The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 22, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 22, 2000.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

In September 1999, the claimant submitted an application for compensation benefits indicating that she experienced lower back pain from her duties as a cashier in a grocery store. The claimant indicated that she was cashing and her back began to hurt. The more she cashed, the back pain got worse. Her last working day was August 26, 1999. The date of accident was reported as August 12, 1999. Medical examination on August 23, 1999, revealed a diagnosis of mechanical low back strain.

A report from the employer dated September 10, 1999, indicated that the claimant worked as a part-time cashier since November 4, 1997 and that she averaged 18 weekly hours. On August 26, 1999, the claimant reported to her supervisor that her low back was sore and she believed it was related to her work duties. This was 15 days later despite having signed company reporting policy that she would report any work related injury to her supervisor or management immediately.

The employer stated that although the claimant claimed no specific incident she believed her condition was caused by lifting and scanning heavy items over a period of time. The employer explained that cashier work stations were specifically engineered to reduce the risk of a work-related repetitive strain injury and that cashiers are trained to perform their work in such a way as to minimize the risk of injury.

The employer found it difficult to believe that the claimant could perform her full regular duties for the past year and 8 months without any difficulties, and now suddenly claim her work duties were the cause of her present condition. The employer concluded that the claimant's back condition did not arise out of and in the course of working 18 weekly hours, nor from lifting and scanning items.

On September 28, 1999, a Workers Compensation Board (WCB) field representative took a sworn statement from the claimant. The claimant acknowledged that 12 years ago she first had some problems with her lower back area due to a motor vehicle accident. She did not see any specialists at that time and received physiotherapy treatment for about six weeks. She did not have any more problems with her lower back until sometime in mid August 1999. Because her back problems came on so slowly and gradually the claimant said she could not provide an exact date or time but either August 11 or 12th she started to notice that her back was getting sore while doing her regular duties. There was no specific accident and there was nothing unusual about her work hours.

The claimant stated she never mentioned to anyone that she was having back problems as it came on gradually and she did not think her problem was serious. When she went to work on August 26, 1999 she told her supervisor that she was having work related back problems. She said she brought a doctor's note indicating that she should not be working for about two weeks. She told her supervisor she would try and work despite this and was placed on Express which was lighter work. "I will clarify that the week before I had mentioned to [supervisor] on a couple of shifts that my back was sore and that I would prefer working on Express. She did assign me on the Express lines. She never asked me what happened to cause my back to act up. All I told her was that I had a sore back. I am aware that we are supposed to fill out a written report with the Supervisor ASAP if there was an accident. Because there was no accident I never filled one out or asked to."

In a sworn statement dated September 29, 1999, the claimant's supervisor indicated that during the week of August 16, 1999, the claimant mentioned that her back was sore on one occasion and requested to work on the Express. The claimant did not advise what caused her back to be sore, if she had indicated a work-related reason the supervisor advised she would have wanted her to provide details. The next time the supervisor was aware of the claimant having back problems was on August 26, 1999 at the start of the shift. The claimant brought a note from her doctor and said she wanted to work on the Express again due to her sore back and her request was accommodated. At 4:45 p.m. the claimant advised that her back was sore and that she wanted to leave. At that point the claimant advised that her back problems were work related but did not indicate when or what had caused the problem.

In a letter dated October 8, 1999, the claimant was notified that her claim for compensation was denied based on Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). Rehabilitation & Compensation Services were of the opinion that a relationship between the development of her back difficulties and an accident both arising out of and in the course of her employment had not been established.

On November 26, 1999, a union representative appealed the above decision to Review Office. The union representative questioned whether the adjudicator had heard of repetitive strain or cumulative trauma. He stated that the claimant may not have mentioned her problems were work related but it was well known that supermarket cashiers were subject to lower back problems. He further added that a specific incident was not required for an injury to be accepted as a workers compensation claim.

On December 19, 1999, the Review Office confirmed that the claim for compensation was not acceptable. Review Office was of the opinion that the claimant had ample opportunity and was well aware that she was to report work related injuries to the store management as soon as the injury was apparent. Review Office noted that the claimant reported a work related injury when she was forced to leave work on August 26, 1999. It was only at that time that she informed her supervisor that she believed her back problems were caused from her employment. When the worker asked to work on the express lane during the week of August 16 and again on August 26, 1999, she only stated her back was sore and did not relate it to any specific cause. Review Office was of the opinion that the present evidence did not support the worker's claim that an accident arising out of and in the course of her employment occasioned her back injury.

On January 10, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue in this appeal is whether or not the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are subsection 1(1) which defines accident and 4(1) which provides for the payment of benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment. In accordance with subsection 1(1) the panel must initially be satisfied that there has been an accident within the meaning of the Act.

In determining this appeal we reviewed all the evidence on file and given at the hearing. We find that the weight of the evidence, on a balance of probabilities, supports a finding that a non specific accident as per subclause 1(1)(b)(ii) of the Act occurred.

In reaching this conclusion we accept the claimant's evidence that her low back pain occurred mid shift while working as a cashier on or about August 11th or 12, 1999, and that later that shift she requested a transfer to the express lane for a sore back which is consistent with an accident arising out of and in the course of employment.

The claimant reported the injury when she incurred time loss. Her evidence was that she was not aware of the need to report earlier and that she felt the pain would get better. The employer does have a policy with respect to the immediate reporting of injuries in the workplace which the claimant was aware of, and signed at the time of hiring in 1997.

We respect the employer's concern with regard to the importance of prompt reporting of accidents by workers. However, in the circumstances of this appeal, we note the claimant has no prior claims with the WCB; that the delay from the original reported onset of symptoms at work on August 11th or 12th to the claimant's actual time loss after August 26th, 1999 was relatively short; and that at first the claimant had no time loss.

We also note during the above time frame there is supporting medical documentation indicating that the claimant attributed her low back symptomatology to her activities in the workplace. The evidence also reveals that during this period of treatment and worsening of symptoms, the claimant continued to be accommodated by her supervisor at the express lane. We note that the claimant regularly works approximately 18 hours per week and that she returned to her regular duties November 8, 1999. We therefore find this claim to be acceptable and allow the claimant's appeal.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2000