The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker was represented by a worker advisor who made a submission on behalf of the worker. The worker answered questions posed by his representative and the panel.

The worker advisor advised that the worker disagrees with the Review Office decision. She stated that Review Office was wrong in concluding there were 3 different descriptions of the worker's accident. She submitted that there is only one description: the worker injured his lower back on the left side while in the course of his employment on the employer's premises. She noted the employer confirmed the worker reported the accident to the employer, on the evening that it occurred, while he was at work on the employer's premises.

She submitted that the worker's claim is acceptable pursuant to the following provisions of the Act:

• subsection 1(1)(b)(ii) which defines an accident as including anything that is done and the doing of which arises out of, and in the course of, employment
• subsection 4(5) which provides, in part, that where an accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

Regarding the worker's duties on the day of the accident, the worker advised that they primarily involved shunting trucks, which is moving trailers around the employer's premises. He advised that his shift began at 3:30 p.m. and that the day was very cold. He said that the special shunting truck was not available so he was using a regular truck which required climbing and twisting to enter and exit the cab. The truck had a manual transmission which required clutching. The duties also involved cranking the dollies on the trailer and opening and closing trailer doors. The worker had to walk about the worksite which he described as uneven and covered with snow and ice.

The worker described the circumstances surrounding the accident. He said that he had shunted at least 15 trailers before the accident. He said that he got out of a truck and began walking beside the truck when he felt a stabbing pain that went down his lower left side. He said his leg started burning and getting weaker.

The worker advised that after the accident, he continued to work in pain and finished his shift. He was not certain if he worked extra hours closing up that night. He also confirmed that he did not work the next two shifts because there was a shortage of work.

When asked about the descriptions of the accident provided by his family physician and physiotherapist, he said that they misunderstood his explanation of the accident.

The worker provided information regarding his duties on the day prior to the injury. On that day he was required to hand bomb approximately 15,000 to 17,000 pounds of material. He was generally sore from the effort but he did not have any severe or unusual symptoms on that day or the following morning.

In answer to questions from the panel, the worker provided details of the medical assistance he has received. He advised that in addition to his family physician, he has seen a neurologist, a specialist, a pain clinic specialist and a physiotherapist. He received physiotherapy until his coverage limit was met. He also had an MRI scan.

The worker advised that the neurologist did not find a nerve problem. He was also told that he did not require surgery for his back injury. He attended a Pain Clinic for treatment. He was offered treatment but declined the treatment because the risk of complications was too high. He said his understanding is that he has bulging discs which are pressing on his nerves.

He has been cleared to return to work to light duties but because his claim has not been accepted by the WCB, his employer does not have light duties for him at this time.

The worker advisor noted that a claim can be accepted without a specific accident or incident. She also noted that the existence of a pre-existing condition does not negate a claim or entitlement. She submitted that the accident occurred while the worker was in the course of his employment while on the employer premises. She submitted that there is no evidence that the claim is not acceptable.

Employer's Report

The employer was represented by an advocate who participated by teleconference.

The employer representative advised that the employer does not disagree that the pain occurred while the worker was at work. He noted there were 4 records on file dealing with the injury which indicate the worker was walking when he felt a sudden sharp pain down his back in the left side. He noted there was no clear twist or fall to cause an injury. He said that this is not an acceptable accident. He said that there was no hazard of employment that caused the pain, nor any environmental hazard present that could have caused the pain.

The employer representative did not disagree with the job description provided by the worker.

Regarding the diagnosis of left piriformis spasm and sciatica, the employer representative noted that these conditions are usually related to a pre-existing condition. With respect to the diagnosis of a disc herniation, the representative said that such an injury is usually age related or due to a sudden twist. He said that under WCB Policy 44.10.20.10, Pre-existing Conditions, the WCB does not compensate for pre-existing conditions. He submitted as there was no hazard of employment that caused the injury, the claim is not acceptable.

Analysis

The issue before the panel is claim acceptability and whether the worker’s back injury arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the worker’s injury was caused by an accident that arose out of and in the course of his employment. In other words, that the worker's job duties with the employer were the cause of his injury. The panel was able to make this finding.

The panel finds, on a balance of probabilities, that the worker's duties as a truck driver, and specifically his duties on January 10, 2014, caused the worker's injuries. In reaching this decision the panel finds that the worker's duties are very physical. His primary duty on January 10th was shunting trailers in the employer's yard. This involved:

• climbing in and out of a large truck
• connecting and disconnecting trailers and air hoses from the truck
• moving the trailers including backing-up the trailers
• cranking the dollies on the trailers to raise and lower them

At the time that the worker felt the pain in his back he had already moved approximately 15 trailers. The panel notes this injury occurred in January and accepts the worker's evidence that the surface of the work yard was uneven and ice-covered and his evidence that the dollies were frozen and took significant physical effort to operate.

The panel finds that in performing these duties the worker injured his left lower back and that his claim is acceptable. The panel notes that the worker had just finished cranking up dolly legs, had moved the truck forward to make room to swing the doors closed and climbed down from the cab of his truck and was walking along side the truck to complete his task. His duties involved significant twisting, stretching and walking on uneven surfaces as well as significant exertion in cranking the dollies in a cold weather environment. The sudden onset of pain was due to the duties he performed. The panel finds that the signs and symptoms of the injury appearing mid shift was in reasonable proximity to the job duties and is consistent with the sciatica/disc problem diagnosed by the worker's attending physician and physiotherapist.

There was discussion regarding whether the injury was a result of a hazard of the employment or the employer's premises. Given the panel's conclusion that the accident arose out of and in the course of the worker's employment, the panel finds it unnecessary to consider this argument and the related WCB Policy, 44.05.20.

The panel attaches no significance to the slight variations in the accident description provided by the family physician and physiotherapist and accepts the description which has consistently been provided by the worker.

The panel finds that it is not necessary to consider subsection 4(5) of the Act as the evidence, weighed on a balance of probabilities, establishes that the injury occurred both in the course of the worker's employment and arose out of the worker's employment.

Finally the panel notes there was considerable discussion regarding the worker's duties on January 9, 2014, the day prior to the accident to ascertain if an injury had occurred that day. On that day, the worker was required to move a significant number of heavy boxes but did not physically lift any boxes. The panel notes that in answer to a question about how he felt the morning of January 10, 2014, the worker said he felt sore and stiff as usual but had no specific pain. The panel finds that an accident did not occur on January 9, 2014.

The worker's claim is acceptable and his appeal is approved.