Decision #50/11 - Type: Workers Compensation

Preamble

In 2010, the worker filed a claim with the Workers Compensation Board ("WCB") for a low back injury that occurred on January 12, 2008 which he related to work involving installation of a windshield. His claim for compensation was denied by primary adjudication and Review Office on the grounds that neither were able to establish that the worker suffered a personal injury by accident arising out of and in the course of his 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 23, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On January 14, 2010, the worker filed a claim with the WCB for a low back injury that occurred at work on January 12, 2008. The worker stated:

We were installing a windshield. It weighed about anywhere from 120 to 160 pounds. We were carrying it to go up scaffolding. The other guy noticed it was quite heavy and we put it down. That was the end of it. I ended up getting the window put in and I felt no pain, but the next day, I could not walk. I was getting spasms in the lower back.

The employer advised the WCB that on January 14, 2010, the worker claimed that he lifted a window two years ago on January 12, 2008 which caused him back pain. The worker's supervisor was not aware of an accident and there were no records of an accident.

The worker had a prior claim with the WCB for a low back and rib injury that took place on January 9, 2008 when he got pinned between a forklift and a metal bar. When speaking with a WCB adjudicator on February 11, 2008, the worker indicated that he remembered rubbing his rib area and felt a burning sensation. He did not think much of it and he continued with his regular duties of window installation. On January 10, 2008, his ribs were sore and his mid back caused him some discomfort and he developed a welt on his back where he was pinned up against the metal bar. He reported the incident to his supervisor and filled out a green card and continued to work his regular duties. The worker said that on January 12, 2008, he and another window installer were installing a 160 lb window. It was after that when he started to experience more serious symptoms. He told his employer that he was having difficulties on January 14 and he was then moved from his regular duties to the tool cage where he had the option of sitting and standing as required.

A chiropractor's first report revealed that the worker sought medical attention on January 16, 2008. The worker's description of injury was "hit in the back by a forklift that knocked him into a pole; then re-aggravated back again or re-intensified it by trying to lift a heavy window, then felt immediate pain and could hardly move." The diagnosis outlined was left sided bruised ribs, intense muscle spasm throughout thoracic and lumbar spine in concurrent posterior joint dysfunction.

On February 12, 2008, a WCB adjudicator spoke with the treating chiropractor in regard to his report of January 16, 2008. The chiropractor indicated that the worker's difficulties may not be related to the initial incident of January 9. The worker's complaints had been more directed to the low back and right leg. The chiropractor noted that the worker made reference to picking up a window with a co-worker and suggested that the injury could have occurred then. It was felt that the worker's injury was more consistent with picking up a window.

On February 12, 2008, the adjudicator contacted the employer for additional information. The employer indicated that he spoke with a first aider who was helping the worker with the installation of a window. The first aider said the worker made no complaints at any time that he injured his back. The employer noted that the worker came to work on January 14, 2008 and was limping. The worker was asked if his limping was related to the incident of January 9 and he said he did not think so.

In a report dated January 25, 2008, the attending physician noted that the worker was knocked backwards by a forklift on January 9 that lunged forward and pushed him backwards into a metal railing where he struck his low back. Examination revealed tenderness in the lumbosacral area and pressure created pain in the right SI joint. The remainder of the physical exam was normal. The diagnosis was contusion and positional strain, and possible mild inflammation in the right SI joint.

A CT scan of the lumbosacral spine taken August 14, 2008 indicated a clinical history of pain radiating to the left leg. At the L4-5 level, there was a very small central and right posterolateral disc bulging without disc herniation, spinal stenosis or nerve root compression. Very minimal facet degenerative change was noted bilaterally. At the L5-S1 level, there was a broad shallow central disc herniation. There was no compression of the thecal sac or central spinal stenosis. The disc material contacted the left S1 nerve root without definite evidence of displacement or compression or irritation of the left S1 nerve root by the disc material. Clinical correlation was recommended. The disc material approached the right S1 nerve root without displacement or compression of the right S1 nerve root.

On October 17, 2008, the worker started to see a physical medicine specialist. By report dated February 5, 2009, the specialist indicated a diagnosis of left S1 radicular pain based on clinical evaluation and CT scan.

On January 14, 2010, the worker was advised that the WCB was unable to accept responsibility for his claim related to the January 12, 2008 incident. The reasons for the decision were outlined as follows:

You have reported that (sic) January 12, 2008 you lifted a window causing you to injury (sic) your lower back. The co worker who you performed this job with could not confirm that you made any reference to lower back pain. It could not be confirmed that you reported this work related incident to your employer until January 2010 as being the cause of your ongoing discomfort, although they were aware of your lower back difficulties associated with the events of January 9, 2008. Initial medical information pertains to your lower back, left side. The later medical reports provided indicated that you are seeking ongoing treatment for a disc herniation of lumbar disc five and sacral disc one. Based on the above it is the opinion of claim services that an event arising out of your employment that caused you to have ongoing back difficulties has not been confirmed as such your claim has not been accepted.

In a submission to Review Office dated October 3, 2010, a worker advisor outlined the position that there was evidence that an accident occurred on January 9, 2008 as the worker reported the incident to his supervisor on January 10, 2008 and filled out a green card. The chiropractic report of January 25, 2008 confirmed bruising and thoracic and lumbar spasms that would be consistent with a contusion injury. With regard to the worker's claim for injury occurring on January 10, 2008, the worker advisor indicated that the medical information supported that a disc herniation could have occurred as a result of lifting a heavy object. The worker's progression of symptoms from January 12, 2008 until he went off work at the end of January 2008 can be typical of disc herniations.

