Decision #41/09 - Type: Workers Compensation

Preamble

This case was previously the subject of a file review at the Appeal Commission. In Appeal Commission Decision No. 05/08, it was confirmed by an appeal panel that the worker’s claim for compensation was acceptable. The accident employer’s representative disagreed with the decision and requested reconsideration pursuant to section 60.9 of The Workers Compensation Act (the “Act”). At a meeting held on November 3, 2008, the Board of Directors agreed to stay Decision No. 05/08 and a new hearing was ordered. A file review took place on March 12, 2009 to consider the issue as detailed below.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB claiming that he experienced spasms in his back on February 6, 2007 while driving and that it got to the point where he could not move. He then called his employer and an ambulance was sent. The worker indicated that he was fine when he went into work that day and that his back pain started in the middle of his shift.

The employer’s accident report dated February 26, 2007 indicated that the worker did not submit a green card but reported that his back got tighter and tighter while driving. When he reached a specific location at 15:50, the worker stalled the vehicle due to extreme back pain. The worker was unable to recall a specific event that caused his pain, only that the pain got to a level where it was unbearable.

When seen at a local hospital facility on February 7, 2007, the worker described the onset of low back pain while driving. No trauma was identified and the diagnosis outlined was low back pain.

On February 13, 2007, the worker’s treating physician reported that the worker was driving when he felt sudden pain. The diagnosis rendered was a lumbosacral strain.

A WCB adjudicator contacted the worker on March 2, 2007 to discuss his claim. The worker stated that he could not remember anything specific that caused his injury. The roads were not particularly rough. He drove a newer type of vehicle that featured a low floor and was shorter in length. The worker advised that he did nothing physical outside of work and did not participate in sports.

On March 12, 2007, the worker’s claim for compensation was denied as the adjudicator was unable to identify a mechanism of injury to account for his low back pain.

On April 10, 2007, a union representative provided the WCB with the name of a witness who helped the worker put the vehicle in neutral and apply the emergency brake. He also stated that he would provide information relating to the different runs the worker did that day and the air-ride seats. The union representative submitted that the presumption applied to this case as the worker got on the vehicle himself but was taken off by ambulance.

On April 16, 2007, the union representative contended to Review Office that a chance event occurred on February 6, 2007 where the worker suffered an accident as defined under subsection 1(1) of the Act. He submitted that the accident was a culmination of the ongoing operation of the vehicle over rough roads.

On April 26, 2007, a WCB adjudicator contacted the witness who stated that the worker was shifting in his seat and looked to be uncomfortable. As the vehicle turned, the driver started to stiffen. She initially thought it was a heart attack. The worker started to moan slightly and was turning very pale and looked to be in severe pain. The worker stopped the vehicle and instructed her to put the vehicle in park. The worker did not say what was wrong and it seemed that he could not really speak. The worker called his supervisor and she waited with the driver until the ambulance came. She did not notice anything unusual or out of the ordinary about the ride that day.

On May 7, 2007, the union representative was informed that the witness was contacted and she was unable to provide new information to warrant a change in the March 12, 2007 decision. On May 16, 2007, the union representative submitted to Review Office that the worker had already driven a number of hours prior to the incident and in the witness’ own words, the worker started to stiffen, moan and go pale. He said the contrary had not been proven so the claim was a just one and responsibility should be accepted for the claim.

A rebuttal submission was received from the employer’s representative dated May 31, 2007. In his view, there was no basis to vary the March 12, 2007 adjudicative decision. He stated that with the case at hand, the presumption was rebutted in that there was no evidence of a causal connection between the work and the injury. He stated the union provided the name of a person that they considered to be a witness to “the accident” on February 7, 2007 and that the witness clearly indicated that she witnessed an individual in distress but was not a witness to any specific incident.

On June 28, 2007, Review Office determined that the claim for compensation was acceptable. Given that the onset of symptoms occurred during the course of the worker’s employment and no other cause for the injury was apparent, Review Office said it must be proven that the accident did not arise out of the employment for the worker’s claim to be denied. It stated that while no incident at work or otherwise had been identified as the cause for the development of the worker’s symptomatology on February 6, 2007, it was most probable that the worker’s driving duties likely precipitated the injury sustained that day. The employer appealed the decision to the Appeal Commission and a file review took place on September 11, 2007.

Under appeal panel Decision No. 05/08 dated January 7, 2008, the appeal panel confirmed that the worker’s claim for compensation was acceptable. The appeal panel determined that while the criteria of subsections 1(1) and 4(1) of the Act were not fully met, the claim was nonetheless acceptable under the presumption provisions of subsection 4(5).

On March 28, 2008, the employer’s representative requested that Appeal Commission Decision No. 05/08 be referred to the Board of Directors for consideration pursuant to the provisions of WCB policy 21.10.10. The employer’s representative outlined the position that the appeal panel improperly applied the Act and WCB policy 44.05.

On November 6, 2008, the WCB’s general counsel & corporate secretary advised all parties that the Board of Directors considered the matter and in accordance with section 60.9 of the Act, the Board of Directors agreed to stay the Appeal Commission Decision No. 05/08 and ordered that a new hearing be conducted. A file review was than arranged for March 12, 2009.

Reasons

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

In this appeal, the panel must determine whether the worker was involved in an accident arising out of and in the course of his employment. The definition of “accident” is provided in subsection 1(1) of the Act as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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.

