Decision #137/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that a direct correlation did not exist between the injury sustained during the fall on October 7, 2011 and the medical issues for which the worker was treated after October 7, 2011. A hearing was held on November 1, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after October 7, 2011.

Decision

That the worker is entitled to wage loss and medical aid benefits after October 7, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an injury to his left shin that occurred at work on October 7, 2011. The worker stated:

I was walking and there are lots of skids on the floor and we were short staffed and I tripped over a pallet and put my hands out to stop my fall and landed on my hands. It didn't bother me at the time. The following morning when I got up I felt sharp pains in my left leg.

A Doctor's First Report dated October 11, 2011, described an accident as follows: "Woke Saturday a.m. with ++ pain left calf - went to work - made worse and cannot work today. Has been working 9 hour days x 1/12. No discrete injury. The diagnosis outlined by the physician was a left shin splints and to rule out stress fracture."

An x-ray of the left tibia and fibula taken October 11, 2011 revealed no bone, soft-tissue or joint abnormalities.

On October 17, 2011, the employer called the WCB to advise that they were unaware of any injury prior to October 12, 2011 when the worker brought in a doctor's note stating that he hurt his shin. The employer noted that the worker identified two co-workers to whom he may have reported his injury. The employer said he spoke to both co-workers. One co-worker said that he received a text message from the worker that his injury was not work-related. The other co-worker recalled the worker complaining about his leg but no official injury complaint was made. The employer stated that when he made the worker file a report, the worker stated that he went to turn on some lights and tripped over a skid injuring his leg.

On October 19, 2011, the worker provided the WCB with the following information:

  • he reported the injury to the person who was in charge. There were no supervisors around on the weekend. He thought that he told the person in charge about the injury on the Friday and then mentioned it to him again on Saturday because he was struggling with work. He was only able to work 5 hours on Saturday, October 8, 2011.

  • the reason he went to work on Saturday was because he did not think that the injury was that bad. After he hurt himself on Friday, he went home to rest and when he woke up there were sharp pains in his left leg. He came to work and told the person in charge and he still tried to work thinking it would get better. When he realized it wasn't, he told the person in charge that he had to go home early.

  • as it was the long weekend, the worker thought that with some rest, his leg would get better so he didn't seek medical attention right away. By Sunday it worsened to the point where he could feel the pain going up to his buttocks. He then sought medical attention on Tuesday after the long weekend.

  • when he originally hurt himself he didn't feel anything. He tripped over a pallet because they were all cluttered on the floor and when he fell over (forward), he put both arms in front of him to break his fall. After landing on both hands, he pushed himself up.

A Doctor Progress Report dated October 17, 2011 noted that the worker complained of pain in the left buttocks to calf muscle, worse when sitting and standing and with weakness. The new diagnosis outlined was a left hamstring strain.

On October 19, 2011, the WCB adjudicator contacted the person who was working with the worker on the Saturday morning. He said he asked the worker to come in on Saturday to do some overtime work when the worker mentioned having a sore leg. As they were cleaning up the clutter, the worker stated that he tripped over a pallet the day before. The worker said he was trying to get to a light switch when he tripped over a pallet and hurt himself. The co-worker

indicated that he did not notice any limping and saw no indication of an injury. When the worker was filling a claim, he forgot that he had hurt himself Friday and the co-worker had to actually remind him about his report. It was not an official injury claim, however he did mention it on Saturday, not Friday.

A WCB medical advisor reviewed the worker's claim on October 26, 2011 and answered questions posed by a WCB adjudicator with respect to the worker's medical condition. The medical advisor stated:

  1. The most likely diagnosis was left lumbar radiculopathy. This was most consistent with the majority of the medical reporting.
  2. This condition may arise idiopathically. If actions are implicated in causation, these most often involve lifting and twisting with the trunk. Symptoms tend to be maximal for several days and then gradually resolve over the course of approximately 6 weeks.

By letter dated October 27, 2011, the worker was advised that the WCB was not accepting his claim for compensation. The adjudicator stated that based on the evidence on file, she could not establish a relationship between his diagnosed condition and an accident at work as defined in section 1(1). The adjudicator stated: "In particular, there were several inconsistencies in the mechanism of injury reported, you were unable to recall on more than one occasion how you injured yourself and delays in reporting the injury to your employer. Based on this information, we are unable to establish that the injury occurred on October 7, 2011 as described."

On April 17, 2012 a worker advisor, acting on behalf of the worker, appealed the October 27, 2011 decision to Review Office. The worker advisor noted that in a medical report dated February 28, 2012, an orthopaedic surgeon indicated that the worker reported his workplace accident as tripping over a skid, landed on his hands resulting in pain radiating into the left calf. It was the surgeon's medical opinion that the worker had pre-existing degenerative changes in his lumbosacral spine and lumbar discs and that the incident at work aggravated the worker's lumbosacral spine region. The worker advisor also was of the position that the evidence on file supported that there was no delay in reporting to the employer. She noted that the employer confirmed that the worker reported the accident on October 12, 2011 which was well within the 30 day requirement.

On April 18, 2012, Review Office referred the file back to Rehabilitation and Compensation Services to reconsider its previous decision based on the new medical information and the issues raised in the appeal from the worker advisor.

On May 1, 2012, the worker was advised that the WCB was accepting his claim for the accident he described to have occurred on October 7, 2011; however, no responsibility would be accepted for wage loss benefits or medical treatment costs beyond October 7, 2011. The adjudicator stated: "While an accident occurring on October 7/11 has been confirmed; it is the opinion of Rehabilitation and Compensation Services, there is insufficient information to establish a direct relationship between your ongoing difficulties and diagnosed condition given the mechanism of injury provided."

