The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 5, 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 March 7, 2005, the worker filed a claim with the Workers Compensation Board (WCB) for lower back, neck and shoulder pain that occurred at work on February 25, 2005. The worker indicated that she was performing her regular morning care of patients (i.e. repetitive bending, twisting and continuous transferring) when she started to feel tightness and pain in her lower back. She continued working and then started to notice her neck and shoulders were becoming tight and sore. The worker indicated that she made ongoing complaints to two co-workers after the initial onset of her symptoms. The worker further advised the WCB that she was on a return to work program through her employer and that she had been off work two years ago due to an automobile accident and had been on long-term disability.

In a report to the WCB dated March 3, 2005, the employer's representative stated that the worker sustained a non-work related injury in 2000 which led to an absence from work until July 2001. The worker participated in a graduated return to work program from April 2004 to February 2005 which was coordinated with the guidance of treating physicians and other medical specialists. The employer's representative sympathized with the worker's complaints of pain but noted that her current symptoms appeared to be similar to the symptoms reported throughout her graduated return to work program. As there was no specific reported mechanism of injury, the employer questioned the worker's entitlement to compensation benefits.

On March 10, 2005, a WCB adjudicator spoke with the worker concerning her claim. The worker indicated that she had been on long-term disability benefits which ended in November 2003, due to a 2001 motor vehicle accident where she sustained a lower back soft tissue injury. The worker stated that she suffered from fibromyalgia and her doctor suggested that she be placed on a lighter ward or be removed from the ward altogether. The worker indicated that she was fine when she awoke on February 25, 2005 and that she felt good in the days prior to February 25, 2005. She could not recall doing anything unusual at work that morning and nothing unusual occurred to cause her back discomfort. The worker noted that what she felt in her back on February 25, 2005 was different from what she normally experienced with her back. She stated she has difficulty bending, walking and had a constant pain in her lower back. The pain was more severe than what she normally would have experienced.

On March 16, 2005, the WCB adjudicator spoke with an employer representative who stated that the worker had managed successfully with the duties assigned to her in her graduated return to work (GRTW) program and that the worker had made back complaints throughout her entire GRTW program to her current time loss starting at the end of February 2005.

In a further conversation with the worker on March 17, 2005, the WCB adjudicator noted that the worker had taken care of four patients the morning of February 25, 2005. The worker confirmed that there was nothing unusual about her work activities and nothing specific occurred to account for her back pain.

Medical information consisted of a Doctor's First Report which showed that the worker was treated on February 28, 2005 for complaints of "back tightening up while at work" on February 25, 2005. The diagnosis rendered was acute back strain/muscle spasm.

In a further report to the WCB dated March 22, 2005, the treating physician noted that the worker has had back trouble for several years related to a motor vehicle accident. The worker was diagnosed with fibromyalgia prior to February 28, 2005. The physician noted that prior to this date, the worker had back pain but could still do work related functions. Since returning to work, she has strained her back on top of her fibromyalgia and is now unable to do most of her work related duties. He noted that the worker's pain was worse now than before February 28, 2005. The physician believed the worker had strained her lower back doing ward work which was too much for her fibromyalgia. He stated that her work restrictions were not followed completely and she may not be able to do ward work. Included with the physician's report were previous test results and consultation reports by two physical medicine and rehabilitation specialists and a massage therapist.

In a decision dated April 7, 2005, the WCB adjudicator denied the claim for compensation as she was unable to establish a relationship between the worker's back difficulties and her work activities of February 25, 2005. On April 28, 2005, a union representative appealed this decision to Review Office on behalf of the worker. The union representative outlined her position that the worker was entitled to WCB benefits for the February 25, 2005 work accident based on the following reasons:

• the worker was performing the duties which her employer directed her to do at the time of her injury;
• the employer was aware that the worker was experiencing pain as she reported the incident;
• the employer's failure to respect the worker's medical restrictions was a significant contributing factor to her disability;
• an accident did occur, in that the incident was occasioned by a physical or natural cause, occurring during the course of her employment.

