Decision #35/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he did not suffer an accident at work. A hearing was held on January 9, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 3, 2010, the worker filed a claim with the WCB for a low back injury that occurred on April 19, 2010. The worker described his injury as follows:

I was reaching for a bucket of soap powder. The bucket was on a pallet that was approximately 6 feet high. The bucket weighed approximately 25 pounds. I was grabbing the bucket with both hands. As I was bringing it down, it jerked me and I felt a sudden sharp pain in my low back. I continued working but with pain.

The worker reported that he sought medical attention for his back injury on May 3, 2010 and again on May 31, 2010. He delayed in seeking medical attention because he "thought it was something that would work its way out."

On June 9, 2010, the employer's representative objected to the acceptance of the worker's claim based on the following points:

  • the worker delayed in reporting his claimed injury until a week later;
  • the worker delayed two weeks in seeking medical attention;
  • the worker delayed six weeks in reporting his claimed injury to the WCB;
  • the worker regularly lifted items weighing 50 pounds or more as part of his regular duties; and
  • the worker had not provided medical documentation to his employer.

A doctor's first report dated June 3, 2010 showed that the worker was seen for treatment on May 3, 2010 with the following description of injury: "Low back pain started while lifting pails of soap piled high on a pallet." The diagnosis was a lumbar disc protrusion.

On June 4, 2010, the worker told a WCB adjudicator that the accident occurred in the middle of his shift on April 19, 2010. He continued to work at his full regular duties following the accident. The worker said he complained to his supervisor that his back was sore from the accident. He did not seek immediate medical treatment as he thought the pain would go away with time. He was fine prior to his shift on April 19, 2010 and he had no prior back problems.

The WCB adjudicator spoke with the worker's supervisor on June 22, 2010. He confirmed that the worker told him that his back was sore but the worker did not say what it was related to. The worker said it was from "getting old." The worker did not report that he hurt his back at work.

On June 22, 2010, the worker was advised that the WCB was unable to establish a relationship between his current diagnosis and an accident as defined in subsection 1(1) of the Act. The adjudicator based her decision on the worker's delay in reporting an accident, the delay in seeking medical treatment, and the information obtained from the worker's supervisor that the worker did not report an accident on the day it occurred.

On July 2, 2010, the worker appealed the above decision to Review Office. The worker reported that he tweaked his low back on April 27, 2010 and that he reported it to his supervisor on the same day. Between April 29 and May 17 he took pain killers. He said he continued to work until May 13 when the pain in his back became unbearable, and he phoned his doctor to make an appointment. On May 13, he told his new supervisor as the other supervisor had quit.

A co-worker's statement addressed to Review Office stated:

I [name] confirm that [worker] did indeed report his back injury to our old supervisor [name]. Some of the skids that [the worker] would have to move would weigh up to at least 1000 lbs. and lots of the time are stacked 7 ft. high with the heavy items on the top…"

On August 17, 2010, the worker's union representative advised Review Office that the worker wished to withdraw his appeal until the union could provide a submission on his behalf.

In a submission to Review Office dated August 30, 2010, the worker's union representative submitted that the worker's claim was not accepted by the WCB as the worker delayed in reporting to his employer. The representative noted that the worker lifted a pail of laundry detergent on April 20, 2010 and felt pain in his back. The incident was reported to the worker's supervisor on the same day. He noted that the worker completed the shift and also worked the following shift. He was not scheduled to work for the next five days. When he returned to his shift on April 26, he again informed the employer of the issues he was having with his back. The date was recorded on the employer's Form No. 2 dated June 9, 2010. The union representative indicated that the worker maintained his position that he did report to the employer and had a witness to this fact. The worker stated that his supervisor filled in a report at the time it was reported however the report was not on the WCB's file.

The union representative also indicated that the worker's claim was denied in part on the delay in seeking medical attention. He indicated that such delays were not uncommon. He noted that the worker felt that he would be feeling better as time passed and that he sought medical assistance only after feeling pain radiating into his legs. Reference was made to the initial doctor's report that the pain arose while lifting a pail of detergent from a pallet and that this was consistent with the report to the employer and the WCB.

On October 29, 2010, the employer's representative submitted to Review Office that while an accident had been described as occurring on April 19, 2010, there was no evidence available that supported that it did indeed occur as described. There was a one week delay in reporting the accident to the employer and there was a two week delay in seeking medical attention. It was felt that the decision of June 22, 2010 denying entitlement for an accident was appropriate.

On November 4, 2010, Review Office determined that there was insufficient evidence to support that an "accident" occurred arising out of and in the course of the worker's employment on April 20, 2010 based on the following factors:

  • there was no written report by the supervisor completed on April 20 to confirm that the worker was injured at work.
  • the worker continued to work his regular duties on and after April 20, 2010 and he did not seek medical assistance until May 3, 2010.
  • on September 21, 2010 the attending specialist stated: "My impression is that (the worker) has been suffering predominantly from a chronic mechanical low back pain syndrome. This may be related to the underlying pathology noted on the CT scan."

On October 1, 2012, a worker advisor, acting on the worker's behalf, appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional information from the worker's treating physician. A report from the physician was later received and was forwarded to the interested parties for comment. On February 12, 2013, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

This appeal deals with claims acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s back injury arose out of and in the course of his employment.