On June 21, 2012, the worker advisor appealed the May 1, 2012 decision to Review Office. The worker advisor noted that there was consensus between the WCB medical advisor and treating orthopaedic surgeon that the worker's personal injury was lumbar radiculopathy. With the treating surgeon supporting a relationship between the worker's ongoing difficulties and his workplace incident, the medical evidence established a relationship for benefits to be payable.

In a decision dated August 20, 2012, Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits after October 7, 2011. Review Office referred to file evidence to support that: "Between the trip and fall at work on October 7, 2011 and the lower back issues [the worker]is claiming, there is no evidence to suggest a correlation exists. The Review Office cannot find any back related issues arose "out of and in the course of employment." The only confirmed "accident" as determined by the board is that involving a lower leg injury." On August 27, 2012, the worker 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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker's injury of lumbar radiculopathy was related to his workplace accident of October 7, 2011 and that benefits ought to be payable. The lumbar injury was not a new health-related issue as the medical evidence supported ongoing medical findings consistent with a sciatic type injury as a result of the workplace accident. The onset of the left-sided sciatic symptoms occurred the very next morning with no intervening incident which could have caused a left lumbar radiculopathy.

Reports from the worker's treating orthopaedic surgeon as well as the WCB orthopaedic consultant were relied upon as support for this position. The mechanism of injury of a sudden trip and fall over a pallet could cause disabling left-sided sciatica and there was confirmation from a co-worker that the worker reported this type of a fall. Although the worker may have had a pre-existing low back condition, the accident caused an aggravation to the lumbosacral spine region which produced the symptoms which are compatible with left sciatica. It was therefore submitted that the worker was entitled to wage loss and medical aid benefits after October 7, 2011.

Employer’s position:

A branch manager represented the employer at the hearing. The employer took no position on the appeal and indicated that he was attending the hearing to assist in providing information regarding the accident, if necessary. The branch manager was not on floor when the accident happened, but he was told that the staff were working on the Friday and no one knew that the worker had fallen. When the worker came in to work later, he stated that he had pain in his leg and did not know why. After a conversation with a co-worker, he realized it might have happened when he tripped on the skid. The worker was unable to continue his duties and informed the operations manager that he could not work and had to go home. The employer subsequently offered the worker light duties, but was informed that the worker could not do them. The worker's position was eventually filled as the employer needed to move forward.

Analysis:

The WCB has accepted that the worker suffered an accident while he was at work on October 7, 2011. It has determined, however, that the accident did not result in any entitlement to healthcare or wage loss benefits. The question for this panel to decide is the worker's entitlement to benefits as a result of the October 7, 2011 accident.

In order for the appeal to succeed, the panel must find that the worker's compensable injury either required medical aid or caused him to suffer a loss of earning capacity beyond October 7, 2011. On a balance of probabilities, we are able to make that finding.

After considering the evidence as a whole, the panel finds that the worker suffered a left lumbar radiculopathy as a result of his fall at work on October 7, 2011. At the hearing, the worker described the mechanism of injury. He indicated that he clipped the corner of a skid with his foot which caused him to trip and fall forward. As he fell, he twisted sideways to the left and landed on both of his hands in a "push-up" position. No other part of his body hit the ground. The panel finds that the mechanism of injury described by the worker involves force and twisting and is consistent with causation of a lumbar radiculopathy.

It is notable that in the mechanism of injury described by the worker, there was no contact with or impact on his shin. The initial diagnosis proposed in the doctor's first report of October 11, 2011 was left shin splints, and possible stress fracture, to be ruled out. Given the mechanism of injury described by the worker, the panel does not accept these diagnoses. The doctor's first report does report: "pain from mid shin shooting to ankle and to buttock", which are symptoms consistent with a lumbar radiculopathy. At the next doctor's appointment on October 17, 2011, the subjective complaints were reported as pain in left buttock to calf muscle, worse when sitting and standing, and increased weakness. Objective findings included slightly reduced range of motion, tender left hamstring, calf muscle and buttocks, and most importantly, a positive left straight leg raise test. Although the proposed diagnosis at the second visit was a left hamstring strain, the panel finds that these findings would also be consistent with a lumbar radiculopathy.

When asked about his left leg symptoms, the worker's evidence was that he first noticed them when he woke up the next day on October 8, 2011. He described the leg pain as shooting down the back of his leg through his calf muscle. There was also pain in the front of his leg on the shin. His evidence was that he went to work that day and told his supervisor "J" about the pain in his leg. Claim notes on the WCB file indicate that J was able to confirm that the worker mentioned having a sore leg that day.

On October 26, 2011, the WCB medical advisor reviewed the claim and his opinion was that a diagnosis of left lumbar radiculopathy was most consistent with the majority of the medical reporting. The treating orthopaedic surgeon also supported a work-related aggravation of the lumbosacral spine region producing symptoms compatible with left sciatica. The panel accepts these opinions and we therefore conclude that the compensable diagnosis resulting from the work-related accident of October 7, 2011 was a left lumbar radiculopathy.

As the left lumbar radiculopathy condition continued beyond October 7, 2011, the panel finds that the worker is entitled to wage loss and medical aid benefits beyond that date. We leave determination of entitlement to specific benefits arising from this compensable diagnosis to be further adjudicated by the WCB.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of December, 2012

Back