On June 14, 2005, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the worker's morning routine was no different than any other shift and she did not recall doing anything specific or unusual to account for her pain. Review Office further noted that the worker's representative did not know what caused the worker's pain to worsen that day and the employer indicated that the worker had made ongoing complaints since resuming work in April 2004. Review Office indicated there was well documented evidence that the worker continued to suffer from fibromyalgia when she returned to work. Given the information on file, Review Office was unable to conclude that the worker's lower back complaints were the result of an accident arising out of and in the course of her employment. On August 16, 2005, the worker's representative appealed Review Offices decision and an oral hearing was requested.

On October 28, 2005 and November 25, 2005, the employer's representative provided the Appeal Commission with additional information that would be commented on at the hearing.

Reasons

The issue in this appeal is whether the worker's claim is acceptable.

The worker appeared in person at the hearing, as did a representative of the employer. Both parties were accompanied by representatives who made excellent submissions which the Panel found very helpful.

The worker's position is that she sustained a workplace injury on February 25, 2005. At the time, the worker was performing duties as a nurse. She testified that on February 25, 2005 she had a normal work day. Her shift began at 7:15 a.m. During the course of her duties she was required to assist four patients in their morning routines including helping them wash, dress, transfer from bed to chair and make their beds. The duties involved repetitive twisting, bending and turning motions, often performed in awkward spaces.

The worker testified that at about 10:00 a.m. while assisting patients during the course of her duties, her back became very sore.

At the hearing we heard evidence from both parties as to the fact that at the time of the alleged accident, the worker suffered from fibromyalgia. In that regard, the worker testified that as of February 25, 2005 she was experiencing pain on a regular basis. She described the pain on a scale out of 10 as being about 4 to 4.5.

The worker testified, however, that by the end of the shift which she worked on February 25, 2005, the pain she experienced was 8 or 9 out of 10. She said the pain did not go away and in fact got progressively worse over the next few days.

After February 25, 2005, the worker was off work for a period of 8 weeks. During that time she received treatment for her symptoms which allowed the pain she experienced to return to the level it was prior to February 25, 2005. The worker's claim which is the subject matter of this appeal is, therefore, a claim for the 8 weeks following February 25, 2005, during which she was unable to work, due to back pain.

The employer in its submission argued that the worker did not experience a compensable injury on February 25, 2005. Their position is that while they are sympathetic to the worker's experience of pain, that pain was related solely to the worker's pre-existing condition of fibromyalgia.

The issue for the Panel, therefore, was whether the worker was entitled to payment of compensation benefits as the result of an injury which she said occurred on February 25, 2005.

After reviewing the totality of the evidence, the Panel finds that the worker's claim is acceptable.

Subsection 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.

Subsection 1(1) of the Act defines "accident" as:

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

…

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 as a result of which a worker is injured."

The Panel accepts the worker's submission that the symptoms she experienced starting on February 25, 2005 and which lasted for a period of 8 weeks following, were caused by a work related event which arose out of and in the course of her employment. The Panel recognizes, and indeed the worker did not deny, that prior to the accident the worker's back was not pain free. However, her evidence was that on February 25, 2005, by the time she had carried out most of her morning work duties she was experiencing additional pain. She described the pain as being twice as significant as what she experienced in connection with her condition of fibromyalgia. She also described the pain as being of a different nature than what she normally experienced in relation to that condition.

The Panel finds that on February 25, 2005, the worker sustained an acute back strain which was superimposed on her existing condition of fibromyalgia. This is supported by the medical evidence and in particular the reports which were prepared directly after the event occurred.

The first report prepared by the worker's physician dated March 8, 2005 diagnosed the worker as having sustained "an acute back strain/muscle spasm" on February 25, 2005.

In a report dated that same date the worker's physiotherapist diagnosed the worker's condition as being "low back strain".

In a subsequent report dated March 22, 2005, the worker's physician confirmed her opinion that the worker had strained her lower back in the course of performing her duties on the ward.

The Panel finds, therefore, that on February 25, 2005 the worker sustained an acute back strain which arose out of and in the course of her employment. After being off work for a period of 8 weeks and receiving treatment during that time, the worker's physical condition resolved to its pre-accident status.

The worker's 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 15th day of December, 2005