Decision #159/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for hip difficulties was not acceptable. A hearing was held on October 19, 2017 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
On May 22, 2007, the worker filed a claim with the WCB for injury to his hips that he attributed to his job duties as a Head Mill Operator. The worker said the injury date was January 1, 2004 and that he reported it to his employer on November 1, 2006 as "he wanted to work through it and didn't want to be on WCB…" The worker described his job duties as follows:
I would go up and down the ladder to check grain bins and clean elevators. I would do maintenance on them. I would go up and down a ladder probably 100 times if not more per day. The ladders are approx. 40 feet high. There would be a lot of stairs on the ladders. One bldg. was 60 feet tall and had lots of stairs. I was dry inside and hot in summer but would be wet and cold outside in the winter. I would wear Adidas, Reebok, footwear at work. It wasn't mandatory to wear steel toes. I was working 8 hrs per day, 5 days per week.
The Employer Injury Report stated that the worker did not report an injury regarding his hips. It was stated that they were closed on the date of accident, January 1, 2004.
On June 1, 2007, a WCB adjudicator contacted the worker to gather additional information regarding his exact job duties, details of when his hip condition developed and the medical treatment he sought for his hip complaints.
On June 7, 2007, an employer representative advised the WCB that the worker never complained to him about his hips.
In a decision dated June 11, 2007, Rehabilitation and Compensation Services determined that the claim was not compensable as there was not enough evidence to conclude that the worker's hip difficulties were related to his workplace activities. The adjudicator referred to medical reports on file dated May 30, 2007 and November 1, 2006 which indicated no specific diagnosis in relation to the worker's hip and that the worker's hip pain was possibly coming from his low back pain. The adjudicator noted that the worker did not report an injury to his employer and the fact that the employer was unaware of any isolated incident(s) or ongoing problems. In late June 2007, the worker appealed the decision that his claim was not acceptable.
In a second decision dated July 27, 2007, Rehabilitation and Compensation Services confirmed that the claim was not acceptable as there was not enough evidence to conclude that the worker's hip difficulties were related to his workplace activities.
The adjudicator noted in the decision that the worker's supervisor only became aware of the worker's hip difficulties in the last six to twelve months; that the worker had not been in their employ for the past few years; and at no time did the worker advise his supervisor of any hip difficulties in the course of his employment. The adjudicator also referred to evidence on file to support that the worker was seen for medical treatment in 2005 and 2006 but it was not in relation to hip difficulties. On September 21, 2007, the worker appealed the decision to Review Office.
On September 27, 2007, Review Office determined that the claim was not acceptable as it was unable to find a relationship between the worker's reported hip complaints and his work activities. Review Office was of the view that the requirements under subsection 4(1) of the Act could not be established. On May 26, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's 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.
Accident is defined in subsection 1(1) of the Act, which provides as follows:
"accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker;
(b) any
(i) event arising out of, and in the course of employment, or
(ii) thing that is done and doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured;
Worker's Position
The worker was self-represented and participated in the hearing via teleconference.
In response to the panel indicating that the issue before it was whether his claim for bilateral hip injuries was acceptable, the worker advised that his claim is not about his hips, rather it's about his low back. He explained that he initially had pain in his hips which he thought was caused by his employment, particularly climbing ladders. He said that he saw a number of physicians and was told his problem was not in his hips rather it was a low back problem. He was told the pain radiated from the low back.
The worker referred to diagnostic tests which indicated that he had spondylolisthesis of the L5 on S1 and spondylolysis of the L5. He referred to a CT report which was not on the file. He advised that he was examined by an orthopedic surgeon in 2006. He said a copy of this report was on his claim file.
In answer to questions the worker advised that:
• he became aware of a left leg problem in March 2003
• he saw a chiropractor but the chiropractor never diagnosed his condition
• he had surgery on his back in Europe
• he thought that because the pain was in the hip area it was a hip problem
• there should be a CT report dated December 2004 on the file
• the CT report referred to a Spondylolisthesis
• the reports on his file referred to degeneration that is likely a long standing feature
• it's extremely painful
Employer's Position
The worker's employer of record did not participate in the appeal.
Analysis
The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was not able to make this finding.
The panel notes that the file was established as an injury to the worker's hips. The worker's incident report notes the area of injury to be the hips. The report indicates that:
I think this injury is from going up and down ladders at work. I was always on my feet and walking. I was walking on wood, cement and steel.
The worker's letter to the Review Office received on September 21, 2007 indicates that his problem is with hips and that it is work related. The worker noted that his "hips pop a lot."
An orthopedic specialist indicated that the worker was examined on November 1, 2006. He noted good range of motion in both hip joints, however, the right hip was slightly restricted. Other medical information on file does not confirm a hip injury.
At the hearing he advised that he would like the panel to address his low back injury. The panel finds that the worker's low back injury has not been adjudicated on this claim and therefore the panel is not able to make a decision with respect to the compensability of his low back injury. It remains open to the worker to file a claim for a low back injury with the WCB.
The panel restricted its consideration to whether the worker's claim for injury to his hips is acceptable. The panel finds that the claim for hip injuries is not acceptable. The worker provided no argument on this issue at the hearing. He advised that the problem is his back and that pain from his back radiates to his hips.
The panel was not able to find on a balance of probabilities that the worker sustained an injury to his hips.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 21st day of November, 2017