The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The issue being appealed is whether or not the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (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.

The issue for the panel in this case concerns whether or not an accident giving rise to benefits occurred on April 7, 2008.

The employer’s position:

The employer advocate and the employer’s corporate safety manager were present at the hearing. It was submitted that an accident, as defined in the Act, had not occurred. The worker’s disablement resulted solely from the effects of her pre-existing condition. The medical evidence on file supported this position, and it was further noted that the documentation revealed that the worker’s symptoms continued away from work equally as if she had been at work. If anything, the worker’s condition was a recurrence or a continuation of the 2007 claim. Overall, there was no new injury and it was submitted that there was no conclusive evidence upon which the panel could find that there was a claim that was acceptable in 2008.

The worker’s position:

The worker appeared with a worker advisor at the hearing. The worker’s position was that there was evidence to support, on a balance of probabilities, that an accident did occur on April 7, 2008 in which the worker did suffer a personal injury. The factors identified by the worker advisor were that her work duties had changed due to short staffing; confirmation from co-workers that the worker was visibly sore; and the mechanism of incident was consistent with the worker’s injury of a lumbar strain, with sciatic symptoms. It was noted that any ongoing relationship between the April 7, 2008 workplace injury and the worker’s current condition was a purely separate matter at this time, and that the sole issue before the panel was acceptability of the claim. Based on the evidence, the panel was requested to uphold the WCB’s decision of an acceptable claim, as the evidence did support that an accident occurred in April 2008 which caused personal injury to the worker.

Analysis:

The issue before the panel is whether or not the claim for benefits is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker did not suffer an accident arising out of and in the course of her employment on April 7, 2008. On a balance of probabilities, we are not able to make that finding.

In the panel’s opinion, the worker had a pre-existing lower back condition and we find that on April 7, 2008, there was an aggravation of that condition which gave rise to a claim for benefits. Although there was inconsistency in the worker’s position as to the cause of her back pain (recurrence of October 2007 injury vs. new injury in 2008), the panel viewed this as a reflection of the worker’s unfamiliarity with WCB terminology and the subtle adjudicative distinctions between the definitions of recurrence and a new accident. We did not find her to lack credibility. On the contrary, the panel found that there was consistency in the worker’s position that she injured herself on April 7, 2008. We are satisfied that the worker reported experiencing increased back pain in April, 2008, and that this pain arose on a day when she was performing physical work which was not part of her regular duties.

In coming to our conclusion, the panel places particular reliance on the following:

• There is evidence that the worker sought medical treatment for her back from her general practitioner on April 7, 2008. The last time she had seen her general practitioner for her back condition was on November 9, 2007. This would support that there was a change in her condition in April 2008 which prompted her to seek medical attention;
• The worker went to see her general practitioner again on April 16, 2008 and his progress report to the WCB indicates: “Back pain seems worse; Hurt it again at work.” This provides temporal corroborating evidence that the return of the worker’s back pain started while she was at work;
• The general practitioner’s progress report from the April 16, 2008 examination characterizes the worker’s back pain as a recurrence. The panel feels that this choice of words may have complicated the worker’s claim as the term “recurrence” has a very specific meaning with respect to WCB adjudication of claims. When assessing the worker’s statements made later in the claim, we do not expect her to appreciate the distinction in terms;
• In the worker’s June 9, 2008 written submission to the Appeal Commission on her 2007 claim, she wrote:
• “I have been off work since May 15/08 because of lower back pain. Because of my doctor’s assumption the injury is related and the same injury, no other claims were made”; and
• “I do believe that I should be covered. I have been hurt twice and both times my back was hurt.”

In the panel’s opinion, these statements suggest that the worker had always believed that there were two separate incidents, but that she became caught up in the characterization of the injury as proposed by her general practitioner, and investigated by the WCB;

• Although throughout the file, the worker repeatedly stated that she did not have a new accident, she never denied having a new episode of pain which commenced in April, 2008;
• The worker’s evidence at the hearing was that as lead hand, her duties were largely supervisory and she walked around for most of the day. On April 7, 2008, they were short staffed so she was working at an assembly station which required her to lean forward at an awkward angle and lift items weighing up to 30 lbs. The panel accepts that this change in duties could trigger an aggravation of a pre-existing low back condition.

The definition of “accident” in the Act includes: “… any thing that is done and the doing of which arises out of, and in the course of, employment … and as a result of which a worker is injured.” The panel finds that the change in the worker’s duties constituted an “accident” within the meaning of the Act. It is therefore the decision of this panel that the worker suffered injury by accident arising out of and in the course of her employment on April 7, 2008. Her claim is acceptable and the employer’s appeal is dismissed.

The panel notes that the employer advocate very strongly suggested that copies of the short term disability forms completed by the worker in late May, 2008 ought to be obtained by the panel. It was submitted that the manner in which these forms were completed by the worker would shed light on whether she viewed her injury as being work related. The employer advocate noted that the long term claim forms from the disability insurer referenced that the disability for which they were paying benefits was not work related.

The panel does not feel that the information contained in the short term disability forms is necessary for us to make our decision. We find that there is overwhelming evidence to support that at the time she completed the forms in May, 2008, the worker believed her injury to be work related. She had been in discussions with the WCB since April 2008 regarding entitlement to benefits for what she claimed as a work related injury. It was only after the WCB declined to accept her claim on May 22, 2008 that she applied for the short term disability benefits from the insurer. It is clear that the first type of benefits applied for by the worker was WCB benefits for a work-related injury. At the hearing, the worker indicated that she only applied for short term disability benefits as an interim measure while she sorted out her claim with the WCB with the knowledge she would need to repay the insurer in the event she was successful in accessing WCB benefits. We accept this explanation and therefore do not feel it is necessary to obtain the information from the insurer.