Decision #112/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on June 22, 2006. The worker appeared and provided evidence. She was represented by a union representative. The accident employer and its representative also attended.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

At 1:05 a.m. on July 18, 2005, the worker filed a green card with her employer for injury to her lower back. The cause of injury is listed as:
"Possibly vibration, pot-holes on the road while driving buses. (No pain before started working, pain after finished work) Not positive of cause."
This description of accident was confirmed by the worker on her application for compensation to the Workers Compensation Board (hereafter "WCB") dated July 21, 2005:
"…I have very strong pain in my lower back, spreading to both hips, and up to my waist, more with sitting than standing. It started during my shift when driving from 3:29 pm to 9:33 pm, and then I was doing a split shift with walking, and the pain was almost completely gone, so I though it was going to go away. When I left the seat for another driver, it was hard for me to get up, but when I started walking it went much better, and I thought it was going to go away. My second split shift was from 11:00 pm to 12:48 am, and my pain came back, and the worst was when I was finished and parking my bus in the garage, and when I was supposed to get up it was extremely hard, and my lower back was very painful. I walked very slowly to where I was supposed to sign off my bus (approximately 100 meters)".
The worker sought treatment from a chiropractor on July 19, 2005. The diagnosis rendered was an acute lumbosacral joint sprain with a possible lumbosacral disc herniation. At the hearing the worker testified that she was never told she had a disc herniation and that no x-rays were taken. She remained off work until August 1, 2005 when she gradually returned to her regular duties over a seven day period.

On July 21, 2005, information obtained from the employer indicated that the worker was involved in a "self propelled challenge" and that her back problem may be due to cycling.

On July 27, 2005, the worker advised a WCB staff representative that she had no significant problems with her lower back prior to her shift on July 18, 2005. She indicated that her last day of cycling was on July 13, 2005 and that she walked as part of the challenge and her last day was July 17, 2005.

Information obtained from the employer on July 29, 2005, indicated that the worker drove two different buses on July 18. There were no reports to the control centre on July 18 from the operator, and neither bus had any defects reported for seats, suspension, etc.

Following review of all the file information, Rehabilitation and Compensation Services denied responsibility for the claim on July 29, 2005 based on the following rationale:
  • "No specific accident or incident;
  • No specific location or area noted by the worker;
  • No defective seat or suspension or road surface outlined by the worker to the employer on [date of accident];
  • Extra curricular activities performed prior to the onset of symptoms or cycling over 520 km's from July 1, 2005"
On August 19, 2005, a union representative, acting on the worker's behalf, appealed the WCB's decision of July 29, 2005. It was his position that the worker's lower back condition arose out of and in the course of her employment. He felt there was a cause and effect relationship between the worker's lower back condition and operating a bus for six hours over a seven day stretch without a proper break and poor road conditions.

In response to the union representative's submission of August 19, 2005, the WCB case manager stated, in part, that the worker did not report any defects with respect to the bus seat or suspension during her shift on July 18, 2005. She could not provide a specific location in which she would have been exposed to driving over rough roads consistent with the development of her current condition. Therefore, there was no new evidence to warrant a change in his decision to deny the claim. On October 3, 2005, the union representative appealed the decision to Review Office.

On January 12, 2006, Review Office confirmed that the claim for compensation was not acceptable based on the following rationale:
  • The worker was unsure as to what caused her injury and thought it was possibly due to the vibration, potholes and bouncing;
  • The worker stated to her employer that she was not positive as to what caused her back pain;
  • The worker did not identify any specific road conditions or locations being the cause;
  • The worker did not report any defects with the buses she drove;
  • The evidence did not support that an accident arose out of and in the course of the worker's employment as is required under subsection 1(1) of The Workers Compensation Act (hereafter "the Act").
On February 6, 2006, Review Office's decision was appealed by the union representative and an oral hearing was arranged.

Reasons

To accept the worker's appeal we must find that there was a workplace accident within the meaning of subsection 4(1) and 1(1) of the Act. We are unable to make that finding.

For there to be a compensable injury, the worker must suffer a personal injury arising out of and in the course of employment.

The worker's evidence at the hearing was that she suffered low back symptoms while in the course of employment. This evidence was supported by three witness statements. The worker however remained unsure of what might have caused her low back symptoms. Several hypotheses were put forward - the road, the bus driver's seat, the length of the worker's shift and her work week. The worker said that she did not notice anything untoward during her shift but added that the routes she drove that particular day were busy.

The employer confirmed at the hearing that the worker did not call in regarding road conditions nor were there records of complaints by any other drivers with respect to the roads driven by the worker. The employer also confirmed that there were no repairs done on the buses the day of the accident or within the months following it with respect to the suspension system or seats, or complaints by other drivers before or after that date with respect to the two buses driven by the worker.

The worker's union representative argued that subsection 4(5) of the Act should come into play given that the worker's symptoms arose during her employment. Subsection 4(5) provides as follows:
"Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment."
While subsection 4(5) acts as a presumption clause it is still necessary that there be an accident within the meaning of the Act. In other words, it is necessary that the injury be causally related to the work duties.

In reviewing and weighing the evidence, while the worker's injury may have arisen in the course of her employment, we find that it did not arise out of her employment. We therefore find on a balance of probabilities that the worker's back symptoms are not causally related to her work duties and that her claim is not acceptable.

Accordingly her appeal is denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of August, 2006

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