The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim was not acceptable. A hearing was held on November 28, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 28, 2018, the worker filed a Worker Incident Report with the WCB. The worker reported that on March 22, 2018, she slipped on ice as she was walking through the employer's parking lot on her way to work, fell forward and landed on her right knee and both hands, injuring her right leg, hip and lower back. She noted that the top of her right leg felt sore approximately 45 minutes later, there was no swelling, and she finished her shift that day. She noted within a day her lower back and right hip started feeling stiff and sore.

On April 24, 2018, the worker saw her family physician, who diagnosed her with back pain. The physician prescribed anti-inflammatory medication and referred her for an x-ray of the lumbosacral spine. The x ray, which was taken on April 25, 2018, noted mid and lower lumbar facet osteoarthritis, with a minor slip of L4 on L5 and mild endplate spurring throughout the lumbar spine. At a follow-up appointment on May 1, 2018, following his review of the x-ray, the worker's family physician diagnosed her with mechanical back ache and osteoarthritis lumbosacral spine and recommended physiotherapy.

The worker attended an initial appointment with a chiropractor on May 28, 2018, where she reported low back pain going into her right hip and lateral leg. The chiropractor diagnosed the worker with a lumbosacral disc irritation and right hip strain/sprain, and referred the worker back to her family physician for an x-ray of her right hip. On May 31, 2018, at a follow-up appointment with her treating family physician, the worker reported that she could not get out of bed on May 27, 2018 because of pain in her lower back and right buttock that radiated to her right leg in front all the way down to her foot. The physician diagnosed the worker with back pain and L4/5 radiculopathy and recommended an MRI.

In a discussion with her WCB adjudicator on June 4, 2018, the worker confirmed how the accident occurred, noting that she fell forward on her right knee, then left knee and then both hands. The worker reported that her right thigh was very sore and her lower back was a little sore, and that her right leg and hip were causing the biggest issues. The worker noted that she had missed some time from work for medical appointments but continued to work her regular duties. In a subsequent discussion with her WCB adjudicator on June 5, 2018, the worker provided further information with respect to the progression of her symptoms.

By letter dated June 7, 2018, the WCB's Compensation Services advised the worker that her claim was not acceptable as they were unable to establish that the worker sustained an injury on March 23, 2018. Compensation Services noted that the employer had provided the WCB with a copy of the green card filled out by the worker on that date which did not list any resulting injuries from the fall, that the worker delayed seeking medical treatment until April 24, 2018, and that x-rays and the May 1, 2018 physician's report indicated osteoarthritis of the lumbosacral spine, which is a pre-existing degenerative condition. It was further noted that the chiropractor's first report of May 28, 2018, nine weeks after the fall, indicated a lumbosacral disc irritation and right hip strain/sprain, which would have most likely resolved within two to six weeks of the accident.

On June 28, 2018, the worker submitted further medical information to the WCB, including a June 23, 2018 report from a sports medicine physician who noted a diagnosis of right sided radiculopathy, and a June 27, 2018 physiotherapist's report from a June 12, 2018 assessment which noted a diagnosis of "…mechanical lower back pain with referral into leg and a right psoas strain." On July 11, 2018, Compensation Services advised the worker that the submitted information had been reviewed but there was no change to the June 7, 2018 decision that the worker's claim was not acceptable.

On July 24, 2018, the worker requested that Review Office reconsider Compensation Services' decision, noting her disagreement with the June 7 and July 11, 2018 decisions. The worker indicated in her submission that she first tried to self-treat her injuries then made an appointment with her family physician, which she subsequently had to change to a later date due to illness. She further noted that she continued to seek treatment after her initial appointment with her doctor on April 24, 2018, and was still undergoing treatment for her symptoms.

