The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he did not sustain personal injury by an accident arising out of and in the course of his employment. A hearing was held on April 17, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a herniated disc that occurred on January 14, 2013 while employed as a field technician. The worker described the accident as follows:

I truly don't know how I did it. I delivered a couple of wheelchairs. I repair wheelchairs and deliver them. The week before I had a heavy week repairing motors and batteries. I didn't think Monday Jan 14th that I had done anything significant to cause it. But around 1:30 /2:00 my leg started to twinge and I started to get pains by evening. When I got back in the van I sat in the seat and then my left leg (in the hip area) on the outside of the leg started twitching/twinging. I thought it was strange. I didn't sleep that night. I had excruciating pain in my left leg. I went to work the next day and I was limping and told my supervisor that it really hurt. I worked every day. I can't afford to take time off. My supervisor has been giving me easier stuff to do to help me as much as he can. It's getting to the point where I picked up a power wheelchair which is really heavy and awkward and I hurt myself again. I can really feel it in my left hip. So I thought I'd better call and report it. My left leg and foot are numb. It started on the Monday, Jan. 14th and has continued. I've been popping pain pills but nothing has helped.

A Doctor's First Report showed that the worker attended for treatment on January 16, 2013 with complaints of left leg pain for two days. The diagnosis outlined was left L5 neuropathy - L4-5 disc herniation.

An x-ray of the lumbosacral spine dated January 21, 2013 indicated normal alignment and the disc spaces and vertebral body heights were well preserved.

A doctor's progress report dated February 6, 2013 indicated a diagnosis of left L5 nerve root lesion and that the worker's symptoms were improving. In a medical certificate dated February 6, 2013, the physician stated that the worker should not lift more than 50 pounds and that he should avoid prolonged or frequent stooping.

On February 8, 2013, the worker discussed accident details and his injury with the WCB adjudicator. At that time, he also advised the WCB of an incident which occurred on January 30, 2013. The worker stated that he was trying to push a power wheelchair up the ramp and while doing so the battery pack fell out of the back of the wheelchair. As a result of this incident, the worker felt an increase in back pain.

The WCB also spoke with the employer and a co-worker regarding accident history and reporting.

By letter dated April 16, 2013, the worker was advised that his claim for the incident of January 14 as well as January 30, 2013 for back difficulties was denied given the absence of confirmation of the accident history by the employer as well as reporting of a work related incident to his healthcare providers. The adjudicator referred to the following in support of her decision:

Information provided on your Workers Report of Injury form dated January 24, 2013 indicates that you experienced twinges and twitching in your left leg when getting back into your work van on January 14, 2013. You indicated that you didn't know what happened and didn't recall anything specific occurring to cause it. Prior to this occurring, you had indicated that you did not have any similar symptoms. The medical report received from your physician dated January 16, 2013 reports left leg pain for 2 days and does not report an accident history.

In your conversation regarding your claim you indicated that following the incident on January 14, 2013 you continued to work. You reported that on January 30, 2013 you sustained further injury to your back when a battery pack fell out of a wheelchair as you were loading it into your van and you experienced an increase in severe numbness down your left leg. You subsequently missed January 31 and February 1, 2013 in relation to

this incident. In speaking with the co-worker, we were unable to confirm the date of injury regarding this incident.

On July 15, 2013, the worker's case was considered by Review Office as the worker appealed the WCB's decision of April 16, 2013. Following its review of the file evidence, Review Office was unable to establish that the worker sustained personal injury by an accident arising out of and in the course of his employment. Review Office referred to the following file evidence in making its decision:

• the worker thought his injury was due to the weight of the power wheelchairs and that he did not have a working winch in his van. As the worker had no difficulties prior to January 14, 2013, Review Office could not find sufficient evidence to relate the worker's symptoms to working without a winch over an extended period of time.

• the worker established a claim for a specific injury occurring on January 14, 2013. The worker was unsure how he sustained the injury but indicated that when he got into the van and sat down the outside of his left leg started twitching. Review Office stated that this was the incident it would consider when determining if there had been an accident.

• the worker said he stepped into the van, sat down and felt left leg/hip pain. Review Office found that the worker's left leg difficulties were not caused by a hazard which resulted from the nature, conditions or obligations of the employment. The worker got into a vehicle and sat down. He did not report any awkward movements or anything transpiring that was different from every other time he got into the van.

• the worker said his back pain increased on January 30, 2013 and he was unable to work on February 1 and 4, 2013. The employer could not confirm this incident and the worker did not seek medical treatment until February 6, 2013.

• the co-worker could recall the worker mentioning this incident but he could not recall when the incident occurred. The worker's e-mail to his supervisor dated January 30, 2013 mentioned difficulties with his left leg and not his back. The email did not contain any information regarding the January 30, 2013 incident.

• subsequent to January 14, 2013, the worker sustained a workplace injury on March 28, 2013 and an MRI dated May 7, 2013 showed mild to moderate degenerative disc disease with a shallow disc protrusion at L5-S1. There were no signs of nerve root compression.

