and laid down. Her husband came home at 5 p.m. and made supper as she was in pain. Around 7 p.m. she decided to do some laundry that needed to be done and experienced even more pain when she was slowly placing the laundry into the machine. The worker saw a doctor the next day for treatment. In 2001, the worker’s job duties were described as follows:

· lifting and emptying bags of laundry, folding and sorting laundry, washing laundry and placing laundry into dryer.

· dry mop and wash floors, dust, clean toilets, dump garbage, wash dining room and activity room floor;

· approximately five hours were spent in laundry and three hours were spent in housekeeping.

The worker noted that the first time she mentioned back pain to her employer was in 2005 when she had another accident. The worker was never told by her employer to report a workplace injury. She felt that her English was poor when she started with her employer. The worker indicated that she first felt pain on July 19, 2001 while lifting laundry bags onto a scale.

Medical information on file consisted of hand written chart notes showing that the worker sought medical treatment on August 24, 2001 for low back and left leg pain that suddenly occurred one month earlier when picking up a bathing suit. (On June 4, 2009, the worker explained to the WCB adjudicator that she told the doctor that her pain started at work and then it came on again later that day while doing laundry at home when she bent down to pick up some clothing.) The physician diagnosed the worker with degenerative changes and disc bulging.

On June 19, 2009, it was confirmed to the worker that the WCB was unable to establish a relationship between the development of her current low back and left leg pain and an accident “arising out of and in the course of” her employment on July 19, 2001. As a basis for her decision, the WCB adjudicator indicated the following:

· the worker completed her shift that day and continued to work afterward without complaint;

· there was no work related accident history provided to her attending physician when seen on August 24, 2001;

· the worker did not report an accident or any difficulties to her employer in 2001 and;

· the worker reported that she did not experience any ongoing symptoms beyond 2002 as it related to her 2001 accident.

On October 6, 2009, a worker advisor asked Review Office to reconsider the adjudicator’s decision of June 19, 2009. The worker advisor outlined the position that the worker sustained an injury to her low back and left leg during the course of her employment in July 2001 based on the following factors:

· the worker sought medical attention on July 19, 2001, the day following the July 18, 2001 incident;

· the worker experienced the onset of pain in her low back down to her left leg on July 18, 2001 after lifting bags of laundry onto a scale;

· the results of an October 23, 2001 CT scan which showed a moderate sized left sided disc protrusion and spinal stenosis. This was the cause of the worker’s difficulties and an aggravation of the condition could result in the symptoms described by the worker.

On November 20, 2009, Review Office confirmed that the worker’s 2001 claim for compensation was not acceptable. In reaching its decision, Review Office stated, “…The only evidence which supports the worker is the history provided by her years after the fact. The medical reports do not corroborate the worker’s history. The worker said that she did not report the accident to her employer. It is unknown whether the worker claimed employment insurance or other benefits following her injury. If she did, it is assumed she did not provide them with a history of a work accident or they would have directed her to the WCB. Review Office is of the opinion that the weight of evidence does not allow it to conclude that, on a balance of probabilities, the definition of an accident has been met.” Review Office also stated in its decision that the worker’s claim did not met the requirements of section 17 or 19 of The Workers Compensation Act (the “Act’). On November 13, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The August 24, 2001 chart notes read, in part: “Seen re: low back pain … onset ~ 1 month sudden when picking up bathing suit. Pain constant, not relieved by position.”

As noted earlier, the EI application form dated September 13, 2001 indicates: “Not sure whether occurred at home or while working.”

After reviewing the evidence as a whole, the panel is not satisfied on a balance of probabilities that the worker suffered a back injury at work on July 18, 2001. The July 19, 2001 doctor’s notes reference back pain for one year prior. It may well be that the worker had been experiencing general soreness in her back while at work, particularly given the physical nature of her job duties. The evidence would suggest, however, that the more acute and disabling incident occurred while the worker was at home and picking up a bathing suit/laundry. Both chart notes refer to pain after “bending/picking up” as opposed to “lifting/swinging”, which is the mechanism of injury described by the worker at the hearing. In the EI application form, the family physician indicates uncertainty as to whether the injury occurred at home or at work. It is notable that the family physician did not forward a medical report to WCB, which would suggest that he did not view the worker’s back problems as being work-related.

Overall, the panel is not satisfied on a balance of probabilities that the worker injured her back while lifting and swinging a bag of laundry at work on July 18, 2001. We therefore find that her claim is not acceptable. In view of our finding, the panel need not consider whether an extension of time ought to be granted pursuant to s.109 of the Act.

The worker’s appeal is 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 4th day of June, 2010