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 July 2, 2015 toconsider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 9, 2014, the worker filed a claim with the WCB for severe low back pain that she attributed to "a combination of sitting in the seat and bouncing up and down over the rough roads." The worker indicated that on August 29, 2014, she finished a double shift and that was when she experienced the severe back pain. The worker reported the accident to her employer on September 9, 2014.

Information obtained from the worker's supervisor was that the worker filed a green card for a workplace incident occurring on August 29, 2014. The worker indicated that her low back started to become sore and very painful by the end of her shift. She went to a hospital for treatment and was told to take 3 days off work. As her back pain continued, the worker went to see her own doctor. The worker asked whether her back pain could be due to driving and the doctor said yes.

On September 18, 2014, the worker spoke with a WCB adjudicator regarding the onset of her low back pain which commenced on August 29, 2014. The worker felt that her back pain was related to the following work factors:

• bad road conditions
• driving an older vehicle
• having been driving for a long time
• the extra hours she worked on August 29, 2014

In a decision dated September 24, 2014, the worker was advised that the WCB was able to confirm that she experienced an onset of symptoms "in the course of" her employment, however the evidence did not establish that the onset of her back difficulties "arose out of" her employment. The decision was based on hospital information which documented that the worker had a history of low back pain over an approximate period of two months and that the mechanism of injury described by the worker did not confirm any specific injury or incident causing a twisting motion or overextending of the back which was typically associated with a sprain/strain type injury.

On November 5, 2014, a worker advisor submitted new information to the WCB to show that the vehicle driven by the worker on August 29 did not have retarder brakes and that this accounted for the worker's right-sided injuries. The worker advisor advanced the position that there did not have to be a specific incident to meet the definition of an accident and that the new information supported that the worker's injuries arose out of her employment. The worker advisor referred to the following medical information to support a relationship:

• the first doctor's report confirmed the pain in the low back being right sided.
• the hospital report confirmed a report of "right flank pain" as a result of driving.
• the diagnosis by the treating physiotherapist was not only a lumbar strain but also a hamstring overuse injury related to driving with no retarder brakes.

On November 27, 2014, a WCB medical advisor reviewed the file information and found no incident that would serve as a mechanism of injury. The assertion that the injury occurred through the use of the vehicle seat and driving on bad roads was speculative rather than probable. The medical advisor opined that the worker's presentation at the hospital emergency department was overwhelmingly medical/urinary rather than musculoskeletal in etiology. The medical advisor referred to the September 15, 2014 physiotherapy report which outlined diagnoses of lumbar strain and hamstring overuse. The medical advisor stated that these findings and diagnoses are substantially different from those reported in the emergency department visit on August 31, 2014. Given the time that elapsed after the August 31, 2014 emergency department visit, these symptoms/diagnoses, if present, appeared well after the emergency department visit. This did not substantiate a probable relationship to a workplace exposure. The medical advisor stated that the file contained a later description of the lack of retarder brakes as being related to the workplace injury. He felt there was no probable relationship between this activity and the workplace injury.

On November 27, 2014, the WCB advised the worker that no change could be made to the previous decision based on the WCB medical advisor's comments that the worker's presentation at the hospital visit was more likely not related to musculoskeletal pain and the finding that there was no relationship between the braking activity to the injury. On December 16, 2014, the worker advisor asked Review Office to reconsider the WCB decisions dated September 24 and November 27, 2014.

On February 12, 2015, Review Office considered a submission from the employer's representative dated January 15, 2015 and a further submission from the worker advisor dated January 27, 2015. Review Office determined that the worker's claim was not acceptable as it was unable to find evidence that the worker's injury "arose out of" her employment.

Review Office noted that the tests performed at the hospital emergency on August 31, 2014 was not initially centered towards a back injury. The worker reported a two day history of right flank pain with frequency in urination, fever and nausea. These symptoms were not suggestive of a low back strain. Review Office noted that the worker delayed in reporting the injury to her employer until September 9, well after first seeking medical attention on August 31, 2014. The worker could not recall any specific incident or injury which caused her right flank pain. Review Office accepted the comments made by the WCB medical advisor dated November 27, 2014 and found no evidence to support the worker's symptoms arose from her employment or a workplace injury. On February 17, 2015, the worker advisor 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 provisions of the Workers Compensation Act (the "Act"), regulations, and policies passed by the WCB Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The Worker's Position:

The worker was assisted in her appeal by a worker advisor, who made a submission on her behalf. She attributes her August 29, 2014 injury, a lower back strain/sprain (the diagnosis provided by her physiotherapist on September 15, 2014) to the lack of retarder brakes on the vehicles driven by her on a particularly busy day at work and from driving on rough roads.

