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 June 7-8, 2010 at the workplace.

The employer’s position:

The employer's Human Resources Manager and Production Manager were present at the hearing. It was submitted that an accident, as defined in the Act, had not occurred at the workplace on the worker's shift that started on the evening of June 7 and ended in the early hours on June 8, 2010. Their position was that the worker had pre-existing back difficulties that were the more likely cause of the worker's back difficulties. They pointed to evidence of the worker's earlier absences and medical treatment for non-work-related back difficulties in June 2004, August 2006, and as recent as March 2010, as supportive of their position that it was her pre-existing back problems and not the worker's job duties that caused the worker to leave work prior to the completion of her work shift on June 8, 2010. They also advanced the position that the job duties performed by the worker would not have caused a back injury, so they should not be held liable for the costs associated with the worker's back injury.

The Production Manager noted that a Physical Demands Analysis had been performed on the worker's position in 2006 and ergonomists had also examined the position and found it suitable. The worker had worked continuously in that position for years, until the time of her departure from work, and nothing had changed in the position. If anything, the production pace was lower in June 2010 than it was currently. As such, there was no work-based cause for the worker to have suffered an injury, as she had not changed the way she had been doing her job, nor had the job itself changed.

The employer also provided evidence at the hearing through a witness. The team leader (the worker's direct supervisor) described her interactions with the worker on her last shift. She advised that when she asked the worker to perform another job in the latter part of the shift, the worker had complained of her back being sore from 30 minutes of "dumping," which involved transferring product from trays to a conveyor belt.

The team leader indicated she had serious reservations about whether the worker had indeed been hurt. She indicated that workers routinely claimed their backs were sore in order to get out of doing some of their jobs. Right at the time the worker was complaining of her sore back, the team leader saw the worker move or try to move or lift a heavy bucket weighing 30 pounds, which she felt was not consistent with the worker having a sore back.

In response to questions from the panel, the team leader demonstrated the worker's job duties that were associated with the dumping. This position required a worker to remove 25-30 flat trays that were loaded with product (8 lbs each) from a rack and then dump the product onto a conveyor belt. The rack which held the trays was to one side of the worker and the conveyor belt on the other. Depending on which station the worker was at, the trays could be either on the worker's left side (with the conveyor on the right side), or vice versa. The movement back and forth required full 180 degree turns each way. This was a fast-paced job, with up to 12 racks of trays emptied onto the conveyor belt in a 30 minute period. The trays themselves were stacked vertically on the rack, starting at 6 inches from the floor, up to about 5.5 feet in height, while the conveyor belt was at about hip height. The worker would have to crouch to reach and pull the bottom trays out of the rack towards her, then rise up, and rotate, in order to dump the product on the conveyor belt on the worker's other side. The team leader advised that the workers would usually do one tray at a time, but workers would on occasion do two trays at one time. When asked to comment on the team leader's job description, the worker generally confirmed the dumping job duties as described by the team leader, but indicated that she always pulled two trays out at a time from the bottom of the rack and one tray from higher up on the rack.

The production manager indicated that the work was fast paced, but reasonable and within the design of the job. He advised that the conveyor was running below 100% efficiency at that time, and the current line speed is now higher than it was in 2010.

In response to questions, the team leader advised that she saw the worker regularly in the plant, as 80% of her time was spent on the production floor. She had been the worker's supervisor for approximately seven months prior to June 2010. She confirmed that the worker appeared to be fine when she started the shift, and she had not observed the worker to have any physical difficulties while at work earlier that day, or in the previous days, weeks, or months. As well, she acknowledged that while other workers may have been complaining in the past to get out of doing work duties, the worker was not in that group; the worker's first complaints about her back were on June 8, 2010.

Overall, the employer submitted that there was no new injury at work, and it was submitted that there was no evidence to support a work-related accident in June 2008.

The worker’s position:

The worker was self-represented at the hearing. She was provided with an interpreter, who provided full interpretation to ensure a full and active participation at the hearing. The worker’s position was that she was hurt while doing the dumping duties on her June 7-8, 2010 shift. She also attributed her back difficulties to having to move the loaded trolleys of empty trays away from the conveyor belt. By 1 a.m. on June 8, 2010, her back was so sore that she was unable to go back to the dumping job when asked to do so by the team leader, and that is when she spoke to the team leader about her sore back. She indicated that she did not lift anything heavy afterward, as had been suggested by the team leader. She advised that the team leader sent her home at 2 a.m. Her position is that she did not refuse work, but rather that she was unable to perform the work. The worker described the three positions that she rotated through on her job, and indicated that the dumping job was the most difficult and had caused her back difficulties.

