Decision #138/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his claim for injury was not acceptable. A hearing was held on September 28, 2011 to consider the matter.

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 for pain he experienced in his low back and legs that he related to his work activities as a housekeeping attendant. The date of accident was reported as being October 29, 2008 and was reported to the employer on November 1, 2008.

An accident employer representative e-mailed the WCB on November 4, 2008 to indicate that they had concerns regarding the worker's claim. She noted that the worker was on modified duties for a non work-related condition, and he made it known that he did not want to be on modified duties in the housekeeping department. The work assigned was within the restrictions set out by his doctor.

On November 6, 2008, a WCB adjudicator spoke with the worker to discuss his claim. The worker described his work duties as follows: He cleans toilets with a cloth in a squatting position and wipes down the washroom counters and sweeps floors for five hours of his shift. He does not do mopping or vacuuming. He uses his right hand to clean the toilets and is right hand dominant. The worker noted that he bends his back first and then squats when cleaning toilets. He experienced symptoms in his low back, both shoulders and neck four hours into his first shift on October 19, 2008. He reported his difficulties to his supervisor. The worker worked in the housekeeping department in 2002 performing the same duties and did not have any back difficulties. He had no prior back symptoms before October 19, 2008 beside his 2007 back claim.

The worker indicated that he called his chiropractor on October 30, 2008 and made an appointment to see him on November 1, 2008. The worker indicated that he delayed seeking medical treatment as he self-treated with medication and exercises and started to feel better on his days off.

A report from the treating chiropractor confirmed that the worker attended for treatment on November 1, 2008 related to thoracolumbar pain/discomfort that he related to housekeeping duties. The worker was diagnosed with acute facet syndrome and a secondary muscle strain.

A doctor's medical note dated October 23, 2008 indicated that the worker was treated for "tennis elbow" and low back pain (previous injury) and was not able to lift heavy objects.

The accident employer submitted additional information to the WCB with respect to the worker's work history in the housekeeping department as well as conversations that took place between the worker and his supervisor with regard to his back complaints.

On November 19, 2008, a WCB adjudicator called the worker to further discuss his claim. The worker indicated that he had his weeks confused and it was on October 26, 2008 and not October 19, 2008, that he first experienced symptoms in the housekeeping department.

On November 20, 2008, the worker was advised that the WCB was denying responsibility for his claim. The adjudicator noted that the worker was treated for low back difficulties before the date of injury and he continued to work without seeking medical treatment until November 1, 2008. It was therefore the WCB's position that a relationship did not exist between the development of his low back difficulties and an accident arising out of and in the course of his employment.

On April 14, 2009, the Worker Advisor Office requested that the decision made by the adjudicator be reconsidered by Review Office. The worker advisor provided rationale to support that there was a relationship between the worker's low back difficulties and the performance of his work duties which resulted in a muscular strain injury.

On May 1, 2009, the employer's representative submitted to Review Office that it could not be demonstrated that the worker's back condition arose out of and in the course of his employment as was required by subsection 4(1) of The Workers Compensation Act (the "Act").

In a decision dated May 7, 2009, Review Office decided that the circumstances of the claim did not meet the requirements to substantiate the probability that there was an accident. Review Office noted that the worker gave inconsistent statements regarding the status of his back prior ro the compensable injury. It referred to the doctor's note of October 23, 2008 which indicated that the worker required restrictions because of an already existing back problem. Review Office stated: "To date, the worker is attending a chiropractor on a regular basis for his back condition. Even if Review Office accepts that the mechanism of injury reported by the worker (non-specific back pain caused by bending activities) could cause back symptoms, if his symptoms were caused by this activity, they would be expected to resolve shortly after his removal from the offending activities."

On November 13, 2009, the Worker Advisor Office asked Review Office to reconsider its decision of May 7, 2009. The worker advisor advanced the position that there was no requirement for a specific incident to satisfy the definition of an "accident" under subsection 1(1) of the Act. The mechanism of injury in this case was the cleaning of washrooms which required bending. This satisfied the definition of an "accident". The evidence supported that the worker's muscular strain diagnosis was related to housekeeping duties and there was no evidence on file to support that the flare-up was related to any non-work related factors.

On November 19, 2009 Review Office confirmed its prior decision to deny acceptance of the worker's claim. Review Office made reference to inconsistencies in the worker's statements related to the onset/cause of his back symptoms. Review Office also indicated:

"…to accept your appeal Review Office must find that, on a balance of probabilities, your employment conditions made a substantial contribution to an accident or aggravated a pre-existing condition. In your situation, the evidence does not strongly support your claim that your back condition and/or an aggravation of a pre-existing back condition happened while you were at work; and there is less evidence to support a causal relationship between your specific work activities and a back injury. Review Office finds that, on a balance of probabilities, your claim does not meet the conditions of an accident."

