Decision #102/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to wage loss or medical aid benefits after November 6, 2011 as his loss of earning capacity was not related to his compensable injury of November 1, 2011. A hearing was held on September 5, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits beyond November 6, 2011.Decision
That the worker is entitled to wage loss and medical aid benefits beyond November 6, 2011.Decision: Unanimous
Background
The worker filed a claim with the WCB for a middle low back and left hip injury that occurred on November 1, 2011 when he was struck by his own parked vehicle which had been hit by another vehicle. File records revealed that the worker sought medical attention on the same day of the accident and was diagnosed with a soft tissue injury to his low back and hip. The worker was advised to commence physiotherapy treatment if he was not better within one or two days.
On November 8, 2011, the worker advised the WCB that he started to feel his back tighten up about one and a half hours after the November 1, 2011 accident. It was mainly in the centre of his back and also on the left hip. He did not feel any tingling or numbness down his legs. He said he was able to finish his shift but his back remained sore for the rest of the day and continued on into the next day. The worker advised that while at home on November 5, 2011, he bent down to put his shoes on and felt immediate pain in the same spot. He limited all his movements for the rest of the weekend and rested. When he attended physiotherapy treatment on November 7, 2011, the physiotherapist told him that his back could be disc-related.
On November 9, 2011, primary adjudication advised the worker that his claim for injury occurring at work on November 1, 2011 was being accepted as a no time loss claim and that no responsibility would be accepted for the subsequent non-compensable injury that happened at home when he bent down to put on his shoes.
On November 22, 2011, the worker provided the WCB with further details of what happened on November 1, 2011 as well as details of his activities and how his back felt up to November 5, 2011 when he bent down to put on his shoes. The worker asked that the decision made on November 9, 2011 be reconsidered based on this new information, together with a one page report from his physiotherapist, a report from his doctor and a report from a workplace safety and health ergonomist.
The WCB adjudicator spoke with the worker's employer on November 23, 2011 to obtain information on how the worker functioned at work after the November 1, 2011 accident. The employer confirmed that the worker was urged to seek medical attention after the November 1, 2011 accident and that the next day he looked sore by the way he moved. They noted that the worker was told not to do any outside activity and that they had an ergonomist come and review his work station to help reduce some of his discomfort.
In a second decision dated November 28, 2011, the worker was advised by the WCB that the new information submitted had been reviewed and there would be no change to the original decision made on November 9, 2011. On January 30, 2012, the Worker Advisor Office appealed this decision to Review Office on behalf of the worker. The worker advisor advanced the position that the worker was entitled to benefits beyond November 6, 2011 because his loss of earning capacity and need for medical treatment was a direct result of his November 1, 2011 workplace accident.
On March 28, 2012, Review Office determined that there was no entitlement to wage loss benefits and medical costs beyond November 6, 2011. Review Office said there was insufficient evidence to support a relationship between the worker's difficulties following the November 5, 2011 incident at home and the November 1, 2011 workplace injury as there was a significant increase/change in the worker's signs and symptoms following the incident at home which could not be attributed to the workplace injury. On May 22, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on September 5, 2012.
Reasons
Applicable Legislation
In deciding appeals, 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(2) of the Act provides that a worker who is injured in an accident, as defined under subsection 1(1) the Act, is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Worker's Position
The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker answered questions from the worker advisor and the panel.
The worker provided a detailed description of the accident. He said that he was standing by his car when another vehicle ran into the car. The impact pushed the vehicle 2 to 3 feet sideways and threw him about 3 feet. He landed on his feet. About 15 minutes after the impact, his hip and low back began to ache. By the next morning the pain had worsened. He was able to complete the job he was working on and returned to the office. He completed accident-related forms but was not able to continue working for the balance of the day. He saw his physician later that day.
The worker explained that the next day his hip and mid back area ached and were very tight but he was able to report to work. He was not able to perform his regular duties. He worked on a pre-scheduled training module that day, and did no site inspections for the balance of the week. He said his symptoms remained the same until November 5 which was on the weekend. He bent forward to pick up his shoes when he felt a sharp pain like a lightning bolt in his lower back. He said it was very intense and knocked him down. The pain lasted about 20 to 30 seconds. It was in the exact same location as his original area of pain. This pain reoccurred on 2 or 3 occasions, the last being when he was receiving physiotherapy treatment. The worker subsequently went off work.
The worker advisor submitted that the worker is entitled to wage loss and medical aid benefits after November 6, 2011 because the need for medical treatment and time off work was the direct result of the November 1, 2011 workplace accident. He disagreed with WCB's position that the November 5, 2011 incident was a new non-compensable accident and that it caused the worker's symptoms and resulting time loss. He submitted that the November 5, 2011 event simply exacerbated the compensable injury.
Alternatively, the worker advisor submitted that the worker would be entitled to benefits even if the effects of the November 5, 2011 incident were found to be non-compensable pursuant to WCB policy 44.10.80.40 (Further Injuries Subsequent to a Compensable Incident).
Employer's Position
The employer was represented by its Senior Staff, Health & Safety Officer. The employer's HR Consultant also attended.
The employer representative confirmed that the worker reported the incident immediately. He advised that it was obvious to him that the worker had been injured and was working with pain. He advised the panel of the steps the employer proactively took to accommodate the worker. The worker was encouraged to reschedule worksite visits, and to work on training courses (at his office), and other sedentary work duties.
The representative also provided a detailed description of the worker's job duties.
Analysis
The issue under appeal is whether the worker is entitled to wage loss and medical aid benefits beyond November 6, 2011.
For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity after November 6, 2011 is due to the compensable workplace injury. In other words, the panel must find that the worker's inability to work and need for medical treatments after November 6, 2011 was due to the workplace injury. The panel was able to make this finding. After considering all the evidence, the panel finds, on a balance of probabilities, that the November 1, 2011 workplace accident resulted in the worker's loss of earning capacity and medical treatments beyond November 6, 2011.
The panel finds that the workplace accident was significant, involving sufficient force to push a vehicle sideways 2-3 feet and send the worker flying 3 feet. The panel concludes that the worker was hit with significant force resulting in ongoing pain/discomfort and restricted duties. The employer observed the worker on the day of the accident and on subsequent days. The employer confirmed that the worker was in pain. He observed that the worker's movements were guarded and he was cringing as he moved about the workplace.
On the other hand, the panel finds that the incident at home on November 5, 2011 was quite minor in comparison. The worker was simply starting to bend forward to pick up his shoes. He had only reached 45 degrees from a vertical standing position when he felt a sharp pain he described as a "lightning bolt" in his lower back, primarily on the right side of his spine above the waistline. The sharp pain lasted about 30 seconds. The pain was in the same area as his initial pain. The panel finds that this incident exacerbated the worker's existing symptoms which were still in an acute phase and had yet to be treated but was not a separate accident.
In this regard, the panel agrees with the treating physician's November 18, 2011 report that the November 5, 2011 incident was not a new accident and that the worker's activities did not cause a new injury. The panel finds that the worker's bending was so trivial that it does not qualify as a "chance event" separate and distinct from the compensable accident and subsequent symptoms.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of September, 2012