The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 1, 2001, at the employer's request. The Panel discussed this appeal on November 1, 2001.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

In February 2001, the claimant filed a claim for compensation benefits indicating that he incurred lower back pain on January 26, 2001, from bending and overstressed muscles. The employer's report of injury stated that the claimant related his back ache to being overworked on his first day back from an unrelated long term illness.

In a telephone conversation on February 20, 2001, the claimant advised a Workers Compensation Board (WCB) adjudicator that he was off work from August 15, 2000 and that he returned to work on January 22, 2001. The claimant advised that he gained 30 lbs. over this time period. The claimant described his job duties prior to August 15th as washing, scraping, sanding and masking (using tape) and painting buses which involved climbing scaffolds. When he returned to work for his afternoon shift on January 22, 2001 he was given light work at a parts table and was sanding small parts. This was because his regular job had been filled by another worker. On January 26, he was asked by his lead hand to work at a different work station, which he did. By the time the coffee break arrived he was stiff and sore in the middle of his lower back. The claimant denied any slips or twists and chalked up his back difficulties to having been off work for so long. He then told the lead hand after the break that he was sore from the work duties and that he did not think he could continue and that he wanted to see the nurse. After seeing the nurse and filling out a green card, the claimant attended a hospital emergency facility for treatment.

In a decision dated March 7, 2001, Rehabilitation and Compensation Services denied responsibility for the claim on the basis that no accident occurred during the course of the claimant's employment. On April 9, 2001, the claimant appealed the decision to Review Office. On May 30, 2001, an advocate for the employer supported the position that the claim for compensation was unacceptable.

On June 1, 2001, Review Office determined that the claim was acceptable and that it met the criteria outlined in Section 4(1) and 1(1) of the Workers Compensation Act (the Act). Upon weighing all the factors including the thorough investigation performed by the adjudicator, Review Office concluded that it was certainly not unreasonable to take the position that the claimant's lumbar stiffness and diagnosis of lumbar strain was related to his deconditioning and the duties that he was performing on January 26, 2001. Review Office was of the opinion that the claimant's job description on January 26th was the thing that was done and the doing of which arose out of and in the course of his employment and led to the diagnosis of a lumbar strain. On June 28, 2001, the employer's advocate appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who claims that he was hurt on January 26, 2000, while working in the painting department in a large manufacturing facility. His claim for benefits was denied by a WCB adjudicator, and was later accepted by the Review Office.

The employer has appealed the acceptance of the claim to the Appeal Commission. For the employer to be successful, we would have to find, on a balance of probabilities, that there was no accident, as defined under Section 1(1) and 4(1) of The Workers Compensation Act.

We were unable to come to that conclusion.

The evidence shows that the worker was a long term employee with the accident employer, working in recent years in the painting department. In August 2000, he went on an extended leave from his job because of a non-compensable medical condition. During his absence, he became seriously deconditioned and gained 30 pounds in that period of time. On his return to work on January 22, he spoke with his supervisor about his limited capacity to work, and was placed in a parts preparation area that he was able to manage.

On January 26, 2001, the worker's supervisor assigned him to at a work station that was described by both the worker and employer representative as significantly more labour intensive. The job duties involved moving and climbing scaffolding, sanding, scraping, caulking, and taping work. It involved work from ground level and up to 14 feet above the ground that required bending, climbing and stretching. The worker's evidence is that this work involved significant use of his back, both from the positions he had to assume, and the need to use body force to complete the job duties. Although the worker did express concerns to his supervisor about his deconditioning and his capacity to do the work, he did work at that station. By the first coffee break, he started to notice problems with his back. The worker reported his difficulties at work, saw the company nurse, and completed a green card during his work shift.

After work, the worker attended the emergency department of a Winnipeg hospital. The examining physician noted reduced range of motion and provided a diagnosis of a lower back strain. He placed restrictions of no repetitive movement or heavy lifting, for one to two weeks. The next day, the worker saw his own physician, who also provided a diagnosis of backache/lumbosacral sprain, and later completed a return to work form indicating that the worker was capable of modified duties on February 12, 2001.

The employer's position was that the worker was performing his normal job duties, and that the "pain" reported to the two treating physicians was the equivalent of normal aches and pains that would be suffered by a weekend athlete, particularly in a deconditioned individual. We note however that the diagnosis of both physicians was of a lumbar back strain, and that this diagnosis, with the accompanying recommendation of restrictions and authorization of time off work, goes beyond the "aches and pain" suggested by the employer's advocate.

We also note that the worker may indeed have predisposing factors that would make him more likely to suffer these injuries at the workplace. However, we note that the worker did report that his injuries arose while he was at work, and we find that the mechanism of injury is consistent with the job duties that the worker was performing on January 26, 2001. Accordingly, we find that there was an accident as required by the Workers Compensation Act, and therefore the employer's appeal is denied.

While the worker at the hearing asked that the employer should be fined for filing a frivolous appeal, we have concluded that such a finding would not be appropriate in this case. We note that the employer's submission focused on the weight to be given to the medical reports, in particular findings such as "pain" and "lower back strain", in a deconditioned individual and whether they arose from the job. While this panel has not agreed with the employer's submissions in this case, this does not make the appeal frivolous.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of November, 2001