Subsection 4(5) creates a statutory presumption as follows:

Presumption

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

The employer’s position:

The written argument provided by the employer’s representative submitted that subsection 4(1) of the Act has no relevance to the issue under consideration. Specifically, this section simply enables compensation to be paid out of the accident fund where “personal injury by accident arising out of and in the course of employment is caused to a worker.” In order to qualify for benefits under subsection 4(1), one must first satisfy the prerequisites of subsection 1(1). It was submitted that in this regard, the best evidence was that there was no “chance event” that would satisfy the definition of an “accident”. The employer’s submission also alleged that the presumption in subsection 4(5) of the Act should not be invoked in this case because although the worker’s symptoms arose while he was in the course of his employment, the symptoms do not constitute a “chance event”. Symptoms are evidence of a medical condition. As there was no event/accident to which it could apply, the presumption was of no application.

The worker’s position:

The worker was represented by a union representative. Although a written submission was not provided to this specific appeal panel, previous submissions outlining the worker’s position were provided at the earlier stages of review. A detailed summary of the history of the claim and the worker’s job description was provided, including a description of the equipment used by the worker and its operation. The specific vehicles used by worker on the date of injury were detailed as were the driving conditions. It was submitted that a chance event did occur on February 6, 2007 and that the worker suffered an accident as defined under subsection 1(1) of the Act. It was further contended that there was a culmination of operating over rough roads and on a balance of probabilities, the rough road conditions were contributing factors if not the cause for the worker’s injury. In an addendum, it was also argued that as the vehicle turned onto a main street, a witness observed the driver was starting to stiffen and that he looked in severe pain. The union representative alleged that this constituted a specific location, time and description of a chance event, i.e. while the worker was engaged in the physical action of making the vehicle turn. This was an event that “arose out of and in the course of employment” and “a thing that was done and the doing of which arose out of and in the course of employment” and as a result of which the worker was injured. The claim should therefore be accepted.

Analysis:

In order to determine whether or not a person is entitled to compensation under the Act, five questions must be answered:

1. Was the person a worker?

2. Is the person in a covered industry?

3. Is there personal injury?

4. Was there an accident?

5. Did the accident arise out of and in the course of employment?

In this case, there is no question that the person was a worker and that he was employed in a covered industry. Accordingly, questions 1 to 2 are satisfied.

With respect to question 3, the diagnosis for the worker’s condition was not well defined. The emergency treatment record simply gives a generalized diagnosis of low back pain. The general practitioner reported the diagnosis as: “lumbo-sacral strain, rule out disc.” Although the medical practitioners did not provide a specific diagnosis for the worker’s condition, the panel is satisfied that the worker was experiencing symptoms which disabled him and we are able to find that there was personal injury to the worker.

Question 4 asks whether or not there was an accident. The term “accident” is defined in the Act, as set out above. As noted by Madam Justice Krindle in Dafoe v. Workers Compensation Board of Manitoba (1997), 119 Man. R. (2d) 111 (Man.Q.B.), the statutory definition of “accident” is broader than the normal usage of that word. In Dafoe, the court accepted that the statutory definition would cover:

  • A chance event (as per the ordinary understanding of the word “accident”);
  • A deliberate act of a third party under subsection (a);
  • A repetitive occurrence rather than a single event under subsection (b); and
  • An occupational disease under subsection (c).

In the panel’s opinion, the evidence in this case does not support the finding that an accident occurred within the meaning of the statutory definition.

We are unable to find that there was a chance event. A chance event would consist of a discrete, identifiable occurrence, such as a twisting motion which caused pain or an unusual jolt or movement. The worker’s own evidence does not support a finding of this nature. The worker advised the WCB adjudicator that he did not remember anything specific that caused the injury, that he was driving his usual run and that the roads were not particularly rough. The union representative’s submission contained a number of possible work-related causes for an injury occurring, such as improper seat adjustment, inefficient functioning of air ride suspension system or bumpy roads, all of which could cause the worker to jar his back. The worker’s own evidence, however, does not support that any of these events actually occurred. All he was able to say was that he was driving along and he started to get spasms in his back and that he really did not know what caused it. He was fine when he went into work and this happened in the middle of his shift. The union representative made the argument that an event occurred while the worker was steering the vehicle to turn onto the main street and that this was the “chance event”. The worker himself, however, did not identify anything unusual with the turning of the vehicle. Further, the worker described a gradually increasing pain throughout the course of his shift, as opposed to a sudden onset when he turned the corner. The witness’s evidence also confirms that she had noticed the worker shifting in his seat and appearing uncomfortable prior to turning the corner, after which he stiffened and was thereafter unable to drive the vehicle any further. Given the evidence, we cannot find that there was an identifiable chance event which would constitute an accident within the meaning of the Act.

Similarly, the panel considered whether or not it could be said that there was some sort of repetitive occurrence in the worker’s job duties which could constitute an “accident”. Again, the worker’s evidence does not support that there was any kind of action being performed by him which would enable the panel to find that an accident occurred. The worker indicated no issues regarding rough roads or bumpy rides which could somehow cause an injury through repetitive loading or force.

The panel did note that the medical report from the general practitioner dated November 16, 2007 indicated that the worker had been seen previously on October 17, 2006 for lower back complaints regarding mid-line back pain with associated limited movement and tightness. There was no WCB claim associated with this medical attendance. The panel finds it noteworthy that there had been some complaints of lower back pain by the worker to his physician less than four months prior, as this would lend support to the notion that the worker’s back condition was not caused by an acute chance event, but rather that there was symptomatology which was to some degree pre-existing.

Clearly, the accident categories of a deliberate act by a third party and occupational disease are not applicable to this case.

As we are unable to find that an accident occurred, we do not need to consider whether or not the accident arose out of and in the course of employment and whether the presumption contained in subsection 4(5) of the Act applies to this case.

For the foregoing reasons, we find that the claim is not acceptable. The employer’s appeal is therefore allowed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of March, 2009

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