The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 26, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 26, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant filed an application for compensation benefits related to a left-sided back injury that occurred at work on May 18, 2001. The claimant described the accident as follows:

"I was working on an adjustable stand, the right side of it was sloped because of a broken link to set height. Having all my weight on the left side caused me to have severe pain in my back."

The claimant noted on her application for benefits, that the accident was reported to her supervisor on May 18, 2001.

The Employer's Reports of injury dated May 24, 2001 provided the following information:

"No report to the supervisor on the 18th or 22nd. The nurse was called up to the ladies room as [the claimant] was crying in pain. The nurse originally thought it was her Crohn's. [The claimant] said she felt a pain Friday but was fine able (sic) to do housework."

Under "State All Injuries Reported", the employer noted "Sore back left side all weekend."

Initial medical reports revealed that the claimant has been assessed by a physician on May 23, 2001, for lower back pain complaints and difficulty with ambulating. The worker's history of injury was, "Had left lower flank pain since Friday (May 18). This morning pain much worse and having difficulty walking." Objective findings were pain in lumbar spine since May 18th. The diagnosis was possible muscular back pain. The claimant was prescribed medication and was considered capable of light duties as of May 28, 2001.

The next medical report dated May 27, 2001 noted that the claimant complained of left lower back pain and left leg pain with numbness and tingling. The diagnosis rendered was severe back pain not fully diagnosed.

A second physician who examined the claimant on May 31, 2001, provided the diagnosis of a strained back and left sacroiliac joint. The worker's history of injury was that the injury occurred while working on a conveyor belt.

On June 14, 2001, a Workers Compensation Board (WCB) adjudicator contacted the claimant. The claimant described the events that occurred at home and at work between May 18 and June 18, 2001.

On June 18, 2001 a second adjudicator gathered additional information from the claimant concerning the back difficulties she experienced prior to and on May 22, 2001. On June 22, 2001, a third adjudicator spoke with the claimant and further details were obtained concerning her injury.

In a letter dated July 9, 2001, the claimant was informed by Rehabilitation and Compensation Services of the following decision, "in the opinion of Rehabilitation and Compensation Services, we cannot establish that an accident occurred on or around May 18 to May 22, 2001. When you left work on May 18, 2001, you had some stiffness. The onset of back pain first occurred on May 22, 2001, after work while getting up from your couch at home. As well, the medical information obtained from the first attending doctor does not provide a work related history of an injury."

On October 19 and 30, 2001, a worker advisor appealed the above decision and provided two medical reports dated July 23, 2001 and October 29, 2001. The worker advisor contended that these medical reports supported the position that on a balance of probabilities the claimant's May 18, 2001 injury arose out of and in the course of her employment.

On January 11, 2002, Review Office considered the above appeal along with further information that was provided by the claimant through the worker advisor on November 16, 2001. A submission from the employer's advocate dated January 8, 2002 was also considered. Review Office ultimately determined that the evidence did not establish that the claimant sustained personal injury by accident arising out of and in the course of her employment. On January 30, 2002, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

Section 4 (1) of the Workers Compensation Act (the Act) provides for payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as,

"a chance event occasioned by a physical or natural cause; and includes

1. a wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupation disease
and as a result of which a worker is injured."

At the hearing, the Panel questioned the claimant extensively regarding her work activities on May 18 and 21, 2001. Her evidence was that she usually stood on a flat metal stand, which gave her enough height and reach to perform her cutting duties on a production line. However, on May 21, 2001, the particular stand that she used on her shift was broken, leaving the right side of the ramp much lower than the left side. Her evidence was that she had worked the full shift on May 21 standing on her left foot, with her right leg unsupported. This was necessary in order for her to reach and perform her job duties. We also note that the claimant reported being stiff after her shift on May 18, and that she had an episode of extreme lower back pain at home shortly after her May 21st shift had concluded.

A co-worker also provided a statement confirming that the workplace did have broken and sloped work stands that were used by the workers. This evidence was not challenged by the employer at the hearing.

We find that the preponderance of the evidence supports the conclusion that the claimant's use of the broken stand in the performance of her duties would leave her in an extremely poor ergonomic position that could and did lead to structural loading or postural problems over the period of a full shift. We further find that the job duties and the mechanism of injury are consistent with the claimant's diagnosed problems in the Lumbosacral and pelvic areas. In our view, the claimant did suffer a workplace accident as defined by the Act and accordingly the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2002