Decision #150/11 - Type: Workers Compensation
Preamble
It was determined by the Workers Compensation Board ("WCB") that the worker did not sustain an injury arising out of and in the course of his employment on September 24, 2010. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on November 1, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On September 24, 2010, the worker filed a claim with the WCB for a middle/lower back injury that occurred on September 22, 2010 while assisting a person in a wheelchair onto a vehicle. The worker described the accident in detail explaining that the rubber wheel of the wheelchair got caught on a piece of ramp. He then tried to lift the person onto the ramp by grabbing onto the handles of the wheelchair. He lifted with his right arm and twisted to the left and felt a pull and pop in his middle and lower back. He then had some burning and pain and thought he pulled a muscle.
The worker attended a physiotherapist for treatment on September 22, 2010. The diagnosis was a strain/sprain of the lumbar spine and restrictions were outlined. It was indicated that the worker would attempt a return to work the following day.
The employer provided the WCB with a videotape of the worker which was recorded during his shift of September 22, 2010. The employer submitted that there was no evidence on the videotape to lead one to believe that the worker injured himself as stated. The employer's representative noted that the worker had chronic back problems and that he had missed time from work in the months prior to the alleged incident because of his back problem. The employer's representative stated there was no evidence to support a conclusion of "aggravation of a pre-existing condition."
On October 16, 2010, the worker advised the WCB that he had a history of low back difficulties dating back to 2002 and that he had some neck difficulties dating back to the early 1990s. The worker indicated that he dealt with back discomfort on a daily basis but he felt fine at the beginning of his shift on September 22, 2010. The worker said he knew as soon as he tried to help with the lift that he hurt his back. Shortly after the incident he took pain killers to make it through his shift. At the end of his shift, he told the shift supervisor and the time keeper that he injured himself and would not be able to work.
The treating physiotherapist advised the WCB on October 16, 2010 that before September 22, 2010, the worker was seen for treatment in March 2010 for his low back and in July 2010 for his upper back and neck. When seen on September 22, 2010 the findings were acute in nature and in his opinion there was a flare up of the underlying condition.
In a note to file dated October 18, 2010, a WCB case manager documented that the videotape evidence was reviewed by a staff member of the WCB Special Investigation Unit. It was concluded from the review that the evidence presented was not conclusive enough to determine that the worker was not injured in the manner he described and that the video documentation of the event was consistent with the history of injury supplied by the worker. This information was communicated to the employer's representative on October 18, 2010.
On October 18, 2010, the employer's representative expressed the following concerns:
- There was no indication either physically or facially on the video evidence that the worker sustained an injury to his back. The worker did not exhibit any signs of injury throughout his shift after the alleged incident.
- There was a two day delay in reporting the alleged incident.
- The worker operated a business on the side which could just as easily have caused a flare-up of his chronic back problems.
On October 25, 2010, the WCB case manager obtained information from the worker related to his side business.
On October 26, 2010, the worker advised the WCB that he did not return to work on September 25, 2010 as he hurt his back. He did not advise his employer of this nor did he advise his employer that he could do modified duties. The adjudicator advised the worker that based on subsection 22(1) of The Workers Compensation Act (the "Act"), his time loss benefits may be suspended beyond September 25, 2010 as he did not mitigate his losses given that he did not notify his employer nor did he attempt modified duties.
On October 28, 2010, the worker was advised by letter that his claim for compensation was accepted and that he would be paid wage loss benefits from September 23, 2010 to September 24, 2010 inclusive.
A WCB physiotherapy consultant reviewed the videotape on November 5, 2010. He stated:
"There does not appear to be a mechanism of injury based on review of the video. The worker pushed a wheel chair from ½ way up the ramp. There was no lifting or twisting. There was no grimacing or body language to suggest that an injury occurred. The worker would have been capable of performing the job with restrictions as noted in the September 24, 2010 therapist report at the time of the accident. "
On November 9, 2010 the WCB informed the worker that his claim for benefits beyond September 24, 2010, was declined based on a failure to mitigate.
On January 3, 2011, the worker's union representative wrote to the Review Office and appealed the WCB's decision to deny the worker wage loss benefits after September 24, 2010. A rebuttal submission was provided by the employer's representative dated March 4, 2011. The employer also outlined the position that the evidence on file failed to satisfy the prerequisites of subsection 1(1) of the Act. Included with the submission was a report from an occupational medicine physician who reviewed the videotape evidence on the employer's behalf. The specialist provided rationale to support his conclusion that "…I see no indication that the activity noted on the DVD could have resulted in either a new injury or aggravation of the pre-existing condition."
