Decision #03/10 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that she related to her job duties on September 17, 2008. Her claim for compensation was denied by primary adjudication and Review Office on the grounds that there was insufficient evidence to establish a relationship between the worker’s low back difficulties and an accident as defined under the Government Employees Compensation Act (“GECA”). The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on November 12, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker reported that she injured her low back area on September 17, 2008 during the course of her employment. The worker described the accident as follows:

“I first noticed it near the end of my shift. Near the end of my shift I noticed my back was sore. I might have turned the wrong way but I wasn’t sure what caused this. It started out as mild but was very specific in the lower back then it wrapped around to the front. I am going for a cat scan today because it is in such a localized area. As soon as I quit moving then it was worse. I went to see a dr. and reported it the next day. I was picking up some heavy loads that day which I have done before also. It was also cold and damp that day. It was kind of raining, misty and cold. I might have twisted or turned the wrong way that day. I honestly do not know.”

On September 26, 2008, a WCB adjudicator spoke with the worker by telephone. The worker indicated that her back was fine at the beginning of her shift. By the end of her shift, she noticed back pain that progressively worsened within an hour and a half. The worker indicated that she had prior back problems 33 or 34 years ago while tobogganing but no problems since. The worker indicated that she does weight lifting and had been diagnosed with osteopenia. She has worked with the accident employer for 26 years. There had been no changes in her job but she has had heavier days in the past.

Medical information showed that the worker attended a chiropractor on September 17, 2008 for “insidious onset of right hip pain and stiffness”. The diagnosis rendered was a low back strain/sprain.

In a doctor’s first report dated October 8, 2008, the treating physician reported that the worker was seen for treatment in September 2008 (no exact date recorded) for an exacerbation of pain after a trip into and out of Winnipeg on September 20. The worker reported intense low back pain, right lower quadrant abdominal pain, right groin pain and right anterolateral thigh pain. The diagnosis rendered was discogenic low back pain. The physician indicated that the worker had a CT scan which was inconclusive and that another doctor had arranged for an MRI.

A CT scan report of the thoracic and lumbar spine taken September 26, 2008 showed mild facet degenerative changes within the mid lumbar spine. The L1-2 levels were unremarkable.

An MRI of the lumbar spine dated October 27, 2008 revealed a disc annular tear and mild disc bulging at L5-S1.

In a Doctor First Report dated October 22, 2008, the physician reported that the worker complained of low back pain with intermittent radiation to her groin and down into her thigh. The diagnosis rendered was right sciatica.

On November 13, 2008, an employer representative outlined the position that the worker’s claim did not meet the requirements of subsection 4(1) of The Workers Compensation Act (the “WCA”), as no specific incident or traumatic event had occurred. It was indicated that: “Pain does not constitute a workplace injury without the employee being able to identify a specific incident.”

A WCB medical advisor reviewed the file on November 19, 2008 and provided the opinion that there were no patho-anatomic abnormalities to account for the worker’s reported symptomatology. She stated that although an L1-2/L2-3 radiculopathy had been proposed by the treating physician as a likely diagnosis, there had been no neurological findings described at any point and there was no radiological abnormality at either L1-2 or L2-3 on either the September 26, 2008 thoracic/lumbar CT or the October 27, 2008 lumbar MRI. Therefore a radiculopathy was unlikely. The medical advisor also was of the view that a strain was unlikely given the worker’s symptoms of pain in the abdomen. She indicated that the worker’s symptoms of right lower quadrant abdominal pain, right groin pain and numbness of the right anteror-lateral thigh were unlikely related to the annular tear noted at the L5-S1 region.

On November 20, 2008, a WCB adjudicator spoke with the worker to advise that her claim for compensation was disallowed as there was no reported mechanism of injury and the symptoms described were not consistent with the diagnosis. The worker advised the adjudicator that she thought about the date of injury and she thinks she injured her back at the end of her shift while using a relay box. She stated that the key to unlock the relay box is attached to her pants. The key remains in the lock of the box while she retrieves bags from within the box which required her to twist her back. The worker stated that she did not feel anything initially but started to experience back pain approximately 30 minutes afterwards.

On December 3, 2008, a WCB adjudicator advised the worker that she discussed the new mechanism of injury with a WCB medical advisor and it was still the medical advisor’s opinion that the worker’s symptoms did not relate to the diagnosis on file. In a decision dated December 3, 2008, the worker was advised that a relationship between the development of her low back difficulties and an accident “arising out of and in the course of” her employment had not been established.

On December 29, 2008, the worker submitted to the WCB a report from her physiotherapist dated December 11, 2008. The physiotherapist outlined the view that the stresses of the worker’s job duties, i.e. walking several miles a day, 5 days per week, carrying 30 to 35 pounds of weight and the repetitive bending and twisting, was responsible for the worker’s onset of symptoms.

In a letter dated December 31, 2008, the WCB advised the worker that there was no new information to support a work place injury and that no change would be made to the decision of December 3, 2008.

In a submission to Review Office dated February 18, 2009, a worker advisor asked for reconsideration of the WCB’s decision dated December 3, 2008. The worker advisor submitted that the worker experienced an onset of low back symptoms that progressively became worse while performing her job duties on September 17, 2008. The worker reported the incident to her employer and sought immediate medical attention. Based on these factors, the worker’s claim met the requirements of the Act and should be accepted.

