The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

In considering any appeal, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

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

The Board of Directors of the WCB has passed WCB Policy No. 40.05.20, General Premises, which states that “in the course of employment” is not limited to the actual tasks or exact hours of work. The policy purpose also states that going to and from work is covered while on the employer premises, and the policy then sets out how far this extension might go.

Section 7 of the policy, titled “Personal Hazards” also distinguishes between activities incidental to the employment while on the premises (would qualify as an accident) and injuries resulting from personal causes (would not qualify as an accident).

Worker’s evidence and argument:

The worker was assisted by legal counsel in the presentation of his appeal. The lawyer noted credibility issues that had impacted on the adjudication of the claim. He stated that the worker was prepared to take responsibility for what had happened earlier in his employment history, but that there was nonetheless a legitimate workplace accident on August 30, 2007.

In particular, the presentation focused on an earlier incident, about two months prior to the accident, in which the worker had been caught in a lie. In early July 2007, the worker was given an excused absence to attend a family funeral. On his return, the worker gave a medical note to his supervisor that he had bruised his tailbone while he had been on a boat trip during his absence. The worker advised the panel that there was in fact no such boat trip and no bruised tailbone. The worker provided detailed evidence at the hearing regarding the funeral, and his discovery of very unfortunate circumstances surrounding the death that affected him very deeply. He advised that on his return home, he was not ready emotionally to return to work, and had manufactured a medical excuse to a doctor at a walk-in clinic in order to get a couple extra days off. However, his supervisor (correctly as it happens) did not believe his story, and as a result there were trust issues in their relationship. Counsel’s position was that this later affected the management of this claim.

The worker also provided evidence as to the job duties he was performing at the time of his injury. The job task involved tagging the ends of long metal parts that were laid out in rows on the factory floor. The worker was required to move methodically down the row, and to peel and place adhesive identifier tags on the ends of those pieces. The parts sit on the ground and are low to the ground. Although there is confusion on the file as to the amount of time spent during the day doing this job, the worker’s evidence at the hearing was consistent with earlier information provided by the employer that this job was always done in the last half hour of the work shift. The worker advised that there was no preset way of doing the tags because of the awkward nature of the task; workers have their preferred methods and sometimes try out new ways to get the job done faster. Workers can sit on the ends of the pieces and lean down between their legs to put the tags on, or stand and bend facing forward to put them on, or even stand facing away and then bend and reach backwards through their legs to put the tags on. The worker advised that he did not do this job often, and was using this last method (at the suggestion of a co-worker) on August 29, when he straightened up too quickly and felt a pop in his back. He did not complain to his co-workers while leaving the shop area with them.

The following day, August 30, he was able to do his job duties. On August 31, the worker advised that the problem worsened after he walked to work for the start of his work shift. He was in the locker area when he bent over to tie his work shoes. In response to questions from the panel, he advised that the work shoes had a special lip on them to protect the top of the foot from injuries that could result from dropped heavy objects. The laces are underneath the lip. In the process of bending over to tie his laces, he experienced a sharp pain which worsened considerably after he stepped outside the locker room. It was at this point that the worker required assistance from other workers to get to the office, following which he was taken to a walk-in clinic and then a hospital for medical treatment.

While he was at the office, he informed his supervisor for the first time of the onset of pain he experienced while tagging two days earlier. The worker advised that his supervisor in the office then tried to attribute this injury to his July boating injury. The worker’s evidence was that the supervisor had later filled out the form, but had refused to write the story correctly.

Employer’s Position

The employer was represented by an legal counsel at the hearing. His submission focused on inconsistencies in the worker’s evidence in the file, including: the July boat trip injury; the number of hours per day that the worker was tagging; the number of potential sources for the injury identified by the worker over the three days of work; the lack of corroboration by co-workers of a work injury or the way that the worker had been performing his job on August 29; the worker’s ability to walk to work on August 31; and the worker’s application for short term disability benefits rather than a WCB claim.

Analysis:

For the worker’s claim to be acceptable, the panel must find, on a balance of probabilities, that the worker’s low back medical condition was causally related to his job duties. The panel was able to make this finding, based on the analysis that follows.

The panel notes that most of the evidence and the submissions made at the hearing dealt with the worker’s job duties on August 29, 2007 as a tagger, with a much shorter narrative that describes the worker’s job duties on August 30, his walking to the work without difficulty on August 31, his brief use of the locker room to put on his work shoes, the onset of pain immediately thereafter, and his being taken directly from his workplace to the hospital for medical attention.

However, during the course of its questioning, the panel gained more insight as to what the worker was doing in the locker room just prior to the beginning of his work shift and the panel then considered a different weighting of the various workplace incidents that had been described on the file as the possible source of the worker’s low back difficulties.

It became apparent to the panel that while the August 29 tagging incident was a possible cause of the worker’s medical difficulties, there was in fact a far more proximate and germane cause, that being the worker’s activities at work at the beginning of his shift on August 31, 2007. It is the view of the panel that the worker suffered an acute onset of symptoms, while bending over and tying up his shoelaces in an employee locker room on the employer’s premises. This activity was incidental to the performance of the worker’s job duties, and in all respects meets the requirements for an accident as outlined in the Act and WCB policy. In reaching this conclusion, the panel notes in particular:

• The employer provides the locker room for the use of its employees.
• It was mandatory for the worker to use the special lipped work shoes, as described by the worker at the hearing.
• On August 31, 2007 the worker had walked to work that afternoon, without any apparent distress. As such, any prior incidents (either the August 29 “pop” in his back while tagging at work or the disputed non-work-related bruised tailbone from early July) were not significant preceding factors in the worker’s loss of work capacity, at least at the point of time of his arrival at the work place on August 31. In this regard, the panel also notes that the worker had not sought medical care in the days preceding and had worked his shift the day before, on August 30.
• On August 31, the worker arrived at his workplace and entered the locker room to get ready for work. He bent over to tie the shoe laces for his work boots. This was proximate in time to the beginning of his work shift. His evidence is that he felt a sharp pain in his low back. He left the locker room, and while standing outside, the pain got much worse, to the point where co-workers noticed and had to assist him to get to the business office.
• It is the panel’s view that the worker’s bending over to tie shoe laces that were awkwardly located under a lipped protector reflects a mechanism of injury that is consistent with and causally linked to the worker’s later diagnosed low back condition.
• From the office, the worker was taken shortly thereafter by his supervisor to a walk-in clinic and then to the emergency department of a local hospital for treatment.
• The panel notes that much has been made of the worker’s reasonably good health at the beginning of the August 31 work day, as evidenced by his ability to walk a long distance to work. At the hearing, the worker also agreed that he had no difficulty with that walk. Similarly, there appears to be no dispute that the worker was in considerable medical distress a very short time later, once he left the locker room. He was helped by his co-workers to move around, the distress was witnessed by his supervisor, and he was taken immediately from his workplace to a hospital for medical care, again by his supervisor. The dramatic “before and after” strongly suggests to the panel that the worker had suffered an acute injury at work.
• The panel notes that the time frames here – the proximity of the locker room incident, the significant change in functional capacity before and after tying his shoes, and the acute low back symptoms demonstrated by the worker – all suggest that a workplace accident occurred at the beginning of the August 31 shift, rather than near the end of the worker’s shift on August 29.