The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable for an accident occurring in the workplace on February 14, 2013. A hearing was held on March 13, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On March 18, 2013, the worker filed a claim with the WCB for a low back injury that happened on February 14, 2013 while employed as a school custodian. The worker reported that he threw a full shovel of snow over a snow bank and he wrenched his back. The worker did not seek medical treatment until March 7, 2013 as he thought the pain would work itself out. The worker said he reported the accident to his employer on February 15, 2013.

The Employer's Incident Report dated March 8, 2013, stated that the worker did not report his low back injury until March 7, 2013.

A Doctor's First Report showed that the worker attended for treatment on March 11, 2013 and reported that he twisted his low back from shoveling snow away from a building. The diagnosis was a back strain and x-rays of the lumbosacral spine taken the same day showed mild multilevel facet degeneration.

On March 21, 2013, the worker provided the WCB with additional information related to the events that occurred on February 14 while shoveling snow. The worker reported that he told a teacher that he hurt his back from shoveling snow and that he made ongoing complaints to the principal of the school.

On April 10, 2013, the WCB adjudicator spoke with the teacher and the school principal and both indicated that they were not aware of the worker injuring his back until March 7, 2013.

On April 11, 2013, the worker was advised that his claim for compensation was not acceptable as he delayed in seeking medical treatment until March 11, 2013 and his employer first learned of a workplace accident on March 7, 2013. Due to the delays in seeking medical treatment and reporting the injury, the WCB was unable to establish an accident "arising out of and in the course of" employment.

On April 18, 2013, the worker appealed the adjudicator's decision to Review Office. The worker indicated that he did not report the injury to the WCB at the time it happened as he thought his injury was not serious.

In a June 27, 2013 decision, Review Office confirmed that the claim was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of employment. The decision was based on the worker's delay in reporting the accident to his employer and his delay in seeking medical treatment. Review Office pointed out that the reporting of the injury on February 15, 2013 was not confirmed by either the teacher or the school principal. In November 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested further medical information which was forwarded to the worker for comment. On May 16, 2014, the panel met again to discuss the case and render a decision.

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 self-represented at the hearing and asked that his WCB claim be accepted. The worker advised that on February 14, 2013, he was shoveling snow at his workplace. He had been instructed to shovel the snow away from a window so the water would not seep into the building. It was a confined area with not much room between the snow bank and the wall. While performing the work, the worker twisted his back and suffered an injury. At first he thought the injury was minor and would resolve in a day or two. Instead, the pain got progressively worse and on March 7, 2013, he went to a walk-in clinic where he was given a prescription for medication. The worker continued to attempt to perform his full regular duties but on March 11, 2013, he had only worked half the day when his lower back and legs were in extreme pain. He could hardly walk the hallways so by 11:00 am he left work and went to see his family physician. The worker was off work for two weeks and started attending physiotherapy. He tried to return to work, but could not continue due to the pain. April 1, 2013 was his last day at work.

At the time of the hearing, the worker advised that he continued to experience limitation in his back. As of that date, he had used all of his sick and vacation time and was receiving disability benefits. The worker indicated that his physician had cleared him for lighter duties, but he could not return to his full regular duties. He had attempted a return to work in February 2014 but after two and a half weeks, he could not handle the work and had to discontinue.

The employer’s position:

The employer was represented by a workplace safety and health coordinator at the hearing. The employer took no formal position on the appeal, but did provide some background information. She advised that the incident was reported late to the employer. The employer had best practices in place with a formal reporting and investigative process. Safe work procedures were in place for custodial duties. On March 7, 2013, after the WCB claim was filed, an investigation was conducted. The employer representative was able to confirm that the area where the worker was performing the shoveling was tight due to the snow which had piled up against the building and that her recommendation was that the snow be removed by automated equipment, not by hand. Ultimately the employer contracted a front end loader to complete the task.

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 low back condition was caused by his work duties performed during the course of his employment on February 14, 2013. We are able to make that finding.

At the hearing, the worker described the job duties he was performing on February 14, 2013. A large drift of snow approximately six feet high had accumulated near a window. The worker had been instructed to remove the snow as water was seeping into the building. The area was very confined and there was only a space of approximately two feet between the wall and the snow drift. The worker had to shovel the snow then lift and twist to throw it up and over the snow bank. He performed this job for a while, but then had to discontinue as he ran out of room to put the snow.

At the hearing, the employer representative confirmed that the space where the worker was shoveling was very narrow and that there was a large amount of snow. After viewing the situation, she recommended that the snow be removed by automated equipment as the job was too large to be done by hand.

After considering the actions the worker was performing on the date of the accident, the panel is satisfied that the mechanism of injury is consistent with suffering injury to the lower back. The task was a departure from the worker's regular duties and it was a very large job to perform. We accept that the worker suffered injury to his back while doing the shoveling.

When the matter was considered by the WCB, weight was placed on the fact that the worker delayed in reporting his injury and that co-workers were not able to confirm his complaints of back pain. Based on his presentation at the hearing, the panel finds that the worker is not the type of person to complain and we accept his evidence that he simply tried to work through the pain until it reached the point where he could no longer function in the workplace. We find the worker credible in his explanation.

The worker's evidence at the hearing was that prior to injuring his back at work, he had had no problems with his back since he recovered from his previous work-related back injury sustained in 2006. Medical charts from the family physician confirmed that prior to his March 11, 2013 appointment, the worker had last been seen at the clinic in November 2006. This evidences many years without the need for medical attention. The worker's employment history was that he had worked as a handyman in 2007 and 2008, then started his custodial duties with the employer in 2009. The worker was therefore able to perform physical work on a regular basis for several years prior to the date in question. The panel accepts the worker's evidence that his back was fully functional prior to the accident and that he experienced no problems with it. As a result of performing the shoveling duties, he suffered a sudden and distinct change in his medical presentation.

The doctor's first report from the family physician dated March 11, 2013 gave a diagnosis of back strain. Symptoms in the left leg with numbness in the toes were also noted.

Following the hearing, the panel requested additional medical information. The medical chart notes from a walk-in clinic where the worker first attended for medical attention on March 7,

2013 indicated sciatica with an assessment of tenderness at the lower back radiating to the left lower leg.

A narrative medical report was provided by a physiotherapist who provided treatment to the worker in March and April 2013. In a letter dated April 16, 2014, the physiotherapist gave a probable diagnosis of mechanical low back pain with radiculopathy and possible spinal stenosis.

A physiotherapist who treated the worker from September 2013 to January 2014 also indicated a diagnosis of lumbar spine stenosis.

The panel accepts that a component of the worker's mechanical low back pain with radiculopathy is attributable to a workplace accident. Our decision, however, is limited to the back strain/mechanical low back pain with radiculopathy. In the reports from the physiotherapists, there is a proposed diagnosis of spinal stenosis. The panel does not accept the diagnosis of spinal stenosis as this type of medical condition and its effects are attributable to aging and would not be caused by the performance of workplace duties on February 14, 2013. Accordingly, while the panel accepts that the worker suffered an injury to his back as a result of shoveling at work on February 14, 2013, we do not make any decision regarding how long the worker's back remained injured after that date. It will remain for the WCB to decide the question as to how long the worker's limitations in his back remained attributable to the February 14, 2013 accident.

The panel therefore finds that the worker's claim is acceptable. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of July, 2014