On March 18, 2009, the accident employer submitted to Review Office that the decision to deny the claim should be upheld as no specific incident, accident or traumatic event had occurred during the worker’s employment.

In a decision dated April 8, 2009, Review Office made the determination that the worker’s claim for compensation was not acceptable. Review Office indicated that there was insufficient evidence to support that the worker’s low back difficulties were related to the relay box as the worker did not experience any pain until 30 minutes after performing this job duty. Review Office noted that the worker waited three months to report this as the cause of her difficulties. Review Office found insufficient evidence to support a causal relationship between the worker’s low back difficulties and an accident as defined under the GECA. On May 29, 2009, the worker appealed the decision made by Review Office to the Appeal Commission and a hearing was arranged.

Following the hearing held on November 12, 2009, the accident employer’s representative was given the opportunity to comment on medical literature that was referred to at the hearing by the worker. On November 18, 2009, the employer’s representative provided the appeal panel with her final submission. On November 20, 2009, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable legislation:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the GECA. Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

The issue to be determined by the panel deals with causation and whether the worker’s low back pain was caused by an accident arising out of and in the course of her employment.

The worker’s position:

The worker was assisted in her appeal by a worker advisor. It was submitted that the worker experienced a gradual onset of low back symptoms while in the course of her duties on September 17, 2008 and that her claim met the definition of an accident under both the GECA and the WCA. The worker reported her injury to her employer and sought medical attention from a chiropractor on the same day of the injury. While acknowledged that the pain generator and diagnosis in the worker’s case were debatable, there is enough information on the mechanism of the worker’s duties to lead the panel to conclude on a balance of probabilities that the worker injured herself during the performance of these duties.

The employer’s position:

A representative from the employer was present at the hearing. It was submitted that the worker’s duties were no different and no heavier than most other employees in her position. The job duties did not constitute repetitive stresses on the worker’s tissues on a daily basis, as argued by the worker. In order to accept that the worker’s low back pain was the result of workplace activities, a cause and effect relationship must be determined. It was submitted that this cannot be done without evidence of a workplace incident or a recent change in the worker’s duties. Pain itself does not constitute a workplace injury without an employee being able to identify an incident. The employer’s position was that, based on a balance of probabilities, the worker’s back pain was the result of non-occupational issues rather than a work-related issue.

Analysis:

In order for this appeal to be successful, the panel must find that the worker’s medical condition arose out of and in the course of her employment. On the basis of the evidence before us, the panel is satisfied on a balance of probabilities that the worker suffered an acute injury at work on September 17, 2008, which caused her to develop difficulties with her low back.

In coming to our conclusion, the panel relies on the following:

  • At the beginning of her work day, the worker was not experiencing any significant problems with her low back. At the hearing, the worker candidly admitted that she had experienced some soreness in her back in the past, but indicated that this pain was different in nature;
  • On the date of the accident, the worker sought treatment from her chiropractor who provided a diagnosis of low back strain/sprain;
  • At the hearing, the worker described the duties which were performed by her on the date of the accident, which included lifting, dragging and swinging canvas bags which weighed up to 35 lbs. The panel accepts that these job duties could involve an unintended or inadvertent motion capable of causing a back strain injury and that the pain from such injury may only manifest later in the day;
  • The worker’s evidence was that she has changed her lifting practices since her return to work and has not had a recurrence of this type of injury;
  • We note the evidence regarding a trip which the worker took on September 20, 2008, which required her to sit in a car for over 7 hours. The attending physician noted that the worker suffered an exacerbation of her pain. The panel accepts that the worker’s condition may have worsened as result of this incident and this may explain why her symptoms were more extensive than the type of symptoms normally associated with a simple back strain.

Overall, the panel finds that the worker suffered an acute back strain/sprain injury on September 17, 2008. At the hearing, it was submitted on behalf of the worker that the accumulation of the worker’s physical job stresses over time caused the injury, but the panel does not accept this position. Our acceptance of the claim is based on the worker suffering an acute injury, as opposed to a repetitive strain type injury.

It was also submitted by the worker advisor that the disc annular tear at the L5-S1 level which was identified in the MRI of October 27, 2008 was caused by the compensable injury. The panel does not accept that the annular tear was an acute injury suffered by the worker on September 17, 2008, as the immediate symptoms she experienced following her shift were not consistent with an annular tear. The panel finds it is more probable that the worker suffered a mechanical back strain/sprain injury which caused some immediate and referred pain, and which resolved in a matter of months after receiving physiotherapy targeted at her low back area.

Given our conclusion that the annular tear is not compensable, we need not consider the reliability/impact of the medical literature submitted by the worker regarding disc anatomy and pain pathways. The panel notes that it had reservations regarding this literature given that the material was not obtained from a generally recognized peer-reviewed medical source, but rather was obtained via the internet.

Based on the foregoing, the panel finds on a balance of probabilities that the worker did suffer an injury arising out of and in the course of her employment on September 17, 2008. We therefore find that her claim is acceptable. The worker’s appeal is accepted.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of January, 2010

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