The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on April 6, 2006, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal following the hearing on April 6, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On November 5, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred in the workplace on October 21, 2004. The worker indicated that she was coming down a flight of stairs and suddenly felt a pain in her lower back. She was not sure what happened. The worker did not seek medical attention until the following day as she thought her injury was not going to be that bad.

The Employer's Report of Injury dated November 5, 2004 indicated that there was no report of an accident or injury. The worker called to say she had a sore back but did not know the reason for it.

A Doctor's First Report outlined the area of injury as right lumbar, right hip and right buttock. The diagnosis was acute low back strain. The worker's description of accident or injury was "works as automotive parts handler in shipping & receiving - packages 5-60 lbs. - as worked that day pain began to slowly occur - became severe with bending, lifting and twisting and walking until unbearable."

On October 23, 2004, the worker attended a chiropractor for treatment. The chiropractor's diagnosis was lumbar disc herniation, lumbosacral segmental dysfunction and SI joint dysfunction.

On November 15, 2004, the worker advised her WCB adjudicator that she was unsure what caused her injury and that she was just walking down some stairs at work and felt some pain in her lower back. The worker denied any prior back problems, other than a strain that occurred about 10 years ago. The worker noted that she was told by her doctor that her injury was probably because of the repetitive nature of her job activities.

On October 30, November 10 and November 30, 2004, the worker's back condition was assessed by a sports medicine specialist. In his report of December 9, 2004, the specialist stated that the worker provided a history of pain after lifting at work. With respect to the initial diagnosis, the specialist stated it was mechanical back pain with radicular features which was later modified to a discogenic type source.

The medical reports and file information was reviewed by a WCB medical advisor on January 12, 2005. In his opinion, the likely diagnosis for the worker's back condition was a lumbar strain. He further opined that no compensable injury occurred (onset occurred while walking down stairs) and he could not relate the diagnosis to the worker's job duties.

In a decision dated January 19, 2005, the worker was informed that the WCB was denying her claim for compensation. The letter stated, "…the act of climbing stairs can be considered a personal routine task associated with the routine of daily living and given the absence of any hazard, does not provide a sufficient causal connection between the employment and the injury. We are unable to establish that your work duties would cause this injury. Therefore, we cannot establish that a workplace accident occurred and are unable to accept responsibility for our (sic) claim."

On January 26, 2005, the worker advised her adjudicator that she reported her injury to the employer the day after, and that she told him on October 22 that she hurt her back the day before from a lot of lifting at work. The worker indicated that they had been working about 10 hours overtime per week. She told her employer on October 25, 2004 that her back was herniated and it was worse than expected.

In a further decision dated January 26, 2005, the worker was notified by the adjudicator that no change could be made to the initial decision. It was felt that the medical diagnosis was not consistent with the mechanism of injury of descending a flight of stairs nor could the diagnosis be related to the worker's general work duties. On March 15, 2005, a union representative appealed the decision to Review Office on the worker's behalf.

On April 22, 2005, Review Office upheld the decision that the claim for compensation was not acceptable. Review Office concluded that the file evidence did not establish that the worker sustained personal injury by reason of an accident arising out of and in the course of the worker's employment. Review Office's decision was later appealed by the union representative and a hearing was arranged.

Reasons

The issue before the panel was whether the worker's claim is acceptable. For the appeal to be successful, the panel must find that the worker's injury was caused by an accident that arose out of and in the course of her employment. The panel did find the worker's injury arose out of and in the course of her employment and that the claim is acceptable.

Worker's Position

The worker attended the hearing with two union representatives. One of the union representatives made a submission on the worker's behalf. The worker answered questions posed by her representative and the panel.

The worker provided a detailed description of her position as a parts handler and the physical set-up of the workplace. She described the workplace as "very fast paced" and that her duties involved non-stop, continuous parts picking.

