Decision #34/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he did not suffer an accident at work. A hearing was held on January 22, 2013 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On June 21, 2012, the worker filed a claim with the WCB for a right low back injury that occurred on June 5, 2012. The worker described the incident as follows:
I was on the loader loading trucks and the yard was full of mud. As it was very slippery, I was balancing inside the loader most of the time. In the process, I jarred my right lower back. I had a previous work-related back problem years ago but this got completely resolved.
The worker further advised the WCB that he reported the incident to his employer on June 15, 2012 as he did not have symptoms right away.
On June 20, 2012, the employer's representative indicated that there was a two week delay before the worker reported his back problem and when he did, the worker thought that it might be a recurrence of a 2005 back claim. The representative questioned the compensability of the worker's back problems as there was no specific incident.
A doctor's first report showed that the worker attended for treatment on June 15, 2012 for pain down his right leg and right low back. The diagnosis was a lumbosacral strain with sciatic nerve irritation.
On June 25, 2012, the worker advised a WCB adjudicator that he was operating a front end loader during the week of June 5, 2012. It was muddy and slippery. He was not sure of an exact mechanism of injury and he may have injured his back from getting in and out of the machine. There was no slip or falls or other traumatic events that he could recall. His back pain progressed over several days. He had no immediate ongoing issues with his back prior to June of 2012, just regular aches and pains. The worker reported that he first had back pain between June 5 and June 6 and it progressed over a few days. He reported no injuries or aggravation while on his days off. The worker reported that he did not report his injury/symptoms as work-related prior to June 19 as he hoped he would get better over a few days.
On July 4, 2012, the worker was advised that the WCB was unable to accept responsibility for his claim as the evidence gathered did not establish a relationship between his symptoms and his regular work duties. The adjudicator noted that there was no change in the worker's overall work duties and no specific accident or incident that occurred to account for the onset of his symptoms. The early information on file indicated that the worker's symptoms were initially related to a prior back injury he had sustained. The WCB also considered the time frame between the worker's initial symptoms to the date work-related factors were reported to the employer.
On July 9, 2012, the worker wrote the WCB requesting reconsideration of the decision made on July 4, 2012. The worker noted that he started to experience pain coming from his right thigh/hip/groin area while operating a front end loader on June 6, 2012. He said he called his doctor on June 7, 2012 but was unable to get a medical appointment until June 15, 2012. He said he returned to work on June 12, 2012 and was in pain his whole shift. He informed his supervisor that he had a doctor's appointment on June 15, 2012. When he saw the doctor on June 15, 2012, the doctor's questions led him to believe that he could possibly have pulled a groin muscle or hernia. The worker indicated that his conversations with his treating physicians and physiotherapist all pointed to a lower spine disc-related injury brought on by operating the front end loader on rough terrain on June 5 and 6, 2012.
In a second decision dated August 3, 2012, the worker was advised that the WCB was unable to accept responsibility for his claim. The adjudicator noted that while the worker may have experienced symptoms while at work, the sum of the evidence did not establish a relationship between his symptoms and his regular work duties causing those symptoms.
On August 13, 2012, the worker wrote Review Office to appeal the adjudicative decisions dated July 4, 2012 and August 3, 2012. A submission to Review Office was also made by the employer's representative dated August 29, 2012. Further submissions by the worker and by the worker's union representative dated September 21, 2012 and September 27, 2012 were also filed.
On October 4, 2012, Review Office determined that the worker's claim was not acceptable. Review Office noted that when speaking with the WCB adjudicator on June 25, 2012, the worker mentioned that his accident may have occurred "getting in/out of machine" or could be related to operating his loader in "wet muddy conditions." The worker later felt that his injury was related to "balancing in the loader" after speaking with his physician.
Review Office noted that the worker has degenerative disc disease ("DDD") at two levels of his lumbar spine. The worker mentioned that his doctor felt that one or both of the levels of DDD were not pre-existing and could have some relationship to his work duties and balancing in the loader on June 6, 2012. Review Office noted that a sudden jarring or severe jostling resulting in severe or quick extension, flexion or compression of the low back could give rise to a disc related injury; however, this type of injury would be apparent shortly thereafter. As stated by the worker, he did not experience discomfort right away and he was unsure of the exact mechanism of injury. The worker stated that his low back discomfort progressed in severity gradually and was not an acute reaction. On October 10, 2012, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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 key issue to be determined by the panel deals with causation and whether the worker’s low back pain was caused by an accident arising out of and in the course of employment.
WCB Policy 44.05, Arising Out of and in the Course of Employment (the "Policy") addresses the concept of the phrase "arising out of and in the course of employment", which is fundamental to the adjudication of claims. The general concepts regarding the phrase are discussed and the policies which have been developed to address specific situations as they relate to compensability are listed.