On May 25, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing and answered questions posed by the panel.

The worker told the panel that he was appealing because he was injured at work. He said he suffered a re-injury of a prior back injury. At the time of the injury, the worker was working in housekeeping in modified duties. His duties included wiping counters and mirrors, and cleaning fixtures in washrooms.

The worker stated that he began work in housekeeping on October 26, 2008 at 10:00 AM. He said that he mopped the floors but was later told that he was not to do this. He said he was cleaning toilets when his back became sore. He attributed the pain to bending down to clean toilets. He said he squatted partway then bent over. He said that at about 11:00 AM he felt a very sharp, "pinchy pain" in his back. His back became very sore and when he stood up the pain eased. He described the pain as being about four inches above his waistline and on both sides of his spine.

The worker was asked about a note he provided to the employer dated October 23, 2008. The note states that "The above is treated for "tennis" elbow and lower back pain (previous injury) and not able to lift heavy objects." The worker said that the note was not from his usual physician. He said that, contrary to what was written in the note, he was not being treated for lower back pain. He said that he asked the physician to issue the note as a warning to the employer that his back gets sore.

The worker was asked about the file information which states that when asked by his supervisor whether he injured his back working; the worker stated "no, it was an ongoing condition." The worker advised that he replied "yes" it was from work. He assumes his supervisor must have misunderstood his reply.

The worker was asked why he did not complete a green card on October 26, 2008. The worker advised that he hoped the pain would improve but it got worse during the week so he ultimately filed a claim and saw his chiropractor.

Employer's Position

The employer was represented by an advocate and its Senior Advisor, Health and Wellness.

The employer's representative submitted that the evidence does not demonstrate that the worker's back condition arose out of and in the course of employment as required by subsection 4(1) of the Act. She noted that:

  • The worker has numerous non-compensable health problems including prior back problems which the worker was treated for prior to this claim.
  • The worker was provided with a placement in the housekeeping department to accommodate another health condition unrelated to his back and that the worker advised the employer that he did not want to work there.
  • When the supervisor asked the worker whether his back problems were due to his employment duties, the worker said they were not. As a result the worker was placed on sick leave.
  • The worker had several prior WCB claims and was aware of the need to report work injuries to the employer.
  • The worker gave several different versions of when his symptoms first occurred.

The employer's representative submitted that the overwhelming weight of evidence supports that the worker's back condition is not work related.

Analysis

The worker is appealing the WCB decision that his claim for a back injury is not acceptable. For the worker's appeal to be accepted, the panel must find that worker sustained an injury to his back while performing his work duties in October 2008. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker did not sustain a workplace injury and that his claim is not acceptable.

We find that in this case, the worker's evidence has changed from the date of the alleged accident to the date of the hearing. We consider the more recent evidence to be less reliable.

The changes in evidence include the following;

  • The worker first indicated that he had back pain on October 19, 2008 when he started housekeeping duties. When it was pointed out that he did not start these duties until October 26, 2008 he indicated that he got his dates confused and that he first felt back pain on October 26, 2008.
  • The worker provided the employer with a doctor's note dated October 23, 2008 which indicated that he was treated for tennis elbow and lower back pain from a previous injury and could not lift heavy objects. When asked about this note, the worker initially denied that he had a history of back pain and said that he saw the doctor about his tennis elbow and not his back. He later told the WCB that he had a history of back pain and that his back had not fully healed from his prior injury. At the hearing the worker said that the doctor referred to the lower back to give a warning to the employer that he has a back problem.
  • Four hours into his shift on October 29, 2008, the worker asked his supervisor to move him to a different work station. The supervisor denied the request and the worker went off work on sick leave. The supervisor reports that he asked the worker whether he hurt his back in the washroom that day and he replied "no" and said it was an ongoing condition. When asked about this at the hearing the worker said that he answered "yes" and that the supervisor must have misunderstood his answer.

We rely on the worker's early evidence that he did not injure his back while performing housekeeping duties. We note the October 23, 2008 doctor's note which indicates the worker has lower back pain from a previous injury. We also note that the worker initially took sick leave and later applied for WCB benefits. The worker did not complete a green card until November 1, 2008. We find this delay is unusual given the worker had several injury claims and was familiar with the need to complete green cards. This suggests that the worker stopped work due to non-work problems.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of October, 2011

Back