On September 18, 2018, Review Office determined that the worker's claim was not acceptable. Review Office noted that while the information on the worker's file indicated she may have suffered a fall on March 23, 2018, they were unable to establish that the worker suffered an injury as a result of the fall due to the lack of medical evidence in close proximity to that date. Review Office found that the worker's difficulties would have been more acute within a shorter period of time after the fall rather than a slow progressive development of issues over the following weeks as reported by the worker. Issues involving the worker's lower back were not indicated until a month later when the worker saw her family physician. Review Office noted that while the worker temporally related the development of her lower back issues to the March 23, 2018 fall, they were unable to support such a relationship given her physician's diagnosis on April 24, 2018 of mechanical lower back pain, which is not an acute condition or considered to be related to her reported mechanism of injury.

On December 20, 2018, the worker's representative submitted a co-worker's statement in support of the worker's claim, a March 31, 2018 report from the worker's massage therapist noting the worker's complaint of low back pain and right knee, quad and neck, and copies of the worker's phone records noting calls by the worker to her massage therapist and her family physician, and requested that Review Office reconsider their September 18, 2018 decision.

On January 16, 2019, Review Office advised the worker that the additional information had been reviewed but the September 18, 2018 decision remained unchanged. Review Office noted that the co-worker's statement indicated the worker reported feeling fine after the March 23, 2018 incident and the report from the worker's massage therapist indicated the March 31, 2018 treatment was focused on lower back pain and chronic neck pain.

On May 3, 2019, the worker's representative 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) (the definition of "accident") 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 a personal injury by accident arising 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.

Worker's Position

The worker was represented by a worker advisor and was accompanied by her spouse at the hearing. The worker's representative provided a written submission in advance of the hearing, and made an oral presentation to the panel, a written copy of which was also provided. The worker responded to questions from her representative and from the panel.

The worker's position was that there was sufficient evidence to establish that she suffered an injury or injuries from an accident arising out of and in the course of her employment, and her claim should be accepted.

The worker's representative submitted that the evidence clearly shows that the worker slipped on an icy surface while walking towards her workplace on March 23, 2018, which caused her to fall to the ground. In their view, this occurrence constituted a chance event, occasioned by a physical cause, which arose out of and in the course of the worker's employment.

It was submitted that this event also caused an injury or injuries to the worker's lower back, right hip and leg. The representative noted that the worker reported she felt stiff and her right thigh was hurting later that day, and submitted that this same-day onset of symptoms was compatible with the incident as described. The representative further noted that a physician with an interest in occupational health medicine who interviewed the worker and had access to the file information commented in his April 10, 2019 report, which was provided in advance of the hearing, that a causal relationship likely existed between the workplace incident and the worker's symptoms.

The representative noted that when seeking medical attention, the worker reported the same accident date and mechanism of injury to all her healthcare providers, and never wavered in her belief that the workplace accident caused her injury or injuries.

The worker's representative further noted that the worker's telephone records which were also provided in advance of the hearing, indicate she made four telephone calls the morning of the incident to the massage therapy clinic she subsequently attended. The representative submitted that this supported that the worker was concerned enough about the workplace incident to call within perhaps minutes of her fall to book a massage appointment. The records also show a number of calls to the worker's family physician starting March 28, 2018 and in early April, which indicated, in their submission, that her injury or injuries were not improving as she hoped.

The worker's representative noted that statements from two co-workers confirm they were aware of the worker's injury on her return to work following a scheduled week off work and corroborate that she remained symptomatic up to her April 24, 2018 appointment with her doctor.

In conclusion, it was submitted that based on the evidence, the worker experienced an accident within the meaning of the Act and her claim should be accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment. For the reasons that follow, the panel is unable to make that finding.

Both the worker's representative and the panel questioned the worker at length at the hearing with respect to what occurred at or around the time of the March 2018 workplace incident. Based on the mechanism of injury, as described on file and at the hearing, the panel is satisfied that the worker experienced a slip and fall event arising out of and in the course of her employment on March 23, 2018. The panel is unable to find, however, that the worker was injured as a result of that event.

