The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

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

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supported that the worker suffered a right low back sprain with mild sciatic nerve impingement connected to her work duties. Although the worker did not immediately report the accident, her explanation was that she did not think the pain was that serious and she also did not want to miss time from work. It was only after her condition worsened on the weekend that she reported the accident on the Monday. The accident had only occurred on the previous Wednesday, so the accident was reported on the third working day. There was no delay in seeking medical attention, as the worker tried to see a physician on November 4, 2009, but was unable to secure an appointment until November 5, 2009. Both the doctor's first report and the chiropractor report indicate a mechanism of injury consistent with a lower back strain with mild right-sided nerve impingement related to employment duties. Overall, it was submitted that the evidence did support, on a balance of probabilities, that the worker did suffer personal injury by accident which arose out of and while she was in the course of her employment. Therefore, the claim should be accepted.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to her low back and right hip during the course of her employment on October 28, 2009. On a balance of probabilities, we are able to make that finding.

At the hearing, the worker described an incident on Wednesday, October 28, 2009 whereby she was depositing 5 lb bags of product into a hopper. The job required her to stand on a two-step stool, reach down to the right and lift the bag from a cart located beside her, then pour the product into the hopper opening in front of her, which was higher than shoulder height. The job required a side bending/twisting motion. It was while she was coming down off the stool to grab a bag that she felt a distinct pull in her low back area. The worker recalled thinking to herself: "That was not good," but nevertheless continued to work the remaining 3-4 hours of her shift. She was done for the day at 12:00 midnight and she returned home and went to bed.

The next morning, the worker woke up and felt stiff and sore in her low back, right along the belt line and into her right buttock. When she placed weight on her right leg, she felt a jolt of pain through her thigh and down her leg. She applied a topical cream and took ibuprofen, then reported for work at 3 pm. When at work, the worker asked to be assigned to the "sampling" area which consisted of lighter quality control duties. She still had to stand, but she did not need to move around very much. She was able to work at this station for the next two days, Thursday and Friday.

The worker had hoped that the condition would resolve, but instead, over the weekend, it got worse. On Monday, she returned to work at the same sampling area, but approximately 2 ½ to 3 hours into her shift, she could no longer even do the stationary standing duties. The worker informed her supervisor that she did not feel she could work any longer, and her supervisor asked her to perform sedentary paperwork which would allow her to sit. She agreed to do these duties and worked for the remainder of her shift. The supervisor also advised the worker that a WCB claim should be filed.

The next day, the worker did not go to work and tried to see a doctor, but was unable to get an appointment. The next day, on November 5, 2009, she was able to get an appointment and a report was filed by the doctor. The doctor's first report dated November 5, 2009 diagnoses a lower back strain with mild sciatic nerve impingement. The mechanism of injury described to the doctor is entirely consistent with what the worker reported to the WCB.

The worker explained that she did not immediately file a WCB claim as she thought that the injury was not severe and that it would get better on its own. Also, she did not want to miss any time from work.

When asked about the discussions she had with co-workers, the worker indicated that she is not the type to complain about how she is feeling. Some of her co-workers noticed her altered gait and asked her about it. The worker's evidence was that she told them she was having pain in her leg, but did not volunteer further information as to why she was having pain. The worker indicated that she did not really know her co-workers very well as she had only started working there approximately 1 ½ months prior. When asked specifically about her conversation with co-worker "M", the worker stated that she was certain that she did not tell M about how she hurt herself and suggested that there may have been a misinterpretation. The worker acknowledged that she did tell M that her leg was sore and that she may have mentioned that walking around did not help. The worker advised that one of the things she did to relieve the discomfort was to try to walk off the pain instead of standing in one spot. This may have been what she said to M.

In the panel’s opinion, the worker’s claim for compensation should be accepted. We accept that the worker suffered an acute strain injury at work on Wednesday, October 28, 2009, which progressively got worse. In this regard, the panel finds that the worker's mechanism of injury, in particular the sideways bending and twisting is consistent with her diagnosis of a low back strain that worsened with ongoing activity. The panel found the worker to be credible when explaining why she delayed in reporting her accident and seeking medical treatment. The reporting delay of three working days was not unreasonable, particularly given that the worker had self-modified her duties for Thursday and Friday. It was only on Monday when she could no longer perform her work duties that the worker reported the accident to the employer. When she was able to secure a medical appointment on the following Wednesday, the description of her injury given to the doctor was entirely consistent with what was reported to the WCB.

The evidence which would most strongly tend to negate the worker's claim was the case manager's notes of her conversation with the co-worker M which stated: "(The worker) told (M) that she was unsure how she hurt herself and thought that walking around she might have pulled something. She did not mention a workplace incident." The panel agrees with the worker's suggestion that M may have been misinterpreted and given the other numerous factors which would tend to support claim acceptability, the panel places little weight on the record of the co-worker's comments.

The worker advised the panel that outside of work, she is not involved in any strenuous activities. Her hobbies do not involve running or other physical movement. She could not think of anything outside of her job duties which could have caused her to suffer the strain.

Overall, the panel finds on a balance of probabilities that the worker suffered an acute injury to her lower back on October 28, 2009 when she was loading the hopper at work. She continued to perform lighter duties for the next three days, however her back symptomatology worsened until she had to stop working. It is the panel's finding that the claim is acceptable. The worker’s appeal is allowed.