On April 26, 2011, Review Office determined that the worker's claim for compensation was not acceptable and that the worker's appeal was moot given the decision that his claim was not acceptable. Review Office noted the employer's contention that the incident at work on September 22, 2010 was a coincidental event which had no effect on the worker's back condition. Review Office indicated that it watched the videotape taken on the morning of September 22, 2010 and was unable to verify the lifting and twisting movements reported by the worker. Review Office noted that two separate medical professionals reviewed the videotape and did not see any action of the worker which would have produced a lower back injury. Review Office concluded that the evidence did not support that the worker sustained an injury by accident while in the course of his employment on September 22, 2010. On May 25, 2011, the worker appealed the decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by 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 union representative at the hearing. It was submitted that the worker did have an acceptable claim for an incident which occurred during the course of his employment. He went to work that day and helped assist a wheelchair person onto the bus. It was admitted that the video does not show the worker making any large movements or throwing himself on the ground writhing in pain and agony, but an injury occurred nonetheless. The wheelchair was stuck on the ridge of the ramp and in order to get the passenger over the ridge, there has to be a little bit of lifting and a little bit of pushing. The worker had a back at risk and had been off work many a time. The worker advised he took some painkillers which enabled him to finish his shift then upon returning to the garage, he notified his employer and saw his physiotherapist, which satisfies the requirements of the Act as to what an injured worker should be doing.
The Employer’s Position
Two representatives from the employer appeared at the hearing. The employer conceded that the incident to which the worker attributed his problems did in fact occur; however, it was the employer's position that subsection 1(1) of the Act had not been satisfied. Specifically, the worker's back problems were neither caused nor aggravated by the incident in question. Two medically qualified healthcare professionals reviewed the video of the incident in question and concluded that no injury occurred. The worker had a chronic back problem which was the likely cause of his ongoing back pain. A review of the video indicates that at no time did the worker exhibit any pain behaviour or acknowledgement of the alleged pull and pop in his back. It was submitted that the panel uphold the Review Office decision.
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 his back during the course of his employment on September 22, 2010. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described the incident which occurred on September 22, 2010. He had a wheelchair passenger who got stuck on the ramp. He waited to see if the passenger could get himself up and he could not, so the worker got out of his seat to assist. In assisting, the worker pushed forward, which is something which will generally cause him problems with his back, particularly with the weight of the wheelchair, and the gentleman, plus the parcels on his lap. When he pushed, the worker said that he also twisted slightly. The worker's evidence was that although it does not seem apparent in the video, he twisted slightly with his arms and felt an instant sort of pull and pain in his lower back area. He knew at the time that he had hurt his back slightly, but did not know how much he injured it. The worker proceeded to help the passenger in and he got back into seat and carried on in service. About ten minutes later, he felt his back stiffening up and going into spasms. He regularly carried prescription painkillers and took three tablets to help him make it through his shift. When he got back to the garage, he filled out an injury report form as he did not know if he would be able to complete his second shift that day. From there he went home and contacted his physiotherapist, whom he saw later that same day. He did not work his second shift.
In the panel’s opinion, the worker’s claim for compensation should be accepted. The usual indicators of an accident are present. The worker promptly reported the injury to his employer within hours after it occurred and completed a green card before leaving work. He was unable to continue working his second shift scheduled for the afternoon. The worker went to his physiotherapist that same day and gave a consistent description of the incident and mechanism of injury. The physiotherapist noted objective findings of reduced lumbar flexion and extension with spasm at end range, reduced strength to lumbar extensors and hip flexors, swelling to lumbar paraspinals and mildly positive lumbar compression test. The physiotherapist's diagnosis was strain/sprain to the lumbar spine.
What is unusual in this case is that there is a video recording of the incident itself. Two medical professionals have reviewed the video and both were of the opinion that the video clip did not display any lifting or twisting movements when assisting the passenger. They also note that there was no grimacing or pain behaviour demonstrated. As a result, both were of the opinion that there was no mechanism of injury or activity that could have resulted in an injury to the worker.
At the hearing, the worker described what was occurring in the video clip. He explained that the right wheel of the passenger's wheelchair had become caught on the lip of the ramp. In order to free the wheelchair, the worker had to grab the handlebars and lift the right side of the wheelchair and twist it slightly to the left. It was not a large movement but when he did it, he felt a pull/twinge of pain in his low back. He did not know how serious it was at first, but within ten minutes, he knew that it was going to be serious as he could feel his back going into spasm. He therefore took three painkillers which he normally carried with him to treat a pre-existing low back condition.
The panel has carefully reviewed the video clip and we find that the accident occurred very much as described by the worker. Although it is not clear whether or not the handle on the right wheel got caught on the lip of the ramp (as alleged by the union representative), it is clear that the right rear wheel was somehow stuck on the lip of the ramp and that a lift and twist was needed to make the wheelchair mobile again. The panel was impressed by how closely the description given by the worker in the Worker Incident Report aligned with the video clip (also noting the fact that he had not seen the video prior to giving the report). We note that in the report, the words "lift" and "twisted" were used without qualification and that may have caused the reader to expect some gross movement. In fact, it was a very subtle movement, but nonetheless, there was a lift and twist. With the benefit of the worker's testimony, the panel was able to identify these movements in the video clip. We therefore feel comfortable in substituting our own impressions of the activity depicted in the video for the opinions of the medical practitioners on file.
Given that the worker had a pre-existing "back-at-risk", the panel accepts that a subtle lift and twist movement could have caused him to suffer a low back sprain/strain. The fact that he appears to be moving with ease approximately 50 minutes later is consistent with the evidence that he took some painkillers shortly after the incident. Soon after, he reported his difficulties to his supervisor, did not return to work, and immediately sought medical treatment.
The panel therefore finds that the worker has an acceptable claim.
The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 17th day of November, 2011