The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 8, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 8, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In March 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report difficulties she was experiencing with her neck, shoulders and upper back region from the strain of steering her vehicle in bad road conditions, i.e. loose and heavy hard-packed snow. On March 12, 2002 the claimant sought treatment from a chiropractor and was diagnosed with a cervical strain injury.

With respect to prior difficulties, file information revealed that the claimant was involved in a motor vehicle accident (MVA) on July 31, 2001 and that she submitted a claim to Manitoba Public Insurance (MPI) for neck and upper back injuries relating to the MVA. The claimant was receiving chiropractic treatment as a result of the MVA. At the end of March 2002, MPI was ending its responsibility for chiropractic treatment. The claimant also has filed several other compensation claims dating back to 2000 for neck and back difficulties.

In a report dated March 20, 2002, the employer opposed the acceptance of the claim on the basis that the claimant only reported defective heating when she signed off her shift on March 12, 2002. She did not report any defects relative to the steering or suspension of her vehicle.

On May 1, 2002, a WCB chiropractic consultant reviewed this claim together with prior WCB claims filed by the claimant. He stated that the claimant’s current injuries were similar to those that were suffered in the MVA and that the mechanism of this compensable injury would not normally be expected to cause injury. In his opinion, however, the claimant’s condition was an aggravation of her pre-existing condition rather than constituting a new injury.

In a decision dated May 1, 2002, a WCB adjudicator notified the claimant that the WCB was unable to establish that a work related injury occurred on March 12, 2002 and that her claim was not acceptable. The adjudicator in reaching his decision referred to the opinion advanced by the chiropractic consultant.

Subsequent information revealed that primary adjudication requested and obtained a complete copy of the MPI claim file. On July 3, 2002, following review of the MPI information, a WCB chiropractic consultant concluded that the claimant’s condition following the incident of March 12, 2002 did not represent an injury but rather was a continuation of her pre-accident condition. It was also not clear to him as to whether or not an aggravation had occurred.

On July 9, 2002, all parties were advised of the opinion expressed by the WCB chiropractic consultant and were informed that the decision of May 1, 2002 would not be altered. On December 23, 2003, the claimant’s union representative appealed primary adjudication’s decision to Review Office.

On February 21, 2003, Review Office stated that after reviewing the file documentation, it could not establish that the claimant sustained personal injury by an accident arising out of and in the course of her employment on March 12, 2002. The Review Office cited the following reasons for its decision:

• the claimant was still recovering from her MVA as she was attending her chiropractor for treatment right up to March 12, 2002.

• the claimant was aware that her chiropractic treatment coverage through MPI was coming to an end in March 2002.

• the treating chiropractor did not inform the WCB of the claimant’s pre-existing MVA in his first report and the claimant’s subjective complaints were similar to those immediately prior to March 12, 2002.

• the attending physician treated the claimant for a cervical neck sprain and this area was still under active treatment with the chiropractor before and up to March 12, 2002. There was no diagnosis consistent with an injury to the claimant’s arms, shoulders or back.

• there were no defects reported with the steering column or suspension of the vehicle that the claimant was driving.

• the claimant reported driving in similar weather conditions without difficulty over the past 11 years.

• the opinion expressed by the WCB chiropractic consultant that the claimant’s difficulties on March 12^th did not represent an injury but rather a continuation of her pre-accident condition.

On March 31, 2003, the claimant’s union representative disagreed with the decision reached by Review Office and requested an oral hearing, which later took place on July 8, 2003.

Reasons

Chairperson MacNeil and Comimssioner Day

Section 4(1) of the Workers Compensation Act (the Act) provides for the 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 the 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 keeping 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

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

The claimant’s injury was diagnosed by her treating chiropractor as being an acute arm/shoulder/neck and back sprain/strain. As the background notes indicate, the claimant contends that the foregoing injury arose out of and in the course of her employment when driving on extremely poor winter road conditions. While the evidence presented by the parties at the hearing was not totally clear-cut with respect to the severity of the snow cover and rutting on the streets, we nevertheless accept and find as a fact that the road conditions at the time of the compensable incident were less than perfect. As long-time residents of Manitoba, we are very aware with what March winter road conditions can be like in Winnipeg.

On May 1^st, 2002, a WCB chiropractic consultant reviewed the file and provided the following opinion with respect to the claimant’s injury.

“Mechanism of this CI [compensable injury], as I understand, would not normally be expected to cause injury. In my opinion, her conditions represent aggravation of her pre-existing condition rather than constituting a new injury.”

In a later opinion dated July 3^rd, 2002, this same WCB chiropractic consultant comments, “Indeed, it is not clear that even an aggravation occurred.” We feel that this apparent contradiction must be read in context with the sentence immediately preceding this statement. The prior sentence reads as follows: “Based on the material available for review, I am of the opinion that Ms. [the claimant’s] condition following the incident of March 12, 2002 does not represent an injury but rather a continuation of her pre-accident condition.”

