The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 14, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 14, 2004 and again on September 2, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In May 2003, the claimant filed a claim with the Workers Compensation Board (WCB) for an incident that occurred in the workplace on April 26, 2003 during her employment activities as a housekeeper. On the date of the accident, the claimant stated that she had been shampooing carpets. During her afternoon coffee break, while standing up from a chair, she experienced a sharp pain in her lower back and right leg.

On April 28, 2003, the claimant sought medical attention from her treating physician and was diagnosed with a back muscle spasm. Spinal x-rays taken on the same day were reported as being normal.

In May 2003, a WCB adjudicator obtained additional information from the claimant regarding her day-to-day work activities and details as to what she felt led to the onset of her back pain.

On May 23, 2003, the WCB advised the claimant that her claim had been denied as the evidence established that her injury was the result of a personal activity unrelated to her employment and that there was no contributing hazard on the premises.

On November 18, 2003, a worker advisor appealed the above decision on behalf of the claimant. In support of her position she argued that the claim met the requirements of Sections 1(1) and 4(1) of The Workers Compensation Act (the Act). The worker advisor also referred to a medical report dated July 15, 2003 which stated the following:

"In my opinion this patient's back muscle spasm can relate to her work especially if she does lots of bending and stretching. Especially while shampooing and standing in one certain position."

On December 12, 2003, the appeal was considered by Review Office and it was confirmed that the claim was not acceptable. The following is a brief excerpt from Review Office's decision letter:

"Although this worker was shampooing carpets which she only did once a month, she stated that she had no difficulties and did not experience any back symptoms while she was shampooing for three to four hours; nor did she experience any symptoms when she was changing the waste water container. She stated that she had no symptoms while she was sitting having a smoke and she first experienced symptoms when she was rising from the chair and felt sudden burning pain in her right lower back.

In the opinion of Review Office, the sudden burning pain in her right lower back occurred at work, but was not caused by a hazard resulting from the nature, conditions or obligation of her employment; nor did it arise at a time and place and circumstances consistent with the process of carrying out her work duties. Therefore, the claim is not accepted."

On January 14, 2004, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged and took place on July 14, 2004.

Following the hearing and after discussion of the case, the Appeal Panel arranged for the claimant to be evaluated by an independent orthopaedic specialist with respect to her back condition. This examination took place on August 11, 2004 and the specialist's report of August 12, 2004 along with an August 10, 2004 report from the treating physician was forwarded to the interested parties for comment. On September 2, 2004, the Panel met to discuss the case further and considered a final submission received from the claimant dated August 25, 2004.

Reasons

Section 4(1) of 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

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 occupational disease

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

Following a careful review of the medical evidence on file, a diagnosis of the claimant’s low back difficulties was not readily apparent. In order to help clarify the situation, we requested that the claimant be examined by an independent orthopaedic specialist. An examination took place on August 11, 2004.

In arriving at our decision, we, of course, considered all of the evidence on file, however, we preferred to attach more weight to the findings and conclusions reached by the independent medical examiner. He recorded in his report of August 12, 2004 these comments:

“In my opinion, the probable diagnosis of her low back condition about April 26, 2003, is mechanical soft tissue/musculoligamentous back strain.

In my opinion, her low back condition was not caused by her work and was a spontaneous occurrence while she was sitting and getting up from a chair. Previously she was shampooing carpets for approximately four hours, and had no symptoms at that time. She had symptoms only starting when she was getting up from a chair while having a smoke. There is no relationship of her symptoms of that time to her regular work.

Current diagnosis of her low back low back (sic) condition is chronic mechanical myofascial low back pain and right hip region myofascial pain.

In my opinion, her present complaints of pain in the low back, right hip region and leg are not related and are not the result of her usual work duties in April 2003. Her pain complaints are consistent with chronic mechanical myofascial strain. She has been able to return to work with her ongoing complaints.”

Based on the preponderance of evidence, we find that the worker did not, on a balance of probabilities, sustain an accident which arose out of and in the course of her employment and which resulted in injury. There being no accident as defined by the Act, the claim is therefore not acceptable. Accordingly, the worker’s appeal is hereby dismissed.

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 14th day of October, 2004