The worker also provided a detailed description of her activities at work on October 21, 2004. Of particular note the worker described an incident involving the handling of two batteries that occurred at approximately 8:45 a.m. She advised that she was filling an order which included two batteries. She stated that she manually eased the batteries off the shelf as no jacks were available and lifted the batteries into her cart. She stated that after she lowered the batteries into the cart, "I came up and when I went to straighten up, I couldn't." She said she felt instantly stiff and was unable to straighten up and started to get spasms. She states:

"Well, I stood there for a minute and I tried to do the - look up and stretch and I had an order I had to finish picking, so I slowly walked to the mezz where I would go up the stairs to finish the order. And that's what I did, I just slowly - ".

The worker said that she continued working and collected parts in a basket but when she went to take a step down "…the pain shot from my hip to my leg and if I wasn't hanging onto the rail I think I would have…toppled,…"

The worker explained that after this incident her symptoms worsened but that she continued to work. She told two co-workers about the incident. When asked whether she completed a green card, she advised that she understood that green cards were not available at the workplace. The worker advised that she called her supervisor the next day and reported her injury.

The worker's representative submitted that the claim is acceptable. She stated that the worker's symptoms actually started with moving the batteries and became severe when she attempted to walk down stairs, leading with her affected leg. The representative disagreed with the WCB's characterization of the worker's use of stairs as "…personal routine task associated with routine daily living." She stated that the use of the stairs is part of the worker's job duties.

The worker's representative also disagreed with the suggestions in the claim file that the worker's injury may be related to her coughing and sneezing. She asked the worker questions surrounding this matter.

Employer's Position

The employer was represented by its Director of Health and Safety. He advised that the employer is asking the panel to maintain the Review Office decision. The employer representative posed several questions for the worker, through the presiding officer. He asked about prior injuries and claims and the worker's activities on October 21, 2004.

The employer's representative noted that before the hearing the worker's evidence was that she was not sure what caused her back pain. He stated that the employer was not aware of the accident until November 5, 2004 when advised by the WCB. He also noted that the early medical reports did not reference any incident, not even climbing stairs. He pointed out that the worker worked overtime on the day of the injury. He submitted that there was not a work-related incident or accident on October 21, 2004.

Analysis

The panel has considered all the evidence including the evidence provided at the hearing and has considered the positions of the parties. The panel finds, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of her employment and accordingly the claim is acceptable.

Regarding the worker's duties, the panel notes that the duties as a parts handler involve filling 60 to 100 orders each day. The parts can range up to 100 lbs in weight and jacks are used to move heavier parts. The parts are located on two floors with the heavier parts on the main floor and the lighter parts on the mezzanine floor. The worker gathers parts on both floors and ascends and descends the stairway between the floors 20 to 30 times each day. The panel finds that it is necessary to use the stairs to perform the job and that such usage is an integral part of the job.

At the hearing the worker provided a full explanation of the events surrounding the injury. The panel notes that some of the details provided by the worker at the hearing were not previously noted on the claim file, including the information regarding the worker's handling of two batteries before the incident on the stairs. The panel accepts the worker's evidence regarding her duties in general and her activities on the day of the accident. The panel finds that the worker suffered a work related accident with the first symptoms occurring when she moved and lifted the batteries and worsened when she descended the stairway with a basket of parts.

The panel notes that the description of the accident provided by the worker at the hearing is consistent with the description provided to the sports medicine specialist when he examined the worker on October 30, 2004. In a report dated December 8, 2004 the sports medicine specialist reported that the worker was "lifting at work".

The panel notes that there has been some discussion on the worker's cough and its role in the worker's injury. The sneeze/cough was noted by the treating physician and the treating chiropractor and was also referenced in the sports medicine specialist's report of December 8, 2004. The report notes that when examined on October 30, 2004 the worker "… indicated that she was coughing and sneezing which aggravated her back." The panel notes that the report does not indicate that the coughing/sneezing caused the injury and also that the sports medicine specialist concludes that "There does not appear to be any non-work related factors contributing to her injury." The panel accepts the worker's evidence provided at the hearing that the coughing/sneezing was not involved in the occurrence of her symptoms and finds that it did not cause the injury.

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2006