The panel finds that there was a delay in the worker's seeking medical assistance and reporting a workplace injury to the WCB, which makes it more difficult to establish such an injury. While the worker advised the employer on March 23, 2018 that she had fallen, she did not identify any injury in the incident report she completed at that time, but rather placed a question mark in the box marked "Resulting injury." The panel notes that this is consistent with the worker's evidence at the hearing that she was not feeling any different at that time from before her fall. The worker attended for massage therapy on March 31, 2018, but did not see a doctor until April 24, 2018, or approximately one month after her fall, and did not file a claim with the WCB until May 28, 2018, more than two months after her fall.

The panel finds that the evidence shows the worker's symptoms and pain gradually worsened over time. In this regard, the panel notes that a memorandum on file of a telephone conversation between the worker and her WCB adjudicator on June 5, 2018 regarding the progression of her symptoms indicates that the worker described her pain as 2 or 3 out of 10 on March 23, 2018 through to at least April 9, 2018, then 4 or 5 out of 10 at the end of April and into May 2018, 8 or 9 out of 10 when she awoke on May 27, 2018, and 10 out of 10 on June 5, 2018. In response to questions regarding this change in her symptoms, the worker said that she was not really doing physical activities during this period of time or doing anything different which would explain this worsening of her symptoms in the weeks and months following her fall. Based on the available evidence, the panel is unable to account for this worsening of the worker's symptoms as being related to the March 23, 2018 workplace event.

The available medical information shows that a number of different and inconsistent diagnoses were proposed by the worker's various healthcare providers. The panel is not satisfied, based on our review of that information, that these diagnoses were related to or consistent with the March 23, 2018 workplace event or mechanism of injury. When questioned as to which diagnoses they were relying on, the worker's representative advised that they did not want to get too hung up on diagnoses as a specific diagnosis is not necessary to determine whether an accident or injury happened. The representative indicated that they were relying in particular on the April 10, 2019 report of the physician with an interest in occupational health medicine, and were certainly focusing on a right hip injury as well as a lower back injury, including issues with pain going into the worker's right buttock area and down into her thigh.

Based on our review and consideration of the available information, the panel is not satisfied that a low back injury or condition is related to the workplace event. The panel places weight on the April 25, 2018 x-ray which identified osteoarthritis and degenerative changes in the worker lumbar spine and the subsequent diagnosis by the worker's family physician of osteoarthritis in the lumbosacral spine. The panel notes that in his April 10, 2019 report, the physician with an interest in occupational health medicine also opined that the pre-existing changes noted on the April 25, 2018 back x-ray were "not suggestive of acute back injury. Nor is the mechanism of injury - no excessive loads, overstretching or twisting forces were placed on the lower spine."

The panel is further unable to find that the worker experienced a right hip injury as a result of her March 23, 2018 workplace event. While the physician with an interest in occupational health medicine opined that his "…clinical findings indicate right hip muscle strain and irritation the onset of which was the slip and fall injury and the evolving pattern of symptomology in the weeks and months that followed," the panel is unable to accept that conclusion. The panel notes that the physician first saw the worker on March 13, 2019, almost one year after the workplace incident, and issues relating to a right hip injury were not raised until the May 28, 2018 report from the chiropractor, more than two months after the worker's fall.

Further, although the physician refers to and relies on the worker's pain symptoms having increased to 4 or 5 out of 10 by the second week after the fall, the panel finds that this is not consistent with the worker's advice to the WCB on June 5, 2018 as indicated above, where such an increase was not noted until approximately five weeks after her fall. The physician also described a "suspected" mechanism of injury, including that the fall "…caused her hips, trunk and upper body to twist to the left, which is as she recalls." The panel finds that this description is inconsistent with our understanding of the mechanism of injury or with the worker's evidence at the hearing, where she made no reference to any twisting motion and consistently stated that she "fell straight down" on her knee.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of her employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2020