Through questioning by her worker advisor and the panel, the worker provided more information on the nature of her job duties, what happened on her last shifts at work, and how her medical condition evolved over the subsequent days and weeks. The worker advised that she first felt pain in her lower back and on the front (top) of her thigh, in the quadriceps area. She took a lot of regular Tylenol after her August 29 shift. Two days later, she went to a hospital emergency department. She indicated that her back was not examined by anyone while she was there, and that she could not understand how or why the symptoms reported on the hospital forms (such as sharp and colicky pain, nausea, and fevers) were reported there. She indicated that she did not have any renal colic issues prior to that day and that later testing for that condition were negative.

The worker advised that she was bedridden for the next week because of her back issues, and that during that time, the pain in the top of the leg moved from the front of her leg to the hamstring, and that she had developed a limp by the time she had seen her attending physician on September 9, which was the first available date for an appointment. The worker acknowledged that at that point, she asked the doctor whether it was possible that her condition arose out of her job duties, and that his positive reply led her to file a WCB claim.

The worker was not able at that time to identify a specific event or cause, outside of horrible roads, the extra hours worked and the older vehicles she was driving. It was near the end of October, almost two months later, that she identified the lack of retarder brakes on the vehicles that she used on August 29 as the cause of her low back and leg issues. She indicated that the force involved in using non-retarder brakes was significantly greater than what was needed on a vehicle that had retarder brakes. This was supported by a letter from the union president who was also a nationally certified mechanic.

The Employer's Position:

The employer was represented by its Compensation Coordinator who provided a written submission to the panel and added other comments during the hearing. He was assisted by a Supervisor of Operations, who was the worker's immediate supervisor. He provided technical information in response to questions from the panel.

The employer reviewed the adjudication history on the worker's WCB file and placed particular emphasis on the analysis provided on November 27, 2014 by the WCB medical advisor which noted the worker's initial inability to identify an incident that would serve as a mechanism of injury. She noted that the hospital was unable to come up with a diagnosis more specific than "flank pain radiating to the groin NYD" [not yet diagnosed], whose causes could be multi-factorial. She also noted that the symptoms and findings of the worker's physician and physiotherapist were not present at the time of the worker's emergency room visit, and that there were differences regarding the reported onset of those symptoms. In particular, the worker's entrance complaints at the emergency department indicated "lower back pain x 2/12

[two months] and range of motion full." This is not consistent with an acute event two days earlier or the use of retarder brakes or horrible roads or the need for the worker to ask her doctor what might have caused her back difficulties.

As for the retarder brakes, the employer noted that on September 18, 2014, the worker spoke with the adjudicator and listed a number of factors which she felt were the possible causes of her back difficulties, but did not include retarder brakes. In contrast to the worker's position and that of the union president who provided a letter of support, the Coordinator indicated he had spoken to the Superintendent of Maintenance whose opinion was that the absence of retarder brakes would have no injurious effect. The Coordinator offered to arrange a site visit for the panel to try out buses with and without the retarder brakes, to assist us in our deliberation process.

Analysis:

The worker is appealing the WCB's decision that she does not have an acceptable claim for a work injury. For the worker to succeed in her appeal, the panel would have to find, on a balance of probabilities, that she did indeed suffer a work-related injury. After careful consideration of the evidence on file and at the hearing as well as the submissions made, the panel was unable to make this finding.

The panel notes that the worker first reported that she suffered pain in her low back at the completion of a double shift on August 29, 2014 which were actually additional shifts that she had picked up on top of her regular shifts the previous day, but did not formally file a WCB claim until September 9, 2014. In considering this issue, the panel carefully reviewed what medical conditions were present at various points in the claim, and whether, on a balance of probabilities, they could be causally related to the worker's job duties on or before August 29, 2014.

The panel notes that the worker was off work for almost two weeks before deciding to file a WCB claim, and this was after she spoke with her family physician on September 9, 2014 and asked if her back issues could be related to her work duties. Her physician notes that the worker was presenting with back spasms and had been off work since August 29, 2014. About a week later, on September 15, 2014, the worker saw a physiotherapist who provided a diagnosis of a lumbar strain and hamstring overuse injury. It is these medical diagnoses that the worker asserts were caused by various hazards of her employment, being rough roads, her general driving duties, and the heavy braking required in vehicles that did not have retarder brakes.

The panel notes, however, that prior to that September 9 visit, the worker had attended a hospital emergency department on August 31, 2014, two days after she suffered an increase of symptoms that she attributes to her job duties on August 29, 2014. In the panel's view, everything that happened at the hospital -- the worker's presenting history and her subjective complaints, as well

as the clinical findings at that time -- are significant factors in determining whether her later symptoms and diagnoses (of September 9 and 15) can be related to her work duties of August 29, 2014.

