The Appeal CommissionThe Workers Compensation Act of Manitoba

On October 31, 2005, the worker filed a claim with the WCB for a sprain/strain to her neck and back. The investigation of the claim by the WCB revealed the following details of the worker’s alleged injury:

• On October 27, 2005 the worker told her employer that at the end of her shift on October 27, 2005 she experienced pain in her back, neck and head while standing;
• On October 27, 2005 she only worked part of her shift because of discomfort and went to see her chiropractor who filed a report with the WCB on November 1, 2005;
• On October 31, 2005 the worker filled out a WCB claim and a short term disability form at work. The WCB claim was not filed until November 10, 2005. Another WCB claim was made directly by the worker with the WCB on November 7, 2005. The October 31, 2005 WCB claim states that the worker was stocking all day then she was standing when her back felt really sore and she got sharp shooting pains in her back, neck and head. The November 7, 2005 WCB claim only notes that she was standing waiting for her shift to end. She surmises that she might have twisted the wrong way;
• A November 14, 2005 WCB memorandum to file clarifies that the worker was stocking cigarette cases weighing 35-45 pounds each on that particular day. She had been working at her job for approximately 12 years and had never had a problem before. She was unsure why she had a problem this particular time;
• A November 18, 2005 WCB memorandum to file recording a conversation with the employer confirms that the worker was moving cigarette cases all day and that the cases weighed between 20 and 40 pounds;
• A November 22, 2005 WCB memorandum recording a conversation with the worker notes that approximately one hour before the end of her shift she began to feel a shooting pain up to her neck and head area;
• A December 5, 2005 WCB memorandum recording a conversation with the worker notes that about 10 minutes after stocking the last carton she began to feel pain in her back and neck;
• A January 19, 2006 examination note by a WCB medical advisor indicates that the worker removed a crate from a level above her head by pulling forcefully on it to bring it from the top of the stack. Within ten minutes she developed generalized spasm-like pain throughout her back and neck.

Employer’s Position

The employer’s representative submits that the weight of the evidence does not support that there was a workplace accident. It relies essentially on the lack of repetitive stocking throughout the shift or of a specific accident contemporaneous to the onset of the worker’s symptoms as well as “irregularities” in reporting.

Worker’s Position

The worker submits that her claim is acceptable given that her injury occurred during and in the course of her employment.

Analysis

Subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”) provide that for an injury to be compensable it must arise out of and in the course of employment. In the case before us, we find that the worker did suffer an injury arising out of and in the course of her employment.

The evidence is that the worker spent the majority of her shift stocking cigarette cases that weighed between 20 and 40 pounds. Though the worker’s evidence as to the onset of her symptoms was divulged piecemeal, we find that it is nonetheless consistent: the worker pulled a cigarette case to the front of the shelves. Ten minutes later and an hour before her shift ended she was standing around when she experienced pain in her back and neck.