The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 7, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 26, 2004, the worker contacted the Workers Compensation Board (WCB) the records indicate, to report an injury involving her "whole back" which occurred on August 18, 2004. The worker did not report the injury to her employer until August 21, 2004 as she thought the pain would go away on its own. The worker is employed as a part-time cashier and stated that "this is a repetitive motion injury from working at the cash register, from bending, pulling etc."

The employer's accident report stated that no specific incident to cause the injury was identified. On August 26, 2004, the worker reported that she had back pain and provided an accident date of August 21, 2004.

On August 22, 2004 the worker was seen in a hospital emergency department as an outpatient. The report stated that she complained of fatigue, generalized back ache, pain across shoulders into both arms and into her upper back and neck. Diffuse muscle tenderness was noted in the thoracic and lumbar spine. The neurologic exam was normal as was the worker's gait. A diagnosis of a viral illness with myalgias was made.

The worker was seen by her own physician on September 1, 2004. The diagnosis rendered was muscle strain upper back.

On September 22, 2004 the adjudicator contacted the worker and employer to gather more information about the reported injury.

On October 21, 2004 the adjudicator spoke with a co-worker who stated that they started work around 6:00 - 6:30 a.m. and went for a break between 8:00 - 8:30 a.m. When they came back from break the worker was tearful and indicated she had to go home. The co-worker stated there had been no report of an accident prior to going on break. The following Sunday the worker was not at work. The co-worker spoke to another employee and was advised that the worker had an infection. The co-worker stated there had been no report of a workplace incident.

On October 21, 2004 the employer reported that the worker had made prior complaints about not feeling well and needing medical treatment. Since the incident, the worker had missed time for not feeling well.

On November 25, 2004 a second co-worker stated that the worker may have mentioned a month or two earlier that she was experiencing difficulties with her back. He did not provide a specific accident history and could not recall the date on which the worker had made the complaints.

In a decision letter dated November 30, 2004, primary adjudication confirmed that the WCB was unable to accept responsibility for the worker's back injury. They stated that given the initial diagnosis of a viral illness and lack of confirmed reporting to the employer, they were unable to attribute the development of the worker's back symptoms to an accident "arising out of and in the course of" her employment. The claim was therefore, not acceptable.

In January 2005 the WCB received an appeal submission from the worker's union representative asking that Review Office reverse the decision to deny this claim. The union representative argued that it seemed probable that a sudden onset of back pain would be related to the worker's duties as a cashier.

In a decision dated February 3, 2005 Review Office determined that the claim was not acceptable. They stated that following their review of all information, they were unable to establish that the worker suffered a personal injury by an accident arising out of and in the course of her employment.

On March 24, 2005 the worker's representative appealed Review Office's decision and an oral hearing was convened before an Appeal Panel on June 7, 2005.

Reasons

The worker began employment as a cashier in April of 2004. She testified at the hearing of her appeal, that on August 18, 2004, while at work, she began to experience pain across her back from shoulder to shoulder, lower down into her back and up into her neck. At the time she did not tell anyone at work about the pain. She worked again on August 19, 20 and 21. She testified that over the course of those days the pain worsened.

She testified that when she first arrived at work on August 21 she told her supervisor that her back was sore and asked whether she would be able to go home early. She said she was told by her supervisor that if it was slow the supervisor would see what she could do.

The worker testified that by the time she went for her first break on August 21 she was already in tears because of the pain. She could not move her arm and so she spoke to her supervisor again, asking to go home. The supervisor allowed her to leave.

The next day, on August 22, the worker went to the emergency department of a local hospital. The physician who saw her noted that she had been seen exactly one month before at which time she was diagnosed with and received treatment for a viral infection.

The worker testified that when she went to the emergency department in August, however, her only complaint was of back pain. The records from the emergency department confirm that on August 22 the worker complained of having "fatigue, generalized back ache worse with standing". These records also indicate that she had no fever, had diffuse muscle tenderness and bony tenderness. She was given a prescription for anti-inflammatories and pain killers to treat her symptoms.

The emergency physician suggested that the worker see her own physician. He advised her to stay away from work for a period of time and provided her with a note.

The worker testified that after she left the hospital on August 22 she went back to her employer and handed in the emergency physician's note. This was confirmed by the employer.

The worker saw her family physician on August 25. After conducting an examination the doctor diagnosed that the worker's back was in spasm. It was the physician's opinion that the repetitive bending, lifting, pushing and pulling which the worker reported were part of her work duties, were the causes of the spasm. The physician advised the worker to stay away from work for two weeks and then to come back for a follow-up check-up. The worker's physician also provided the worker with a note which the worker provided to her employer on August 25. Receipt of this note was also confirmed by the employer.

In a report dated November 2, 2004 the worker's physician stated that she re-evaluated the worker on September 1, 2004 at which time she advised the worker to modify her work duties in order to accommodate the pain she was experiencing.

The worker's physician provided a subsequent report dated December 22, 2004 in which she confirmed that when she saw the worker on August 25, 2004 her examination revealed that the worker had tender rhomboids with limited extension and rotation of her back. The physician diagnosed muscle spasm. It was her opinion that the "sudden onset of generalized back pain could have been secondary to her job as a cashier where she is on her feet and continuously moving her upper torso".

The worker testified that since returning to work in September of 2004, her employer did from time to time accommodate her request to perform modified work duties. However, since March of 2005 she has been put back on regular duties. The worker testified that unfortunately she continues to experience symptoms of pain in her back.

Subsection 4(1) of The Workers Compensation Act of Manitoba (the "Act") sets out when compensation is payable. It reads as follows:

"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.

An "accident" is defined in subsection 1(1) of the Act as:

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

1. a willful and intentional act that is not the act of a 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."

Upon reviewing the file and hearing the testimony of both the worker and a representative of the employer (who attended the hearing by means of teleconference), the Panel has determined that the worker has indeed sustained a personal injury by accident arising out of and in the course of her employment within the meaning of the Act. Her physician's diagnosis of back pain is consistent with the description of the worker's job duties and the mechanism of her injury. The claim is, therefore, acceptable.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of July, 2005