Decision #14/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 29, 2003, at the employer's request. The Panel discussed this appeal on January 29, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In May 2002, the claimant contacted the call center at the Workers Compensation Board (WCB) to report lower back pain which she attributed to a prior 1982 compensable injury and to working eight hours a day on a till which required her to bend down forward to get prescriptions out of a drawer. The diagnosis rendered by the attending physician on May 7, 2002 was a lumbar strain.

Following an investigation into the claim which included contact with both the claimant and the employer, primary adjudication determined on June 5, 2002 that the evidence did not establish a relationship between the development of the claimant's symptoms and an accident arising out of and in the course of her employment. In rendering this decision, primary adjudication noted that the claimant had returned to work from another claim on February 14, 2002 and worked 4 hours a day for 2 weeks. The claimant then worked an additional hour a week until she was back to 8 hours a day the week of March 24, 2002. The claimant worked her regular cashier duties throughout this time. The claimant did not report a specific accident and there were no changes in her work duties or workload.

On July 4, 2002, a union representative submitted additional information to the WCB from the claimant's attending physician dated June 25, 2002. Based on this information, the union representative contended that the claimant's back symptoms arose out of and in the course of her employment, specifically while working as a cashier.

On June 25, 2002, the attending physician recorded that the claimant sustained a back injury in 1982 and now started to experience lower back pain radiating to her right leg. The claimant performed a lot of repetitive movement at work by bending her body forward and she connected this to her lower back pain. The claimant also felt that this had been aggravation of her first injury. The physician commented that the claimant's LS spine x-rays showed very mild degenerative changes with very slight narrowing at L4-L5. The remaining discs were well maintained. The claimant's thoracolumbar flexion was decreased to 80 degrees and her reflexes were present and symmetrical. The claimant had also been on anti-depressants for several years and this could have affected her pain sensitivity. The physician reported that the claimant's lower back pain was much better and that her main problem was a stress related disorder.

On July 9, 2002, primary adjudication advised the union representative that the new information had been reviewed, however, there would be no change made to the original decision. The appeal was then forwarded to Review Office for further consideration.

Prior to consider the appeal, Review Office obtained photographs of the claimant's work area at the pharmacy till depicting the various shelves where the prescriptions were kept for pick-up. Review Office also obtained medical notes that were submitted by the claimant to her employer.

On October 25, 2002, Review Office determined that the claim for compensation was acceptable. Review Office was satisfied that the back strain incurred by the claimant was caused by the nature of her employment activities as a pharmacy cashier. On October 31, 2002, the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker, employed as a cashier in a pharmacy, who sustained a strain injury to her lower back. Her application for compensation was initially not accepted. On appeal to the Review Office, that decision was overturned and her claim was accepted.

The employer subsequently appealed that decision to this Commission. The issue before the Panel was whether or not the claim should have been accepted.

For the appeal to succeed, the Panel would have to determine that the injury did not arise out of and in the course of the claimant's employment, as required by The Workers Compensation Act. We did not make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing, at which we heard testimony from the worker, her union representative and an employer representative.

At the hearing, the employer's representative argued that the worker's injury could not have arisen out of her job duties. He noted that she had only been doing them for a few weeks, after being off work for other reasons. He further noted that, prior to this absence from work, she had performed the same duties for some three months, with no apparent problems.

He also brought up some matters related to job performance, which were subsequently rebutted by the worker's advocate. We would note that these matters are not relevant to the issue under appeal and were not considered by us in coming to our decision. We focussed on whether or not the worker's injury could have been causally related to her job duties.

As noted in the "Background" section, the claimant blames the injury on the fact that her job duties require a lot of bending to place items in, and take them out of, a number of drawers below a counter area.

In coming to our conclusion that the injury was job-related, we made note of the following:
  • The claimant had suffered a serious back injury in 1982, while employed by the same firm.

  • Her initial thought was that she had re-aggravated that injury. However, the medical evidence on this injury indicates it is a strain of recent origin.

  • We viewed photos of the work area, noting that the drawers are as she described and would require bending.

  • As reported by the Review Office in its decision, a workplace accident need not be one single traumatic event. An accident can arise out of a lot of bending over a period of time.
It is also our view that, just because no accident arose during an earlier period in which she performed the same duties, does not mean that one would not arise later, as in this case.

We believe that the physical demands of her job could put her back at risk of a strain injury. In this case, we conclude that - on a balance of probabilities - the worker did incur an accident which arose out of and in the course of her employment.

Accordingly, we uphold the decision of the Review Office and dismiss this appeal.

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 6th day of February, 2003

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