Worker's Position

The worker was represented by a worker advisor who made a presentation on the worker's behalf. The worker answered questions from his representative and the panel.

The worker told the panel that he was working part-time for the employer. He worked two shifts a week at night. His duties involved stocking shelves. He said that he was injured when he reached up to the top of a pallet and grabbed a bucket of soap. He estimated that the bucket weighed about 20 kilograms. He advised that he felt pain in the center of his back by the beltline. He said the pain was immediate and lasted the entire night.

The worker advised that he reported the incident to his supervisor and a co-worker. He worked the next shift and was then put on light duties.

The worker advised that he had an MRI in October 2010 and had another one on January 4, 2013. He advised that he has not returned to work.

The worker advisor noted that the employer acknowledged that the worker reported his injury to his supervisor on April 27, 2010, which was within the 30 day reporting period set out in the Act.

In answer to a question, the representative advised that:

"I have no medical evidence to confirm whether it was an aggravation or an enhancement, but that it, the possibility of the mechanics of what [the worker] has described could have caused the pre-existing condition to become symptomatic because [the worker] had said earlier that he… had no symptoms. He had no back symptoms prior to that incident."

In response to the information received from the treating physician, the representative submitted that the following evidence supports acceptance of the worker's claim:

  • co-worker statement supports that worker reported to his supervisor.
  • mechanism of injury is consistent with diagnosis of L4-L5 disc herniation.
  • clinical findings of low back and radicular symptoms at the initial May 3, 2010 appointment and following appointments with treating physician correlate with October 30, 2010 MRI which revealed a disc herniation with compression on the L5 nerve root.
  • reduction in size of the L4-L5 disc herniation on January 4, 2013 demonstrates probable improvement from an acute injury that occurred at the L4-L5 level.

Employer's Position

The employer was represented by an advocate who participated by teleconference.

The representative submitted that the claim is not acceptable. She said there are concerns about the proof that an accident occurred, including a delay in reporting and seeking medical attention. She noted the employer's information indicates the worker reported the incident approximately one week after it is alleged to have occurred. She also noted that the worker delayed in seeking medical attention and continued to work his regular duties from April 19 to May 13, 2010.

The representative advised that the employer has concerns about the lack of compatibility between the accident history and diagnosed condition. She noted that a CT scan and an x-ray refer to degenerative conditions. She submitted that the Review Officer’s November 19, 2010 decision was correct and should be upheld.

The employer representative made a further submission upon receipt of the treating physician's January 25, 2013 report which was requested by the panel. She expressed the view that the treating physician's information does not provide any further insight into the appeal. She noted the pain specialist's comments and asked that the panel place greater emphasis on his information as he is an in expert in this field. She said there is no objective evidence that the worker's disc herniation was the result of a workplace injury but there is objective evidence that he suffers from degenerative conditions. She submitted that the worker's back pain is likely the result of his degenerative disc disease.

Analysis

The issue before the panel is whether the worker’s lower back injury arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the worker injured his back at work or aggravated his back at work. The panel finds, on a balance of probabilities, that the worker's claim is acceptable and specifically finds that the worker sustained a L4-L5 disc herniation at work on April 19, 2010.

In reaching this conclusion the panel relies upon the following information:

· the accident description provided to the treating physician is consistent with the description provided by the worker to the employer, the WCB and the panel.

· the doctor's first report noted symptoms which are consistent with the mechanism of injury described by the worker.

· the co-worker's note confirms that the worker reported an accident to the supervisor.

· the worker's evidence at the hearing, including his description of the event and the symptoms.

At the hearing, the worker advised that his supervisor assigned light duties after he reported the injury. This helps to explain how the worker was able to continue work after the accident. Accordingly, the panel attaches no negative inference to the fact that the worker continued to work.

The panel notes that the worker's diagnosed medical condition is a disc herniation as confirmed by the following diagnostic tests:

· a May 31 2010 CT scan which shows "At L4-L5 level there is posterior disc protrusion slightly more prominent on the left."

· an October 30, 2010 MRI report which notes that "At L4-L5 there is a moderate central disc protrusion, broad based and slightly larger on the left. Both L5 nerve roots may be compromised."

· a January 4, 2013 CT scan report which notes "There is a tiny disc herniation at L4-L5, much smaller than the previously identified disc herniation seen at this level on the previous CT examination."

The panel carefully reviewed the mechanism of injury described by the worker and finds that reaching up for the bucket of soap, which weighed approximately 25 pounds, and bringing it down is consistent with the onset of acute disc herniation on an already degenerative lumbar spine. The panel accepts the worker's evidence that he was able to work his regular shifts prior to the accident but that after the accident he had to switch to light duties and then had to stop working. The panel finds that the worker sustained a small L4-L5 disc herniation as noted in the May 2010 CT scan. The panel notes that the disc herniation had resolved as evidenced by the decrease in size noted in the January 2013 CT scan report. The panel also notes that as of June 12, 2012 the worker denied any pain down his legs as reported by his treating physician.

The panel notes the worker's evidence that he continues to have back pain. Given the evidence of degeneration in his back, and the evidence that the degeneration is worsening, as noted in the January 2013 CT scan report, such symptoms are not unexpected. The panel finds that the pre-existing degenerative condition was not aggravated or enhanced by the compensable injury.

The worker's claim is accepted and his appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of March, 2013

Back