The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and this panel are bound by The Workers Compensation Act (“the Act”) and by policies made by the Board of Directors of the WCB.

As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where a worker is injured by an accident arising out of and in the course of employment. For a claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident as follows:

"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;

Worker’s Position

The worker attended the hearing with a worker advisor who made a submission on her behalf. The worker answered questions posed by her representative and the panel. The employer was not represented and did not participate in the appeal.

The worker advised that she had been seeing the treating chiropractor since 1982. She attributed the first treatments to lifting and carrying her infant child. She advised that she continued to receive treatment on an occasional basis which she indicated was up to 14 treatments per year.

The worker described her duties with the accident employer. Her duties included showing apartments to the public, completing lease application forms, and delivering lease renewals to apartments in the complex. She noted there are over 300 apartments in the complex located in 3 storey walk-up buildings. She explained that in delivering leases she was required to open many heavy doors which involved turning a key and pulling the door open. She said each lease is approximately 3 pages and there are two copies in each envelope.

She advised that she injured her shoulder and back performing her duties in spring 2007. Her claim was accepted. She worked reduced hours and was not required to deliver leases.

With respect to the claim which is under appeal the worker advised that she injured her lower back performing her duties. The worker advised that she was delivering leases in late September when over a period of three nights she developed pain in her lower back. When she left work on the third night she felt a “pressure pain” or strong tension in her back. She woke up the next morning with a shooting pain which went down her back to her foot. This was different than her prior symptoms. She said there were 15 leases to deliver in September and that on her final night of work there were only 3 or 4 leases to deliver.

The worker also described an incident involving the balcony door on the office suite. She said she had difficulty closing the door on the last night of work and had to slam it shut three times before it closed properly. She believed that she had trouble with the door over a few nights. She said it was not a heavy door like the doors to the individual buildings on the complex.

In answer to a question from her representative she acknowledged that she had received a treatment from her chiropractor on September 17, 2007 which was before this injury occurred. She said that this treatment was for her upper back. The worker advised that she saw her chiropractor after the injury and continues to see her chiropractor for adjustments. When asked if the treatments she received for the lower back were different from those for the upper back, she replied that “I don’t know that they were necessarily different”. She also stated that she hardly remembered the chiropractor not adjusting her whole back in any treatment. She advised that on occasion she still has pain that goes down to her foot.

The worker acknowledged that her physician advised that she did have some degeneration in her back which was typical for anyone her age. She said that she was not provided with exercises or treatments for the degeneration.

The worker’s representative noted that the treating chiropractor provided a report dated December 19, 2007 which supported a causal connection between the worker’s injury and her employment. He advised that the worker is seeking wage loss benefits for a defined period.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful the panel must find that the worker sustained a personal injury by accident arising out of and in the course of her employment. In other words the panel must find that the worker injured her back in a workplace accident. The panel was not able to reach this conclusion. The panel could find no incident or incidents at work to explain the worker’s low back symptoms.

In reaching the above decision, the panel notes that over the three night period that the worker believes the injury developed, she was dealing with approximately 15 leases, which she described as “not a huge number…”. On the final night, September 27, 2007 the worker indicates she was only delivering 3 or 4 leases. The panel finds that this small number of leases is not heavy to carry and is not likely to cause an injury. As well, because of the small number of leases the worker was not required to open a large number of heavy doors. The panel notes that this description of her activities provided at the hearing differs somewhat from that provided in her report of injury. In any case the panel finds that her work activities did not cause an injury.

The panel notes that the worker has seen a chiropractor on a routine basis for treatment of her back for many years, commencing in 1982. The worker indicated that for the most part the treatment has remained the same and involves a whole back adjustment. In this regard, the panel notes that on September 17, 2007, slightly more than a week before the alleged incidents, the worker received a treatment from the chiropractor for a complaint of “lower back discomfort relating to work activities.”

The panel accepts that the worker’s symptoms as reported to the chiropractor and described at the hearing, increased after September 27, 2007, but the panel is unable to attribute the increase to the worker’s employment. However the panel notes the worker has a degenerative condition in her back and finds that this condition is a more likely cause of increased symptoms than the performance of her duties in September 2007.

The panel notes that at the hearing the worker referred to an incident involving difficulty closing an exterior door to the office suite. This was the first time that this incident was identified. The panel finds that the evidence on the claim file and provided at the hearing does not support a finding that this was a workplace accident.