The worker’s position:
The worker was assisted by a union representative at the hearing. It was submitted that the worker sustained an injury on June 6, 2012 while bouncing and being jerked side to side while operating a loader in wet and muddy conditions. The worker did not have any prior back symptoms before the incident. As a result of the pain he was experiencing, the worker phoned his doctor the next day, June 7, 2012 to make an appointment but he could not get in to see his treating physician at that time. Given the configuration of his shift schedule, he was off work for five days after the date of injury and hoped the pain would resolve. He returned to work in pain until he saw a doctor on June 15, 2012 who determined he could no longer remain in the workplace due to his injury. It was contended that, on the balance of probabilities, the evidence did establish a relationship between the worker's symptoms in the workplace and the duties he was performing on the day of injury.
The worker's representative also quoted WCB Policy 44.05. He noted that the injury occurred within the time of employment, at a location where the worker may reasonably be and while performing work duties incidental to employment. It was submitted that based on the Policy, it must therefore be presumed on a balance of probabilities that the accident arose out of employment as the worker was in the course of his employment when the symptoms began.
The employer’s position:
A representative from the employer appeared at the hearing. It was submitted that the totality of the evidence failed to establish that the worker's lower back problems arose out of and in the course of his employment. The employer noted that there were inconsistencies in the worker's reporting of his accident and onset of symptoms. The records on file indicated that the worker did not report the accident to his employer until June 19, 2012. If the worker's symptoms were severe enough to warrant seeking a medical appointment on June 7, 2012, the employer questioned why he would not have sought alternative treatment from either a walk-in clinic or hospital during the ensuing eight days. It was submitted that the symptoms described by the worker were most consistent with degenerative disc disease and that the worker did not know what caused his back symptoms and was merely speculating on a possible work-related cause. The employer's position was that the best evidence on file did not establish an injury occurring in the workplace on the date in question.
Analysis:
In order for this appeal to be successful, the panel must be satisfied that an accident occurred on June 5 or 6, 2012 within the meaning of subsection 1(1) of the Act. We would need to find that there was a causal relationship between the worker's job duties and the development of his low back pain. The panel was not able to make that finding.
On the evidence before us, the panel was not satisfied on a balance of probabilities that there was sufficient evidence to positively link the worker's back condition to an acute workplace event. The worker's explanation of the mechanism of injury has never been clear and has varied slightly from conversation to conversation. We were particularly concerned in this case with the inexplicable delay in reporting. At the hearing, the worker's evidence was that prior to June 6, 2012, he was fine and he did not have to take care of his back in any way. When he woke up on June 7, he was sore and he had a very sharp pinching feeling in his low back and right groin which extended down his leg. He was "in rough shape" and could hardly walk 10 steps and not be in pain. If the worker's pain was as significant as he described, the panel cannot understand why the worker did not report the injury by filling out a green card until June 19, approximately ten days later. We acknowledge that he was off work from June 7 to June 11, 2012, but this does not explain why he did not report his injury at any time on June 12, 13, 14 or 15, 2012. On each of those days, he worked his full eleven hour shifts. This is particularly puzzling given the fact that the worker has a history of previous WCB back claims and they were all reported promptly. In view of this evidence, we are not convinced that there was a specific event at work which was the cause of the worker's back pain.
To be clear, the panel does not doubt that the worker experiences low back pain. We are just not satisfied that an event at work was the cause of his pain. We note that the CT imaging studies taken of the worker's spine show degenerative changes at more than one level of his lumbar spine; these changes would not be attributable to an acute event at work.
With respect to the union representative's argument regarding application of the presumption, although he referred to the Policy, the actual presumption is contained in the Act as follows:
Presumption
4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.
The panel's interpretation of the statutory presumption is that it only applies in cases where one part of the "arising out of and in the course of employment" test is met (i.e. the accident either clearly arose out of work or occurred during the course of work) and there is an absence of contrary evidence to rebut the other part of the test. If that is the case, the other half of the test will be presumed to have been met.
In the present case, the worker testified at the hearing and indeed, has been available to give evidence since the claim for benefits was first filed. There exists ample evidence for the panel to consider to either confirm or rebut the presumption. In the circumstances, it is our view that the presumption has no application in this case. We have sufficient evidence to make a determination on the facts without resorting to the presumption.
In summary, the panel finds that the evidence is insufficient to establish on a balance of probabilities that the worker's low back pain is related to an acute event or incident which occurred at work on June 5 or 6, 2012. We therefore find that the claim is not acceptable. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 13th day of March, 2013