The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker in this case had an onset of back pain while he was performing his job duties as a driver. This case turns on whether his injury is causally related to his employment. To date, the WCB has found a causal linkage and has accepted the worker’s claim. This is an employer’s appeal of that claim acceptance, by way of a file review. For the employer’s appeal to succeed, the panel would have to find, on a balance of probabilities, that the facts of this case do not support that there was a workplace accident under the Act.

The Parties’ Arguments:

Employer’s position:

In its submission of September 4, 2007, the employer stated the Review Office incorrectly used the presumption section of the Act to draw the evidentiary conclusion that an event occurred or a thing was done. The employer argues that this section was not created for that purpose. The employer’s position was that no part of the definition of accident had been satisfied and thus there was no basis for the application of subsection 4(5) which appeared to be the sole basis for the Review Officer’s decision. A second submission after the circulation of medical information to the parties reiterated this position.

Worker’s position:

In its submission of September 4, 2007, the union representative stated that subsections 1(1), 4(1) and 4(5) were relevant to this case. He stated that the witness’ description of events was sufficient to identify an accident as defined under subsection 1(1), as a chance event that occurred at and in the course of employment.

Legislation:

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

Subsection 4(1) is clear that both parts of the test must be met: firstly, it must arise out of, and secondly, be in the course of the worker’s employment.

Subsection 4(5) sets out a “presumption” where there is evidence available as to one part of the test and none whatsoever regarding the other part of the test. Under these circumstances, the presumption applies, and allows for the establishment of a workplace accident.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides the following clarification of the terminology used in these sections of the Act.

“Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The Workers Compensation Act provides that where the accident arises out of employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven; and where the accident occurs in the course of employment, it shall be presumed that the accident arose out of employment unless the contrary is proven.”

Within the facts of this case, subsection 4(5) has been applied by the Review Office to accept the claim, with findings that the worker’s injuries had arisen in the course of employment, and there being no evidence to rebut the presumption that they arose out of the employment as well.

Analysis:

For the panel to continue to accept this worker’s claim, it would have to find that the worker’s back condition arose both out of and in the course of his employment, or in the alternative that the presumption clause in subsection 4(5) applies and its criteria are met.

After a careful review of the file evidence and the submissions of the parties, the panel has determined that while the criteria of subsections 1(1) and 4(1) of the Act were not fully met, the claim is nonetheless acceptable under the presumption provisions of subsection 4(5).

The evidence in this case discloses that the worker suffered a significant and rapid onset of back pain in the middle of his work shift, and in fact while performing his specifically assigned job duties as a driver.

The panel thus finds that the second part of the test described in subsection 4(1) of the Act – “in the course of employment” – is satisfied. It is clear that the worker’s symptoms came on while he was at work. He had started the shift fully functional, and suffered an onset of low back symptoms later in his shift, within a very short period of time, to the point where he was required to stop the vehicle, and be transported by ambulance to a hospital. A passenger was an independent witness to these events.

The first part of the test described in subsection 4(1) of the Act -- “arising out of” -- is the more problematic. As noted in WCB Policy 44.05, this criterion requires that there be evidence that the injury was caused by some hazard which results from the nature, conditions or obligations of the employment.

The panel has reviewed the evidence on the file and the arguments of the parties on this point, and notes that both the worker and the witness were queried at various points, and neither indicated any issues regarding rough roads or bumpy rides, nor was there any indication on the file of any mechanical problems with the seats or suspensions or any other hazard that could have led to the worker’s increasing back pain. The panel notes that the worker’s union representative has submitted that a variety of events could have happened, including long stretches of drives over rough roads, or potential issues associated with shorter wheel length buses, as well as general comments about driver seats. There is, however, no evidence before us that any of these events actually took place. Thus, it becomes difficult for the panel to find factual circumstances leading to either a traumatic injury or a gradual onset condition arising from the worker’s job duties.

During its deliberations, the panel recognized that the file contained very little information regarding the worker’s actual medical condition, test results, or prior medical history, and that it would be helpful to gain a better understanding of the etiology of the worker’s back condition, if available. Using its enquiry powers, the panel sought additional information from the worker’s treating medical practitioners, which was shared with the parties for comment.

After review of the medical information, the panel notes that the medical evidence on the file also fails to disclose any factors supporting either a work-related or non-work-related cause for the rapid onset of low back symptoms while the worker was on the job.

As such, after a review of the arguments and evidence regarding job hazards, job duties, and medical conditions, the panel finds no identifiable causes to account for the onset of symptoms occurring while the worker was in the course of his employment. Under these circumstances, the Act obliges the panel to apply the presumption set out in subsection 4(5): “Where the accident occurs in the course of employment, it shall be presumed that the accident arose out of employment unless the contrary is proven.” In this case, the evidence is not available, on a balance of probabilities, to prove the contrary.