Decision #121/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on June 11, 2018 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable, as indicated below.
Background
On June 1, 2017, the worker filed a Worker Incident Report for an injury he sustained in a workplace accident on May 24, 2017. The worker described the injury as follows:
After packing a box with merchandise, I was carrying it to a skid. As I turned with the box in my hand I twisted my right knee. The pain travelled from my right knee down to my right foot. I also had some pain in my lower back area. I could not put any pressure on my knee. I was not able to go down the stairs. Box weighed approx 30 lbs. I did not finish my shift.
The worker saw a doctor on May 24, 2017, who diagnosed him with "mechanical lower back pain" and referred him for an MRI. The doctor also provided the worker with a doctor's note to be off work from May 24 to May 26, 2017.
On June 2, 2017, the employer filed an Employer's Accident Report in which they stated that the workplace incident had not been reported to them.
In a discussion with the WCB on June 5, 2017, the worker advised the WCB that he hurt his right knee carrying boxes and that his back was hurting as well.
On June 9, 2017, Compensation Services advised the worker that his claim was not acceptable. Compensation Services stated that based on the information obtained, they could not establish a relationship between his right knee and back difficulties and an accident arising out of and in the course of his employment.
On August 30, 2017, the worker requested that Review Office reconsider the Compensation Services decision. The worker provided a submission, including copies of medical records and employment income information, to support his claim that he had injured his right knee and back performing his job duties.
On October 16, 2017, Review Office advised the worker that his claim was not acceptable. Review Office noted that the May 24, 2017 report from the worker's doctor indicated that the worker had low back pain for approximately two weeks. Review Office could find no correlation between the worker's back pain and the workplace accident.
Review Office further noted that the May 24, 2017 doctor's report made no reference to a right knee injury, and his office had confirmed that the worker was not seen for a right knee injury. It was noted that the worker contacted his doctor's office on June 2, 2017, requesting an MRI for his right knee. Review Office found no medical evidence to support that either a back or a right knee injury occurred on May 24, 2017, as described by the worker.
On December 17, 2017, the worker appealed the Review Office 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.
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 provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Where such an injury has been established, the worker is entitled to the benefits provided under the Act.
Worker's Position
The worker was self-represented and provided several written submissions in advance of the hearing. The worker made a presentation at the hearing, and responded to questions from the panel with the assistance of an interpreter.
The worker’s position was that he suffered an injury to his right knee and back in the performance of his job duties, and his claim is therefore acceptable.
The worker said his injury occurred during the morning of May 24, 2017 while he was performing the tasks he had been assigned for that day. He experienced pain to his back and right knee, and radiating down his right foot, which was so intense that he was unable to continue working. He reported the injury to his supervisor, then left work and went straight to his doctor. His doctor provided him with a note to be off work, and ordered an MRI.
The worker said that he took the doctor's note to his employer the next morning, but the employer denied that the accident happened and insisted that he sign a letter quitting his employment.
The worker said that the work he was doing at the time of his injury was very heavy. His job had steadily changed such that he was having to lift heavier and heavier items. He had found the changes difficult and had raised this with his employer, but the employer had refused to do anything about it. The worker said that two weeks before the accident he had taken steps to protect himself; he had started wearing support braces on his knees, and a colleague had made him a belt to support his back, which he always wore while he was working.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment.
Based on our review of all of the evidence and submissions, on file and as presented at the hearing, the panel is satisfied that the worker suffered an acute lower back injury which arose out of and in the course of his employment on May 24, 2017. The panel is further satisfied that this injury was of a relatively minor nature and likely to be of short duration.
The evidence indicates that the worker immediately reported his injury to his supervisor, and advised him that he was unable to continue with his work and needed to see his doctor. The worker left work and went to see his family doctor that same day. The doctor provided a diagnosis of "mechanical lower back pain" and requested an MRI of his lumbar spine.
The panel is satisfied that this diagnosis of mechanical lower back pain is consistent with the mechanism of injury of twisting while lifting and carrying a heavy box, as indicated in the Worker Incident Report and described by the worker at the hearing.
The panel recognizes that the worker's doctor noted in his chart notes for May 24, 2017 that the worker had reported experiencing lower back pain for two weeks. The panel places no weight on that notation. The panel notes that the worker has consistently indicated that this information was not correct and did not make sense, as he could not have continued working and lifting boxes for two weeks with that pain. He pointed out that chart notes from his doctor for a May 11, 2017 visit, less than two weeks before his injury, refer to an unrelated complaint of a headache and make no mention of any low back difficulties.
On May 24, 2017, the family doctor provided the worker with a note to be off work from May 24 to May 26, 2017. The evidence indicates that the worker did not seek medical attention between May 24, 2017 and August 8, 2017, when the MRI of his lumbar spine was performed. It is the panel's understanding that the August 8, 2017 MRI report refers to various degenerative findings and is otherwise essentially normal.
The panel also notes that the worker stated at the hearing that he did "nothing" once he was off work. He said that he went on a driving holiday by himself outside the province for almost a month. He also said that the doctor did not provide him with any medication or indicate anything that he should or should not be doing at that time.
The panel is further satisfied that the evidence does not support that the worker suffered a right knee injury as a result of his workplace accident. In this regard, the panel notes that the doctor's chart notes on May 24, 2017 make no reference to the worker's right knee or a knee injury. A Claim Note on file dated June 9, 2017, further indicates that the adjudicator spoke to the receptionist at the doctor's office who confirmed that the worker was seen on May 24, 2017 and there was no mention of any right knee difficulties or injury at work. She advised that the worker called into the clinic on June 2, 2017 asking for an MRI on his right knee, as he had some pain, and that he was never seen by the doctor with respect to his right knee.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a minor mechanical lower back injury by accident arising out of and in the course of his employment on May 24, 2017. The worker's claim for a lower back injury is therefore acceptable.
The worker's appeal is allowed, in part.
Panel Members
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of August, 2018