The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that the evidence did not establish that his back injury was due to an accident arising out of and in the course of his employment on April 11, 2012. A hearing was held on February 12, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On July 30, 2012, the worker filed a claim with the WCB for a low back injury that occurred on April 11, 2012 which he related to his job duties that involved testing pumps. The worker indicated that he completed a green card and reported the injury to his employer on April 26, 2012 as he had been hoping that his back condition would go away. He wore a back brace for a couple of weeks but his condition gradually worsened. He was off work from July 18, 2012 to July 23, 2012.

The employer's incident report dated July 26, 2012, stated that the worker was performing his normal duties when he strained his back from pulling on the pump recoil rope.

On August 1, 2012, a WCB adjudicator spoke with the worker about his injury. The worker noted that he carried the pump to the river and was pulling on it to start it up. He was working on a couple of them when he felt pain in his low back. He was able to complete his shift. He did not report or mention his difficulties to anyone on the day of accident. His pain got progressively worse and he formally reported it to his employer on April 26. The worker indicated that he tried to get an appointment with his doctor in early May but was not able to see him until May 16. The worker told his doctor that his low back was hurting and that he hurt it at work cranking pumps. He continued working with pain and only missed a half day from work to go for an MRI on July 18.

On August 1, 2012, the adjudicator spoke with the worker's supervisor. The supervisor indicated that he was not sure when the worker reported an injury but a green card was signed on April 26. He said an injury may have been reported on the day it happened but he could not confirm this with certainty.

The worker was seen by his family physician for treatment on May 16, 2012. On July 31, 2012, the receptionist from the physician's office advised the WCB that the worker came in for a complete physical on May 16. The worker complained of low back pain that came and went. A work-related mechanism of injury was not reported by the worker. A clinical diagnosis was not provided at the time of the exam.

An MRI taken July 18, 2012 was read as showing degenerative disc changes with disc height reduction at L4-L5 and L5-S1 levels with no thecal sac compression/nerve root impingement. It also showed multilevel posterior facet degenerative changes.

On August 1, 2012, the worker was advised that the WCB was unable to establish that an accident occurred on April 11, 2012 to his low back. The adjudicator based her decision on the worker's delay in reporting the injury to his employer, no confirmation of reporting from the time of the incident to the time of completing the green card and the delay in seeking medical attention. On August 3, 2012, the worker appealed the decision to Review Office.

On October 4, 2012, Review Office stated that it was unable to establish that the worker's back complaints were related to an accident arising out of and in the course of his employment on April 11, 2012. In making its decision, Review Office relied on the information provided by the worker on his WCB incident report that he reported an injury to his employer on April 26, 2012 and not on the day of its occurrence. Review Office also noted that the worker did not report to his treating physician that his back pain began and was caused by cranking pumps in April 2012. Review Office also considered the information from the hospital imaging report that the worker's back complaints were of long duration. On October 23, 2012, the worker appealed the decision to the Appeal Commission and a hearing was held on February 12, 2013.

Following the hearing, the appeal panel decided to obtain additional information from the worker's treating physiotherapist. A report was later received from the physiotherapy facility where the worker attended for treatment. The report was forwarded to the worker and his employer for comment. On April 17, 2013, the panel met further to discuss the case and render its final decision.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act ("the Act"), regulations and policies of the WCB's Board of Directors.

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.

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s lower back injury arose out of and in the course of his employment.

Worker's Position

The worker attended the hearing with his spouse. He explained his reasons for appealing the WCB Review Office decision.

The worker described his work duties and his activities on the day he was injured. He said that he was testing pumps that are used for fire fighting. There are three types of pumps which range in weight from 10 pounds to 50-60 pounds. He moved the pumps from the maintenance building to a spot near a river. He used a trailer to move the pumps. He unloaded the pumps by the water and tested each. This involved starting the pumps. He said that some of the pumps are more difficult to start, "the bigger the pump, the harder it is to pull."

He said he hurt his back while cranking or pulling a pump. He also advised that he was cranking a larger pump which has more compression and is harder to start. He said that he had one foot on the pump and was pulling straight up then felt pain. He said "I felt a sharp pain in my back and I felt sick." He said the pain was in the center more to the left side.

The worker advised that he usually works by himself and did not see any other staff around the grounds on the day of the injury. The next day the worker said that "I went back to work next day, yeah. I was still sore. I believe it was the next day, probably, that I did go into the office and bring it up with some of the guys in there. Now, in particular maybe that’s when I should have filled out my green card but I didn’t, thinking that this was all going to go away. Because in the past I have injured my back before and it seems to have got a little better so I just - and I have to get my work done and there’s no one else there to do it but myself so I just went to work."

The worker advised that he obtained physiotherapy treatment. He said that he did not think the physio really helped except when the physiotherapist used a machine on his back. He said that he felt better after massage therapy.

The worker acknowledged that his back has been a "problem" for a few years.

Employer's Position

The employer was represented by its WCB Coordinator.

The employer representative reviewed the worker's job and his employment file. She advised that she checked the worker's sick leave record and noted that he has accumulated a significant amount of sick leave. She said that over 29 years of employment the worker had two workplace incidents. She noted that the past incidents were reported over a period of time and not immediately. She noted that this claim followed the same pattern. She also referred to the letter of support provided by the worker's supervisor.

The employer representative suggested that it may be appropriate to obtain additional medical information to assist with the adjudication.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the worker's low back injury arose out of and in the course of his employment. The panel was able to make this finding.

After the hearing the panel obtained information about the worker's physiotherapy treatments. Unfortunately, the treating physiotherapist was not available to respond, however, another physiotherapist at that clinic reviewed the records and provided a report. She noted that the treating therapist's diagnosis was possible disc injury, discogenic pain. She also noted the findings of the treating therapist supporting that diagnosis. The panel also notes that the worker did provide a work-related history that referenced lower back pain radiating down his left leg after carrying pumps.

Relying upon this report and the worker's evidence, the panel finds that the worker injured his back while performing his duties and suffered discogenic pain as a result of the workplace injury. In support of this conclusion, the panel notes that the mechanism of injury described by the worker is consistent with the diagnosis provided by the treating physiotherapist. The panel also accepts the worker's explanation that he initially treated himself by wearing a back brace. He modified his duties to avoid heavy work and got help from co-workers. At home, his sons assisted with chores. He also advised that he is a hunter and has modified the way he hunts, no longer walking long distances and climbing over trees.

The panel notes that the WCB and Review Office had concerns regarding the worker's delay in reporting the incident. In response to this concern, the employer representative reviewed the worker's employment file and found that the worker had two workplace incidents over a 29 year span and that in each there was a delay in reporting. The panel accepts the worker's explanation that he mentioned his sore back to a co-worker but that he did not file a green card because he thought the injury would just resolve.

The worker's appeal is accepted.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 24th day of April, 2013