The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on September 3, 1999, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

While working as a customer services clerk on January 26, 1998, the claimant stated that she experienced pain in her neck, shoulder blades and both sides of her back. Reports from the employer indicated that they were not aware of the claimant sustaining an injury nor had they received any complaint of a sore back.

On May 8, 1998, a signed statement was obtained from the claimant. She indicated that prior to January 19th, she had been working in customer service which enabled her to walk around more than in her present position at a call centre where she sits all day. Her back problems started the week of January 26, 1998. The claimant stated, in part, "On Monday morning, almost as soon as I sat down, there was a pain in my low back, on the left side. I hadn't done anything on the weekend before January 26th. The pain has been there ever since the 26th. A couple of weeks later, I was also getting pain between my shoulders, on my neck. I didn't report it right away. I just thought that it would go away. Finally, I reported the problem to my [supervisor's name]." The claimant further indicated that she saw the company's physiotherapist on February 13th who told her that her computer monitor was too high, so she lowered it. The claimant stated that she was advised by the therapist to go see a doctor.

Medical information received from the attending physician, dated February 18, 1998, diagnosed mechanical back pain and stiff SI joints. The claimant was referred for physiotherapy treatments. The claimant also attended a chiropractor for treatment on April 21, 1998 who made the following diagnoses: "loss of shunt stability to spurt activity in the cervical and lumbar spine, secondary to decreased neocortical mechanoreceptor afferatation. Cervical, thoracic and lumbosacral strain/sprain secondary to repetitive sedentary and flexion activities constantly exacerbated with work ergonomics."

On May 20, 1998, the Workers Compensation Board (WCB) denied the claim based on sections 4(1) and 1(1) of the Workers Compensation Act (the Act). The adjudicator indicated that no specific accident was noted and that Claims Services did not consider the act of sitting constituted an accident as required by the Act. On June 25, 1998, the claimant appealed the decision stating in part, the following:

"I understand that the act of 'sitting' does not fit into your definition of compensable injury. My claim is not based on the act of sitting but based on the prolonged sitting sedentary positions that were not present in my previous job duties. The point is not the amount of sitting that has caused the problem but it is the requirement to be in a sedentary position for prolonged periods of time. It is my specific work ergonomics that have caused my lower back and shoulder pain which does qualify as per section 4(1) of the Workers Compensation Act ...."

On July 24, 1998, the WCB's Review Office determined that the claimant was not entitled to benefits for the effects of back, neck and shoulder pain which developed about January 1998. Review Office concluded that the claimant's back, neck and shoulder pain were related to degenerative (pre-existing) changes in the spine and general or chronic stressors. Review Office did not believe there was evidence to show that the claimant's employment activities contributed significantly to the cause of degenerative changes noted in the x-ray findings or to risks of muscular/ligamentous injury in the back, neck and shoulder regions. Also, while the claimant's underlying "injury" may have developed or increased in the course of her employment, Review Office did not consider there was sufficient evidence to show that the injury itself was either caused or enhanced by her work activities. Review Office did not find that the claimant had suffered a personal injury by a work related accident as anticipated under section 4(1) of the Act.

Subsequent to the above decision, a medical report was received from a physical medicine and rehabilitation specialist, dated October 21, 1998. He indicated in part, "By history her symptoms and signs were consistent with postural and repetitive muscle strain related to new duties when she changed jobs." In a letter, dated November 10, 1998, the attending chiropractor stated, "Upon her initial visit to our office, a comprehensive examination was performed. It was determined at that time, that the cause of her condition was the new work activities causing prolonged and sustained static positions, in addition to the biomechanical stressors of cervical flexion duties with computer terminal operations."

In a letter to the claimant, dated December 4, 1999, Review Office noted the above reports and did not dispute the conclusions or disagree with the arguments that the claimant's symptoms were more prevalent while performing her work assignments. Review Office said, however, it was unable to determine that this was reason to change its earlier decision or to conclude that the "injury" more likely than not resulted from a workplace accident as defined by the Act.

On September 3, 1999, a non-oral file review was held at the request the worker advisor who appealed Review Office's decision.

Reasons

In accordance 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. That is, “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 provided a statement to the WCB in which she advised that prior to her difficulties commencing on Monday morning of the week of January 26th, 1998, there had been no previous problems with her back. "The back problems started the week of January 26, 1998. Prior to that, I'd never had back problems for which treatment was required. There was nothing unusual about that day. On Monday morning, almost as soon as I sat down, there was a pain in my low back, on the left side. I hadn't done anything on the weekend before January 26th." (emphasis ours)

We do not consider the evidence supports, on a balance of probabilities, any causal relationship between the claimant's neck, shoulder and low back difficulties and her work duties. Accordingly, we find that there has been no accident within the meaning of the Act. Therefore, the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of September, 1999