The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

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 presentation on her behalf. The worker answered questions from her representative and the panel.

In answer to questions the worker described her job duties as a dietary aide. She described the incident which led to her injury. She said that a co-worker pushed a cart into her back. She said she saw the co-worker removing her hand from the cart handle when it hit her back. She believed that the co-worker intentionally pushed the cart into her back. In addition to the cart hitting her, she said that two lids hit her left shoulder. She thought the co-worker threw the lids but acknowledged that she did not see the co-worker throw them. She was unsure of the weight of the lids but did not dispute the employer representative’s estimate that the lids weighed under one pound, although she thought some new lids are heavy.

The worker advised that she and the co-worker have had problems in the past. She said that she is afraid of the co-worker.

The worker’s representative submitted that the information confirms there was an incident at work. He noted that the worker believes the co-worker intentionally pushed a cart into the worker’s back and that the co-worker denies she did so. He stated that whether it was intentional or not, there is evidence to confirm that the cart did strike the worker.

The representative submitted that the worker’s evidence has been consistent and that the co-worker’s evidence is full of inconsistencies and should be regarded as highly suspect.

The representative submitted that medical evidence establishes that the worker suffered an injury following the incident. He noted that the doctor’s first report provided a reported mechanism of injury consistent with the worker’s description and provided objective evidence of an injury.

Regarding the investigations by other parties, the representative noted that the other parties were considering whether the co-worker’s actions were deliberate while the WCB need only find that the incident occurred and the worker was injured. He said it was irrelevant whether it was intentional or accidental.

In a written submission dated August 6, 2008, the worker’s representative argued that while the information from the treating specialist, obtained by the panel after the oral hearing, provides insight into the worker’s medical history, it does not speak to the issue of whether the claim is acceptable.

Employer’s Position

The employer was represented by an occupational therapist and its executive director.

The occupational therapist made a presentation on behalf of the employer. The representative noted that the worker did not report the incident at the time and continued to work her regular duties on July 29, 30 and August 2.

He submitted there is no evidence to support that the incident reported by the worker occurred as described by the worker. He noted that several parties: the Winnipeg Police Service, Manitoba Human Rights Commission, WCB and the employer, investigated the worker’s allegations and independently reached the conclusion that there was not enough evidence to support the worker’s version of the incident.

The employer’s representative noted that the co-worker denies the worker’s allegations and that other workers were unable to corroborate the worker’s version of events. He stated there is very little objective medical evidence to support the worker’s claim beyond her subjective complaints of pain.

The employer representative acknowledged that the evidence establishes that some sort of altercation occurred but not in the manner described by the worker. He said there is a personality dispute between the worker and co-worker and that steps have been taken to address this.

Analysis

The issue before the panel was whether the worker’s claim is acceptable. For the appeal of this issue to be successful, the panel must find that the worker suffered personal injury by accident arising out of and in the course of employment. The panel did find that the claim is acceptable as it involves an injury to the worker’s low back. However, the panel did not find that the worker sustained an injury to her shoulder and neck while at work.

The panel finds, on a balance of probabilities, that the worker was struck from behind by a cart while working and injured her low back. The panel accepts the worker’s evidence that a cart hit her in the back. The panel notes this is consistent with the worker’s description of accident provided to her physician on August 3, 2006. The panel notes that the worker claimed a co-worker intentionally pushed the cart into her back. In a report to the police, the co-worker acknowledged that she kicked a cart that was blocking her way but denies that it hit the worker. The panel accepts that the cart hit the worker in the low back area and that an accident occurred, however, makes no finding on whether the cart was intentionally pushed into the worker.

To find that there is an acceptable claim, the panel must find that the worker sustained an injury. The panel was able to find that the worker injured her low back but did not find any other injury. In making this decision the panel notes that the worker saw her physician on August 3, 2006, and reported that she was “struck with a cart in the lower back”. The diagnosis provided by her physician is a low back strain. The physician refers to objective findings to support this diagnosis. However, the panel notes there are no other accidents, injuries or symptoms noted.

Regarding the extent of the injury, the panel finds that the injury to the low back was not significant. The worker was able to work at her regular duties on July 29, 30 and August 2 before seeing her physician on August 3, 2006. The physician diagnosed a low back strain. The panel notes that in an August 9, 2006 report, the physician states the worker is not able to work and is not likely to return until after September 5, 2006. On August 29, 2006 a WCB staff member wrote to the physician and asked him to identify medical restrictions. The physician noted in a report dated September 6, 2006, that the worker was disabled and was not able to resume modified duties but did not identify restrictions on her return to work. In the opinion of the panel, these reports do not suggest a serious long term disability. The panel also notes there is evidence of a pre-existing condition and that the specialist who treated the worker before and after this injury commented in a September 27, 2007 report, that the worker had low back pain 15 years ago followed by occasional episodes of low back pain that have lasted for a few months. The medical information on the file does not suggest a sustained aggravation of the worker’s back but rather a pattern of exacerbations of low back symptoms which resolved relatively quickly. The panel notes that this pattern continued subsequent to this incident.

Dealing with a possible neck injury, the panel notes that the worker’s physiotherapist reported to WCB staff that the worker sustained a whiplash sort of injury. He said that when she was hit by the cart her head would have gone back causing a strain to her neck. The panel does not place any weight on this explanation as it does not find that the blow from the cart was of such intensity as to cause a whiplash injury and finds that the worker did not injure her neck in the accident. As noted previously, the worker did not complain of a neck injury when she first saw her physician after the accident, and in fact worked her regular duties subsequent to the workplace incident.

Dealing with a possible shoulder injury, the worker also complained of shoulder problems arising from being hit in the shoulder by plate warming lids which she thought the co-worker had thrown at her. At the hearing, the worker told the panel that she did not see the co-worker throw the lids. The panel is unable to find that the worker was injured by lids hitting her left shoulder. In reaching this decision, the panel notes there is no mention of a shoulder injury or being hit by lids when the worker reported to her physician. As well, there were no findings pertaining to the shoulder area, and no medical evidence or diagnosis on file to support a causal relationship between the worker’s ongoing shoulder complaints and the alleged mechanism of injury.