On April 6, 2010, Review Office determined that the worker's claim was not acceptable. Review Office indicated that upon weighing the whole of the evidence, it was unable to corroborate that the worker injured himself on January 12, 2008 as he did not report a date of injury or accident when seen by a chiropractor on January 16, 2008; the co-worker who had been assisting him with the install was not aware of any injury to the worker; and the employer had only learned of the accident and its injury some two years after its occurrence. Review Office felt there was a lack of timely reporting by the worker in order to establish that he suffered personal injury by accident arising out of and in the course of his employment on January 12, 2008. On April 16, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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 worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker sustained an injury to his low back on January 12, 2008 and that there was a relationship between his ongoing low back and leg difficulties and the workplace injury. It was noted that three days earlier, the worker injured his back and ribs on January 9, 2008 when he was struck by a forklift. He reported this incident to his supervisor and filed a green card the next morning. He had pain in his ribs, left side, mid back, and left scapular area, but kept performing his regular duties. On January 12, 2008, he was installing a windshield weighing approximately 160 lbs. He was carrying it with a co-worker, who had to put it down halfway to take a break because of the weight. They then proceeded to install the windshield, and completed the workday. The worker did not feel anything, aside from the pain which he thought was attributable to the January 9 incident. The next morning, when the worker went to get out of bed, he "hit the floor" as his legs were not working. He experienced intense spasms in his low back which was followed by tingling in his legs, which he did not have before. The worker has since been diagnosed with left S1 radicular pain. It was submitted that the worker's diagnosis is consistent with the mechanism of the January 12, 2008 injury and that the WCB should be responsible for time loss and medical coverage.

When asked why he did not file a claim until January 14, 2010, the worker's response was: "Again, I didn't think I got hurt from that window. I wasn't sure. And I have been trying to discuss this with union representation and that that (sic) I have at work and I was getting nowhere with that." It was only when the worker sought assistance from the Worker Advisor Office that the January 12, 2008 incident was identified as the occasion when he got hurt, and a claim was then filed in respect of that incident.

The employer’s position:

A representative from the employer appeared at the hearing. The employer indicated that its main concern was with the late filing of the claim. The worker was obviously aware of the WCB process, as he had reported the January 9 incident. The worker's statement was that he did not think that he got hurt from lifting the window, and after two years of working with union representation, it was only when he contacted the Worker Advisor Office that he "was told" that he was hurt from lifting the window. The employer had major concerns regarding the reliability of the evidence, given this course of events. The employer did not question that the worker had a bad back, but was of the opinion that it was not work related.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to his back during the course of his employment on January 12, 2008. We are not able to make that finding.

The worker's claim is for low back pain which he has been suffering since 2008. Diagnostic imaging from August 2008 indicates a disc herniation at L5-S1 with possible involvement of the left S1 nerve root. In October, 2008, the treating physical medicine specialist diagnosed the worker with left S1 radicular pain.

After reviewing all of the evidence, the panel is not satisfied on a balance of probabilities that the left S1 radicular pain was caused by an accident occurring on January 12, 2008. In coming to our decision, the panel relied on the following:

  • Although the mechanism of injury of lifting could be consistent with a disc herniation, the worker did not experience any unusual sensation when performing the task. There was neither pain nor any indication of an acute injury. At the time, it did not even occur to the worker that he may have hurt himself;
  • The worker completed the task of installing the windshield, without any problem with his back;
  • It was only significantly after the fact, and in hindsight, that the lifting duty was identified as a possible cause of his low back difficulties;
  • The worker was seen by a chiropractor and a family physician in January 2008. The chiropractor's report diagnosed left sided bruised ribs and intense muscle spasm throughout the thoracic and lumbar spine in concurrent posterior joint dysfunction. The family physician diagnosed contusion and possible strain, with possible mild inflammation in the right sacroiliac joint. It is notable that neither medical practitioner refers to any neurological type of injury or referred pain to the left leg;
  • It was not until the worker saw his regular family physician on June 18, 2008 that a diagnosis of possible lumbosacral disc prolapse was identified. This was approximately six months after the incident;
  • A physiotherapist report dated August 18, 2008 reported that the worker was assessed on August 11 for a 2 month history of severe low back pain. This indicates an onset of severe low back pain in June, 2008, which is consistent with the worker's first visit to his regular family physician;
  • The physical medicine specialist indicated that when he first saw the worker on October 17, 2008, the worker complained of symptoms being present for approximately seven months, which would suggest an onset in March 2008.
  • Although there is record of complaints of back pain and chiropractic treatment since January 2008, it is unclear as to whether these complaints are attributable to the earlier January 9 forklift incident, or to an accident occurring on January 12.

Unfortunately, there is simply not enough evidence to satisfy the panel that the worker's low back condition was caused by lifting a windshield at work. Given the lack of indication of acute injury at the time of lifting, the time delay of six months before a neurological injury was diagnosed, and uncertainty as to the timing of onset of radicular pain, we are not convinced that the worker suffered an injury causing left S1 radicular pain on January 12, 2008. We therefore conclude that the worker does not have an acceptable claim. The 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 21st day of April, 2011

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