The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her claim for compensation was not acceptable.  A hearing was held on February 24,2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 28, 2014, the worker filed a claim with the WCB for "right buttock to ankle" pain that she related to the following incident:

I was standing and suddenly felt the pain. The environment was cold. I was assigned to a different place. I didn't have any extra clothes to put on. I went to my doctor and she said I have sciatica, slipped disc. I was feeling it before but only mild. So ignored it as it mostly went away.

The date of accident was August 2, 2014. The worker reported that her supervisor was not available on the date of accident so she reported it on August 4, 2014.

The employer's accident report dated August 29, 2014, indicated that no injury or accident occurred and that the worker reported that her condition was not work-related. At the beginning of her shift on August 4, the worker reported to her supervisor that prior to coming into work she was experiencing right leg discomfort.

On September 16 and 18, 2014, a WCB adjudicator obtained additional information from the worker with respect to her work activities on August 2, 2014, the symptoms she experienced and the reporting of the accident to her employer.

On September 22, 2014, the WCB advised the worker that no responsibility was being accepted for her claim based on the following findings:

You indicated in your Worker's Incident Report that you experienced sudden pain while standing at work. You were assisting another department and stated that you were only using your hands for this job. Information on file indicated that you been (sic) diagnosed with sciatica and were unsure what your difficulties were attributed to, as you felt pain both at work and at home. You also indicated having episodes of similar pain in the past, most recently a month ago...you initially sought treatment for back pain on April 10, 2014. On May 12, 2014 an MRI was ordered. The results of the MRI reveal a large disc protrusion with significant compression on the right S-1 root...When considering that you sought treatment for back pain since April 10, 2014, you were unsure whether a work related cause was attributed to your difficulties, and the mechanism of injury is not consistent with the diagnosis of a large disc protrusion with significant compression on the right S-1. Given the above information, on a balance or probabilities, we are unable to establish an accident that arose out of and in the course of employment.

On September 29, 2014, the worker appealed the September 22, 2014 decision to Review Office.

On October 10, 2014, the worker's employer submitted documentation to support the September 22, 2014 adjudicative decision.

On November 10, 2014, Review Office confirmed that the worker's claim was not acceptable based on the following factors:

• the worker initially reported to her employer that her back issues were not work related.
• the worker told her supervisor prior to coming to work on August 2, 2014 that she had experienced right leg discomfort.
• on August 2, 2014, the worker reported a one month history of right buttock and right leg pain to the hospital she attended for treatment.
• the worker reported to the emergency room doctor that she had a MRI arranged for September and it was later learned that the MRI had been ordered in May 2014 after the worker reported back pain to her doctor in April 2014.
• when the worker followed up with her doctor on August 5, 2014, no trauma was reported.
• on September 16, 2014, the worker spoke with an adjudicator indicating that she was not sure if her back pain was work related or not.

On December 5, 2014, the worker disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.

Reasons

Applicable Legislation and Policy

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. (emphasis added)

WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

The definition portion of the Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Worker's Position

The worker was self-represented at the hearing. The worker described the work she was performing on the date in question. She was working overtime at a position which was not her regular job. The worker was standing while carrying out her duties on the assembly line when she felt pain in her back and leg. The worker admitted that she had mild back pain since before 2010, but she would just ignore the pain and it would go away. On that day, the pain started during her shift, and was worse when she was going home. She was still able to drive her vehicle, but had pain when she pressed on the brake. When she got home, she went to sleep. Upon waking in the afternoon, when she went to stand up, the pain was intense and radiating from her buttock to her leg. She could not walk so she went to the hospital where she was given a pain reliever. The worker reported for her next shift two days later, but was unable to complete it due to the pain.

Employer's Position

The employer was represented by a health coordinator. The employer confirmed that on August 2, 2014, the worker was working overtime at a position which was not her regular duties. She was required to stand before a weigh scale and as product came down the conveyor, she would make sure it was the appropriate weight. If it was not, she would add or remove product as necessary. The worker stood while she was performing these duties and used her hands for the task. There was no heavy lifting involved. The worker had let her supervisor know that she had a sore leg, and she did advise that it had been bothering her before she came to work. When asked whether it was work-related, the worker said it was not. The worker disclosed that she had had previous issues with back pain, but that it was not as painful as it was at that time.

The employer noted that the diagnosis of sciatica involves a compression of the sciatic nerve. This condition mostly results from trauma, sprain or heavy lifting or is a degenerative concern. It was submitted that none of that occurred at work. The employer noted that after the incident, on September 14, 2014 the worker returned to work on a graduated program and was able to increase up to her regular ten hour shift at regular duties. In November 2014, she went off work again for the same issue and was in receipt of benefits through the employer's disability plan.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. In order for the worker’s appeal to be successful, the panel must find that her right sciatica condition was related to her

employment, either causally, or as an aggravation of a pre-existing medical condition. On a balance of probabilities, we find that the worker suffered an aggravation of a pre-existing condition.

At the hearing, the worker acknowledged that she had experienced back pain since before she started working for the accident employer. It is therefore evident that the performance of her job duties was not the original cause of her low back condition. It was the worker's evidence, however, that the back pain was mild, and that the sciatica she experienced after August 2, 2014, was much more severe than any back pain she had suffered previously.

On reviewing the evidence as a whole, the panel is satisfied on a balance of probabilities that the worker's pre-existing low back condition was aggravated by the work duties she was performing on August 2, 2014. In coming to this conclusion, the panel relied on the following:

• On the day of the accident, the worker was performing scaling duties which were not her regular duties. While the scaling duties were performed mostly with her hands, the duties did involve more side to side reaching and twisting than did her regular duties. The panel accepts that the scaling duties involved a sufficient degree of trunk rotation that an aggravation to a pre-existing disc protrusion could result.
• There was a distinct change in the worker's presentation from the start of her shift to the end. At the start of the shift, although she had pre-existing back pain, the worker was still sufficiently functional that she was able to accept an overtime shift at a position which was not her regular duties. Approximately half way through the shift, the worker's evidence was that she felt the pain come on gradually, and that the level of pain went from mild to severe very quickly.
• Prior to August 2, 2014, the pain never stopped her from going to work and the worker had never called in sick on account of her back condition.
• August 2, 2014 was the first time that the worker experienced the pain going down her leg. Previously the pain was only in her low back and right buttock.

Based on the foregoing, the panel accepts that the worker suffered an aggravation of her pre-existing low back condition while at work on August 2, 2014. The evidence at the hearing was that in September 2014, the worker commenced a graduated return to work and was able to increase up to her full regular duties by October 2014. We find that the temporary aggravation of the pre-existing low back condition had resolved by that time. Unfortunately, the worker suffered a recurrence of disabling back pain in November 2014 after engaging in an extensive cleaning of her house. This would be a separate non-work incident and is not covered under this claim.

We therefore find that the worker's claim is acceptable. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of March, 2015