The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

As stated in the preamble, this appeal deals with claim acceptability. Essentially, at issue is whether the worker’s back injury is, on a balance of probabilities, causally related to her employment. The worker says that it is; she says that she suffered an injury as a result of road conditions that she immediately reported to her employer and sought care for it. The employer says that it is not; it disputes that the road or vehicle conditions are likely to cause injury. It also questions the worker’s credibility.

Background

On March 1, 2006 the worker was driving a vehicle in the course of her employment. She went over a dip in the road for the eighth time that day at approximately 40 kmph and felt a sharp jabbing pain that caused her to scream out in pain. She stopped her bus immediately thereafter and called dispatch to advise that she had had an injury and could not move her back or legs. She eventually continued on to the end of her route where an ambulance was called and took her to the hospital.

The hospital report indicates that the worker was driving a vehicle, hit a pothole and immediately felt lower back pain. There was no pain radiation and the worker was able to ambulate. On examination she had full range of motion and normal strength. She was diagnosed with low back strain, prescribed pain medication and an anti-inflammatory and told to follow-up with her treating physician.

She did this the next day. Her chiropractor, who provided information at the panel’s request, indicated that he saw the worker on March 2, 2006 who complained of severe low back pain. She related the March 1, 2006 incident where she felt pain “immediately and suddenly when the [vehicle] she was driving hit a ‘harsh’ dip in the road”. He diagnosed her with “a very acute low back injury to the L4-L5-S1 region complicated by soft disc bulge symptoms”.

The worker was later referred for physiotherapy. The physiotherapist’s initial assessment of March 13, 2006 queried a diagnosis of compression injury and an acute disc or end-plate injury.

The worker’s claim was investigated by primary adjudication. A witness to the worker’s accident was contacted. He was able to confirm the worker’s version of events. He was not however able to pinpoint a significant jarring or impact just prior to the worker’s complaints but did say that the ride was “as per usual with a few bumps in the road”. The primary adjudicator denied the worker’s claim as it was her opinion that there would have had to be a “fairly significant” impact to cause an injury. Though she did not dispute that the worker had back problems, she could not establish that an accident occurred during the course of her employment. This decision was upheld by Review Office.

The employer concurred with WCB’s decision to deny the worker’s claim. While it acknowledges the “dip in the road” referred to by the worker, it says that the dip in the road is not likely to cause injury. Further, while it acknowledges that the vehicle the worker was driving had a “flat” seat and defective rear shocks, it says that neither of those should have had any impact on the worker. It says that the defective shocks were leaking but not a great deal. It did replace them though it was because they were still on warranty. Further, there were four other shocks to compensate. No supporting documentation was provided about the shocks or the degree to which the seat had been decompressed to render it “flat”.

Analysis

Subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”) provide that to be compensable, the worker must suffer personal injury arising out of and in the course of employment. To accept the worker’s appeal, this panel must find, on a balance of probabilities that the worker suffered an injury to her lower back on March 1, 2006 arising out of and in the course of her employment. We are able to make that finding.

The undisputed evidence before us is that the worker was driving in the course of her employment when she went over a dip in the road and felt immediate lower back symptoms. These symptoms were immediately reported to her employer and she immediately received medical treatment for them. These symptoms were diagnosed as a lower back strain/compression injury. Based on this evidence alone, the legal test enunciated in subsections 4(1) and 1(1) of the Act have been met.

To be clear, the Act does not require a “significant” event for an injury to be accepted. It also does not require an event that is likely to cause injury. It only requires a finding that in the particular case before us this particular worker more likely than not suffered injury arising out of and in the course of her employment. While a worker’s credibility might in some circumstances be called into question, and in particular where a relatively minor incident occurred, we do not find any evidence in the case before us that would call into question the worker’s credibility.

For these reasons, we find on a balance of probabilities that the worker did suffer an accident within the meaning of the Act and that her claim is acceptable.

Accordingly, the worker’s appeal is accepted.