Decision #117/14 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker suffered personal injury arising out of and in the course of his employment on November 19, 2013. A hearing was held on September 2, 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 low back injury that occurred at work on November 19, 2013. The worker described the accident as follows to the WCB's call center:

I was the van driver for the day. The snow boot covers I normally wear were too big to manage operating the foot pedals of the van so at the jobsite I was changing my boot covers and I was bending over putting on my snow boot covers and as I went to stand up I heard a pop in my back. I started experiencing the pain. I worked that shift. The lower back pain sends numbness down my left leg.

The worker said he reported the accident to his supervisor on November 20, 2013.

On November 22, 2013, the Employer's Accident Report indicated that they were protesting the acceptance of the worker's claim as the worker had been engaged in a natural body movement when he experienced the pop in his back. There was no work activity involved.

A doctor's first report dated November 20, 2013 diagnosed the worker with a disc protrusion resulting from the November 19 incident when the worker "bent over to put shoe on and felt a pop in his back."

On November 26, 2013, the worker advised the WCB adjudicator that his employer supplies the anti-slip overshoes.

On November 27, 2013, the employer was advised that the worker's claim for compensation was accepted as the WCB found that the worker suffered a personal injury due to an accident arising out of and in the course of his employment. The adjudicator stated: The report of injury is such that [the worker] was bending over to put on anti-slip covers which are provided by the employer and in the process he sustained a personal injury.

On December 4, 2013, the employer appealed the November 27 decision to Review Office. The employer noted that following the reported incident, the worker reported that he had back symptoms prior to November 19, 2013 and was taking medication for his symptoms. This was evidence that the worker had a pre-existing deteriorating condition that was at a critical point to manifest a disability. The employer felt that the worker would have developed his back condition regardless of his activity.

On January 9, 2014, the worker underwent an MRI assessment of his lumbar spine which revealed:

  1. Large left paracentral L2-3 disc extrusion with inferior migration of disc material.
  2. Moderate left paracentral disc protrusion at L3-4.
  3. Moderate focal central disc protrusion at L4-5.
  4. Broad left foraminal disc protrusion at L5-S1.

On January 27, 2014, Review Office found that the worker's claim for compensation was acceptable. Review Office placed weight to the following factors in making its decision:

  • the worker was putting on anti-slip covers provided by his employer when the accident occurred.
  • the worker denied prior back problems and he performed his regular duties until November 19, 2013 and had not performed them since then.
  • the worker reported to co-workers that he hurt his back putting on his anti-slip shoe covers on the day of the accident.

Review Office also noted that based on the employer's investigative report into the accident, there were several witnesses from the worker's crew who indicated that the worker had shoe slip covers on when he started his shift and that this would bring into question the worker's accident

description as he claimed to have injured himself putting the shoe slip covers on during his shift. Despite these witness reports, Review Office noted that the worker did not appear to be injured at the start of his shift but there were later witness reports that the worker complained all day about his back and he was seen crawling around on all fours. This supported that the worker suffered an injury during this shift on November 19, 2013. On April 7, 2014, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The employer is appealing the WCB's decision that the worker's claim is acceptable.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Employer's Position

The employer was represented by its WCB Specialist, Human Resources. The employer representative said that the facts of the case do not meet the requirements of an accident as defined by the Act. The employer representative submitted that the WCB Review Office decision should be overturned.

She submitted that:

  • the evidence does not support the worker's position that he bent down to put the anti-slip shoe covers on his work shoes causing the pinch in his back. She noted the evidence of co-workers that the worker had his shoe covers on at the start of the shift. This shows that the accident did not arise out of or in the course of employment.
  • the worker acknowledged having prior back problems.
  • the worker would have developed the back condition regardless of his activity.
  • the worker was self-medicating for back pain prior to the alleged incident.
  • the only evidence to support the worker's claim is his complaint of pain on bending which is subjective.
  • although the event was possibly in the course of employment, the diagnosed condition could not arise from simply bending over and therefore did not arise out of the employment.
  • the majority of medical information available confirms that disc herniations (protrusions) are usually due to age-related degeneration.

In response to questions from the panel, the worker's representative advised:

  • she did not know the process for determining when a particular worker would be assigned responsibility for driving the company vehicle to the worksite.
  • the anti-slip shoe covers attach to work boots and have spikes on the bottom.
  • one half inch is a good estimate of the length of the spikes.
  • she assumes the vehicles have automatic transmission.
  • witnesses confirm that the worker had the shoe covers on at the start of the shift, but there are no witnesses as to whether the worker took the shoe covers off to drive.
  • the reference to self-medicating was to the worker's acknowledgement that he had used an over the counter pain medication for back pain in the past.
  • she is not familiar with whether drivers remove the shoe covers when driving.
  • there was no evidence that the worker had an injury when he worked on the prior Friday and no evidence that he was injured before or at the start of his shift on the day of the accident.
  • it is a job requirement that the worker wear the shoe covers to prevent injuries.

The employer's representative stated that the employer does not believe that the worker bent over and suffered the injury.

Worker's Position

The worker did not participate in the hearing.

Analysis

For the employer's appeal to be successful, the panel must find that the worker's back condition did not arise out of and in the course of his employment. The panel is not able to make this finding.

The panel finds that the worker's injury is related to his employment and that his claim is acceptable. The panel finds that the worker's act of bending over to put anti-slip shoe covers on his work boots at the worksite caused the diagnosed injury.

In reaching this decision the panel relies on the following:

  • the use of anti-slip shoe covers is a job requirement.
  • the evidence provided from the employer's investigation does not contradict the worker's evidence that he removed the anti-slip covers to drive the employer's vehicle to the worksite.
  • the worker was able to perform his full regular duties prior to November 19, 2013.
  • at the start of the shift on November 19, 2013, the worker did not complain of pain and was able to drive the employer's vehicle to the worksite.
  • the worker advised co-workers that he injured his back bending over to put the anti-slip covers on his work boots and demonstrated significant pain behavior throughout the work day, once at the work site.

The panel notes the MRI report which demonstrates lower back disc protrusions. The panel notes the worker's evidence that he bent over to put on anti-slip covers and felt a pop and pain in his lower back with pain and numbness down his left leg. The panel finds this description is consistent with the findings of the MRI of lumbar disc extrusions and herniations, and the clinical findings of left leg radiculopathy noted by numerous medical reports on file. The panel accepts the worker's evidence that he removed the anti-slip shoe covers to drive the employer's vehicle and injured his back when he bent down to put on the anti-slip shoe covers. The panel finds that this mechanism of injury is consistent with the diagnosed lumbar spine disc injury. The panel finds, on a balance of probabilities, that the worker injured his back while performing his employment duties on November 19, 2013.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of September, 2014

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