The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

For the worker's claim to be accepted the worker must have had an accident as provided in subsection 1(1) of the Act and the accident must have arisen out of and in the course of employment as provided in subsection 4(1) of the Act.

Accident is defined in subsection 1(1) of the Act as;

"accident" means 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 worker’s representative has suggested that the worker aggravated his pre-existing back injury. If the panel were to make this finding, WCB Policy 44.10.20.10 which deals with claims involving pre-existing conditions, would apply.

Worker’s Position and Evidence at Hearing

The worker attended the hearing with a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.

Regarding his employment with the accident employer, the worker acknowledged that he was employed as the meat, deli and produce manager from May 9, 2005 until November 28, 2005. He provided a detailed account of physical aspects of his duties as a manager. He advised that much of the physical work arose from the delivery of new stock to the store and the shifting of old stock. He advised that being the manager he wanted to make a good impression and so he unloaded most loads when stock came in. He described the motions used in unloading pallets of stock.

The worker advised that his back was “Okay” when he started work in May 2005. He advised that if he got any sharp pain he would take medication. He also advised that he did not seek any medical assistance when he started work with the accident employer.

The worker advised that in the fall the store was short-staffed and that his workload increased. He said it was twice the amount of work. He indicated that this was the case for approximately six weeks.

The worker described an incident where he was moving a box of cabbage which weighed approximately 75 lbs. and twisted his back. He confirmed that this incident likely occurred in late September 2005. He advised that this caused a sharp pain that went down his lower back, down his legs and into his groin area.

The worker advised that after the specific incident and after the period of increased workload his back was getting worse. He saw his physician at this time which he stated was in October. He asked his physician for more medication.

The worker indicated that he told a co-worker about the specific incident the day after it occurred. He also stated that he told the employer about his back injury when he could no longer work.

In answer to questions from the panel, the worker provided an employment history and description of his back condition before May 9, 2005. He advised that he was first prescribed the current medication in 2004 or 2005.

The worker was asked about the condition of his back before he started work on May 9, 2005. In particular he was asked about information on his claim form that indicated that at his prior job he “…was on so much (medication) that I could not feel the pain.” The worker advised that he may have been confused and was referring to his condition while working with the accident employer.

He was also asked about information on his accident report that in February 2005 he was taking medication on a regular basis. He advised that he was taking the medication as needed but not on a regular basis.

He advised that he worked at his prior job full-time five days a week with little missed time. He accepted the job with the accident employer because it was a good opportunity.

Regarding his pain, he advised that the pain got worse for a period of time after he stopped working. He advised that he has less pain now but that he takes medication every day.

The worker advised that he saw a neurosurgeon who advised him that surgery was not warranted. He advised that his physician prescribed physiotherapy which was arranged through a healthcare facility but that he declined the treatment as he did not feel that he could participate in the type of treatment that was offered.

The worker’s representative submitted that although the worker has a pre-existing condition, he was able to work for his previous employer with the periodic use of medication and stretching. He noted that the worker completed very heavy duties with the accident employer without ongoing problems until September 2005 when the store was short staffed and the worker’s workload increased. He noted a gap in medical from May to September 2005 during which he stated the worker’s back was stable. He stated that in September when the worker’s back pain increased he again attended his physician.

The representative submitted that “This is in keeping at least with an aggravation of his back condition through his workplace duties and a specific accident that the claimant has provided details on …”

The representative stated that the worker gave his employer notice that he was not able to work due to back pain, but did not recall the specific incident in the cooler and did not know that his job duties themselves could give rise to an acceptable claim. The representative submitted that the worker’s claim is just and should be allowed under the Act.

In answer to a question regarding medical support for the worker’s claim, the representative referred to a report by the treating physician dated January 31, 2006 where the physician wrote “low back pain exacerbated by lifting meat at work.”

Analysis

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 sustained personal injury as a result of an accident that arose out of and in the course of his employment. In other words the panel must find a link between the worker’s injury and his employment. The panel was not able to find a link between the worker’s injury and his employment. The worker’s representative suggested that the worker’s workplace duties aggravated his pre-existing back injury. The panel was not able to make this finding. The worker’s claim is not acceptable as an aggravation of a pre-existing condition.

The panel finds, on a balance of probabilities, that the worker’s claim is not acceptable. In reaching this decision, the panel relies upon information in the file including the Worker’s Accident Report dated December 7, 2005. The panel notes that the worker contacted the WCB which completed an accident report with information provided by the worker. This report indicated that:

• prior to working for the accident employer the worker was on so much medication that he could not feel the pain.

• the worker’s back problem started in 1991 and has gone down hill from there.

• the worker has always had problems with his lower back since 1991 but taking (medication) helped with the pain so he could do things.

The worker was asked about the information in the report and indicated that he may have been confused in providing some of the information and could not explain why he would indicate that he used the medication on a regular basis. The panel also notes that the accident report did not refer to the specific incident involving the lifting of a box of cabbage. The panel places more weight on the accident report which was provided shortly after the worker stopped working than on subsequent information.

The panel also notes the employer’s report of injury which indicates that the employer was informed of an existing back condition at the time they hired the worker.

The panel notes the narrative report of the treating physician which confirms the worker’s pre-existing condition and indicates the worker first presented to the physician in December 2003 complaining of chronic low back pain for several years. The report also lists a history of attendances at the physician’s office that confirms a chronic low back condition which impacted the worker’s ability to work at various times prior to May 2005. The report notes attendance by the worker in September and October 2005 but does not identify any work related cause.