After carefully considering all of the evidence, we find that the claimant did, on a balance of probabilities, sustain an aggravation of her pre-existing non-compensable condition as a consequence of the March 12^th, 2002 incident. We further find that the claimant’s injury arose out of and in the course of her employment and therefore the claim is acceptable. Accordingly, the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of August, 2003

Commissioner's Dissent

Commissioner Finkel’s Dissent

This case involves a worker who is claiming that strain injuries to her neck, shoulders and upper back region are work-related and arose from the strain of steering her vehicle in bad road conditions, while at work on March 12, 2002. Her claim was denied by a WCB adjudicator and by the WCB Review Office. The worker is appealing those decisions, and is asking this panel to accept her claim for benefits for these problems.

Sections 1(1) and 4(1) of the Workers Compensation Act set out the circumstances under which claims can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act. I was unable to make this determination in this case, and accordingly would not accept the claimant’s appeal, based on the evidence and reasons that follow.

The evidence discloses that the claimant is a bus driver who worked a “split shift for the accident employer. During her morning shift on March 12, 2002, she states that she had to deal with bad road conditions caused by a snowfall, and in particular, loose and heavy hard-packed snow that made it difficult to steer the bus.

The evidence from the employer is that the snowfall prior to the claimant’s workshift was small, at 5 cm, according to the meteorological records of Environment Canada. They also note that claimant’s bus route – Main Street and Portage Ave. – are high priority streets in Winnipeg, had been cleared of snow from a March 8 snowfall, and would have been among the first to be plowed of any snow accumulations. As well, maintenance records on the bus used by the claimant do not disclose any mechanical problems in relevant areas, such as seating, suspension, or steering. For these reasons, the employer argues that the claimant’s performance of her job duties could not have been the basis of the injuries that she reported that day.

In reviewing the evidence in this matter, I note that this case has been complicated by an earlier motor vehicle accident (MVA) on July 31, 2001, that led to injuries to the same body areas that the claimant is claiming in this case. She submitted a claim to Manitoba Public Insurance (MPI) for neck and upper back injuries in respect of that accident. Her claim was accepted, and MPI authorized ongoing chiropractic treatment to assist her in recovering from those injuries. The claimant also has several other compensation claims dating back to 2000 for neck and back difficulties.

The claimant was still being treated for her non-compensable MVA injuries in March 2002; in fact, her chiropractor had applied on March 7, 2002, five days before her March 12, 2002 problems, for an extension of chiropractic treatment, noting that the claimant was 75% of her pre-accident status. At that time, he noted symptoms of “headache, diffic. concentration, back spasms, eye strain, fatigue spells, difficulty locomotion, pains w/work.” He asked for (and received) an extension of treatment, weekly to June 30, 2002, “to eliminate muscle tensions/spasms and improve ROM [range of movement].” The claimant’s evidence at the hearing is that these treatments were ultimately continued and approved to October 24, 2002. This evidence strongly suggests that the claimant was not recovered from the 2001 motor vehicle accident, as of March 12, 2002.

Because of the interplay of the 2001 injury, a WCB chiropractic consultant was asked to review the MPI claim and the specifics of the claimant’s claim for a March 12, 2002 work-related accident. In his memo of July 3, 2002, he comments as follows:

1. Prior to the workplace incident, Ms. [claimant] was attending Dr. [chiropractor] for similar symptoms following this incident. Her care was predicted to continue for a significant length of time, until June, a period of three months. Her pre-accident condition involved similar regions and was of such severity as to cause her trouble walking and concentrating.

2. The pre-incident objective signs include paravertebral muscle spasm and decreased range of motion. Muscle spasm is defined as a full involuntary contraction of a muscle or muscle group, with pain and loss of function. I have attached a formal definition from Dorland’s Illustrated Medical Dictionary. It is not reasonable to expect that a woman in this condition, especially with care predicted to continue for three months and having had this condition over a sustained period of time, would recover prior to the workplace incident a few days later. It seems more likely that her significant problems simply continued.

3. The mechanism of injury, as described, would not be expected to exceed soft tissue tolerance, nor were activities performed in a repetitive fashion. Turning a steering wheel would be considered to be a normal workplace activity or, in fact, activity of daily living, that would not be expected to be injurious, even with snow on the ground. Therefore, in my opinion, a mechanism of injury that would be expected to cause the condition as described by Dr. [chiropractor] in his initial report to WCB does not exist.”

Based on my review of the evidence on the file, I find, on a balance of probabilities, that the claimant’s job duties are not consistent with the development of the symptoms that she manifested on March 12, 2002, and that the evidence does not disclose any unique occupational hazards on that day, while she was on the job, to trigger a new injury or an aggravation of her pre-existing problems. Based on these findings, I concur and adopt the comments made by the WCB chiropractic consultant, as quoted above, and I therefore conclude that the claimant did not suffer an accident that arose out of and in the course of her employment. Accordingly, I would deny the claimant’s appeal.

A. Finkel, Commissioner