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 on a balance of probabilities that the worker did not suffer an accident arising out of and in the course of her employment on June 7-8, 2010. On a balance of probabilities, we are not able to make that finding.

At the outset, the panel notes that this appeal is limited only to the employer's issue of whether the claim is acceptable. The WCB has already accepted the claim, and the employer is seeking to have that decision set aside. At the hearing, both parties were inclined to discuss whether the subsequent benefits that were paid on the accepted claim were or were not cut off too soon, and the circumstances surrounding the later termination of the worker's position by the employer. The panel did advise the parties that we did not have the jurisdiction to deal with those other matters, and that we would be limiting ourselves to the issue of whether there was a workplace accident under the Act.

In reaching the conclusion that there was an acceptable claim, the panel reviewed all the evidence on the file as well as the evidence and the submissions of both parties at the hearing, and our reasons follow.

As to the employer's position that the worker's back condition on June 8, 2010 related to a pre-existing condition, the panel finds that this was not the cause of the worker's worsening back condition on June 8, 2010, based on the following considerations:

· The worker's prior back issues that resulted in time away from work and medical treatment occurred in 2004, 2006, and in March 2010, the latter being approximately three months before the June 8, 2010 claim. Each of these absences appear to have been of short duration, and there is no evidence of ongoing medical treatment or of diagnostic testing or clinical findings to suggest that there was any ongoing disability or loss of function as a result of those prior incidents.

· The worker returned to her regular duties after each of those absences. The supervisor's evidence is that the worker did not complain of back problems in the days, weeks, and months prior the June 7-8 shift. The supervisor was on the production floor 80% of the time, and she also did not observe the worker having any back difficulties or physical limitations in that time frame.

· The worker advised that she had no back difficulties at the outset of the shift or in the early part of the shift, and did not complain of same. The supervisor confirmed that she did not observe the worker to be in any difficulty early in the shift and that the worker had not complained to her.

· The chiropractor's first report, dealing with his examination of the worker on June 8, 2010, provides a diagnosis of an "acute moderate thoracolumbar arthralgia with associated moderate spinal musculo-ligamentous strain." In the panel's view, this diagnosis not consistent with a chronic or longstanding injury, but rather with the reported history provided by the worker, of an acute onset of her back difficulties.

As to the employer's position that the job duties were not sufficient to have caused the worker's back injury, the panel finds that the worker's performance of her job duties did, on a balance of probabilities, contain a mechanism of injury consistent with her diagnosed mid- and low-back musculo-ligamentous strain, based on the following considerations:

· The panel carefully reviewed the worker's job duties, particularly in the dumping rotation, with both the worker and her team leader. We note that the job required significant rotational movements from side to side and at a fast pace, and in awkward and ever-changing stances. In particular, the worker would pull out two trays from near floor level weighing a total of 16 lbs., and rotate upward and laterally 180 degrees to a standing position to dump the product onto a hip-height conveyor belt, then rotate further to deposit the empty trays onto a cart nearby, then rotate back around empty-handed 180 degrees or more to a crouching position again to remove the next tray or trays, at varying heights from floor level to above head height. This was a fast-paced job. With 12 racks of 25-30 trays being dumped in a 30 minute period, there was an average of 10-12 trays being unloaded every minute, with quick side-to-side rotations being required to meet the job demand. In the panel's view, this series of movements was capable of causing a low and mid-back musculo-ligamentous strain.

· The worker immediately and then consistently thereafter reported this particular job duty as being the cause of her back problems. At work that night, the worker reported this particular set of job duties (30 minutes of dumping) to her team leader as being the cause of her back problems, mid-shift. She gave the same history to her chiropractor later the next day, and also reported the same job duties as being the cause of her back difficulties to the WCB adjudicator in their first conversation on June 15, 2010.

· The team leader acknowledged at the hearing that workers do get sore backs from the job, and that it is a fast-paced work environment. She also noted that the worker had never complained of a back problem prior to that shift and appeared to be fine in the earlier part of the shift, again confirming that something happened mid-shift, while she was working.

· The employer suggested that the worker's positions, including the dumping position, were all well-designed and had been reviewed by ergonomists and were supported by a job demands analysis. They pointed out as well that the worker had in fact performed this job without difficulty for years. The panel acknowledges the efforts of the employer to maximize worker safety, but notes that it is extremely difficult to design a perfectly safe job; in our analysis of this particular position, we find that the dumping job still allowed for and in fact required significant and repetitive movement, torsioning, crouching, reaching, and twisting at a fast pace carrying a loaded tray of 8-16 lbs, that included the risk factors for the development of an acute mid-back strain.