• Review Office noted that a WCB medical advisor saw the worker on June 5, 2013 with respect to his March 28, 2013 claim. Review Office stated: "...the medical advisor indicated in the examination notes of June 5, 2013 that the worker continued to have foot
• drop, which was initially reported after the January 14, 2013 incident. Foot drop is typically caused by an L4 nerve impingement. It can also be caused by a stretch injury to the nerve root or sciatic nerve or a local lesion to the peroneal nerve. The MRI did not show a lumbar nerve root impingement to account for this. The worker had been told that he may have herniated a disc in January 2013, but it resolved by the time the MRI was done in May 2013. The medical advisor expressed the opinion that while this is possible, it is highly unlikely that a disc that was severe enough to cause foot drop would resolve fully within a few months."

On July 15, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 17, 2014.

Reasons

Applicable Legislation:

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.

The worker’s position:

The worker was assisted by a union representative at the hearing. It was submitted that the events of both January 14 and January 30, 2013 constituted an accident in accordance with the Act. All three key factors for finding an acceptable claim were present. There was an accident, there was a personal injury and the accident arose out of and in the course of the worker's employment. It was submitted that the worker's job duties in maneuvering and jockeying wheelchairs in and out of the van caused him to suffer a disc herniation in his back, and that his claim ought to be accepted.

The employer’s position:

The employer did not appear at the hearing but relied on its previous written submissions provided to the WCB. The employer supported the determination made by the WCB after a complete review of the file. The employer felt that there was no evidence that an injury took place in the course of employment which would cause the condition outlined in this claim. The worker stepped into his van then developed left leg difficulties which could not be caused by a hazard resulting from the nature, conditions or obligations of the employment. Furthermore, MRI findings showed mild to moderate degenerative disc disease, which may be a factor in the injury.

Finally, it was noted that the worker had several open WCB claims. The frequency and circumstances surrounding those claims raised concerns by the employer as to the worker's casual approach to safety or potential underlying intentions. Motivation was of particular concern given that the worker had ceased to be employed by the employer. It was also noted that the worker performed private work as a vehicle mechanic during his off hours. Overall, the employer submitted that the WCB's decision of not accepting the claim should stand and requested that the appeal be denied.

Analysis:

The issue before the panel is claim acceptability. For the worker’s appeal to be successful, we must find on a balance of probabilities that the worker's lumbar disc herniation was caused by his work duties performed during the course of his employment on January 14, 2013. We are able to make that finding.

At the hearing, the worker described the job duties he was performing on January 14, 2013. He was at his last location for that day and he had an extensive amount of work to do there. When he arrived, he was "100 percent fine." When he left, he was having spasms in his leg, the likes of which he had never experienced before. While at the location, his job duties involved delivering and repairing wheelchairs. The worker estimated that manual wheelchairs weighed approximately 35 to 100 pounds. Power wheelchairs started at about 200-250 pounds and could weigh up to 400 pounds or more. To get the wheelchairs in and out of his van he would have to jockey them onto an aluminum ramp. Although some vans had a winch to aid in this task, the van used by the worker did not, so he had to physically maneuver the wheelchairs. Some of the lighter manual wheelchairs he could fold up and carry, but the power chairs had to be carefully guided down. On the day in question it was the middle of winter so the ground was iced and slippery. The worker could not exactly recall but he believed he performed a couple of battery changes while at the location and delivered two power chairs and three manual chairs. He could not recall whether or not he had to pick up any chairs. He did recall having a difficult time getting the chairs out of the van as it was particularly slippery that day. When he completed his work, he returned to the van and when he sat down, he realized that his leg was in spasm. The worker described it as feeling like someone was shocking him and his muscles were expanding and contracting on their own. He could not control the spasms. He went home and tried to run it off on his treadmill but found that his foot was just "slapping" on the treadmill and he could not get his leg to do what he wanted it to do. At this point the worker realized he had done something to his leg and reported it to his supervisor the next day.

In the panel's opinion, the physical job duties which the worker was performing on the day in question are consistent with activity which can cause a disc herniation. While the WCB focused its considerations on the worker's actions in stepping into the van and sitting down, the panel finds that the mechanism of injury involved a wider range of activity than just getting into the van. The job duties that the worker was performing just prior to getting into the van were physically demanding and required the worker to push, pull and twist heavy weights with force, and sometimes at awkward angles. We accept that these actions could have caused the worker to suffer a lumbar disc herniation.

The worker reported his leg/back difficulties to the employer the next day, January 15, 2013. He sought medical attention from his regular physician on January 16, 2013. The initial findings and diagnosis identified by the physician are consistent with the mechanism of injury described by the worker. The panel accepts that the worker experienced a distinct change in his medical presentation after performing his job duties on January 14, 2013.

At the hearing, the worker also described his work-related activities on January 30, 2013. Given our finding that there is an acceptable claim for January 14, 2013, it is not necessary for the panel to decide whether or not January 30, 2013 constitutes a separate accident. There is sufficient evidence to find that there was an exacerbation of his existing compensable injury on that date.

In view of the foregoing, the panel is satisfied on a balance of probabilities that the worker sustained a lumbar disc injury during the course of his employment on January 14, 2013. As such, his claim is acceptable. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of June, 2014