In other words, the question for the panel is whether the muscle spasms identified on September 9 or the hamstring overuse issues identified on September 15 can be tied back to her job duties in late August 2014? The panel has carefully reviewed the hospital records of the worker's August 31, 2014 visit and notes the following:

· At the hospital, within two days of the worker being off work, the worker did not provide a history relating her medical issues to an acute event or a particular action while on the job. Rather, the history indicates complaints of "...Right flank pain P.S. 10/10, onset couple days ago thought it was just a back pain because of the nature of her job -- driving [vehicle]. Today felt sharp non-radiating right flank pain, associated with nausea, no vomiting." Other notations indicate "right flank pain that started 2/7 ago with frequency in urination, nausea and fever," pain bilaterally to both extremities, "Musculoskeletal: Lower back pain x 2/12, Range of Motion: full."

· Based on those presenting complaints, the worker was placed in the Complaint Category of "genitourinary" with a chief complaint of "Flank Pain." The differential diagnosis at that time was renal colic. While eventually ruled out by diagnostic testing, the panel notes that process undertaken by health care professionals in emergency departments (or indeed in any history taking situation) involves the asking of open-ended questions of the patient. While the worker does not specifically recall using the words described on the hospital records, the panel places considerable weight on the symptoms recorded in the hospital's records. In the panel's view, the symptoms of sharp and colicky pain and fevers are not typical of a musculoskeletal injury but rather a different type of medical condition.

· The panel notes that what is noticeably absent from the hospital records are any specific complaints of a musculoskeletal nature. While the worker's evidence at the hearing (10 months after the date of injury) was that she was immediately very sore on the front of her right thigh (the top of her quadricep) and that this had migrated to the hamstring area at the back, the worker did not report any such muscular symptoms or discomfort or loss of function at the time she entered the hospital two days after the incident. In the panel's view, a muscular problem would have become evident if not immediately, then within the two days following her last work shift.

· At the hearing, the worker advised the panel that she was not examined for a musculoskeletal condition at the hospital because of their incorrect first diagnosis. However, we note that the hospital records do in fact note a finding of full range of motion in the low back and the specific absence of any reference to front of thigh

· soreness or hamstring issues. As well, the hospital's findings of full range of motion and a two month history of low back pain is very different than the September 9, 2014 findings by the worker's attending physician of limited range of motion with an acute onset with a history of onset on August 29.

Subsequent to the hospital visit, the panel notes that the worker's evidence was that she was "totally bedridden for a week," developed a limp during that period of time and her front of thigh pain migrated to the hamstring. She eventually saw her own physician on September 9, 2014. He reported muscle spasms of the low back, the first time this finding is recorded. This evolved further to a September 15, 2014 diagnosis by the worker's physiotherapist of a hamstring overuse injury. The worker was then off work until mid-January 2015 for this condition. Again, the panel has considerable difficulty relating the change in location of symptoms, the new symptoms/diagnoses and their severity and duration to the worker's job duties on August 29, given the complete absence of those presenting symptoms within the days following the worker's last work shifts.

On balance, the panel has considerable difficulty in relating the worker's medical diagnoses of back strain or a hamstring overuse, or indeed any other medical diagnosis to her job duties on August 29, 2014. The panel notes that a WCB medical advisor had undertaken a similar analysis in her memo of November 7, 2014 and we concur with and adopt her analysis in reaching our conclusion.

The panel has also reviewed the worker's job duties and the potential occupational hazards that were identified by the worker and her advocate as being causative of her low back/leg difficulties:

· Seat: The worker's evidence was that she had good seats in the vehicles she drove. They were air ride seats, fully adjustable, and she was able to adjust the seat to meet her ergonomic needs, including the correct distance to her gas and brake pedals. The employer confirmed that there were no maintenance records suggesting defects for the vehicles used by the worker in the time period before or after the worker's last shift of August 29, 2014.

· Horrible roads: While the worker described the roads as generally horrible, the worker did not identify (either at the hearing or at any earlier point in time) any specific incidents or events which exceeded the capacity of her air ride seat or vehicle suspension system to handle the roads.

· Lack of retarder brakes on the last two vehicles driven by the worker prior to her absenting herself from work: The panel notes that there was a significant variance in the evidence presented at the hearing as to how much force it takes to apply braking power on vehicles with and without retarder breaks. The amount required ranged from "lots more" to "insignificant differences" to the worker at one point indicating that at times she would have to almost stand up to get enough force to get the braking power that she needed. As well, there were significant differences between the worker and the worker's Supervisor of Operations (who has trained drivers) as to the technology behind retarder brakes and what it meant in terms of the necessary foot pressure to engage the brakes. In response to a question from the panel, the Supervisor indicated that the pressure required for braking was less than that needed for standard brakes on a car, although the worker did not concur in the case of the non-retarder brakes. The panel accepts the Supervisor's evidence, based on his expertise in training drivers, that for air brakes it is not how hard one pushes (like a car) but how far one pushes that activates the air brake systems, and that the pressure stays the same. The panel also accepts the Supervisor's evidence that it is in the last stages of braking that the retarder brakes are activated. In the panel's view, this amount of pressure would not be sufficient to cause the types and the duration of the injuries that (back strain, pain to the top of the thigh, hamstring overuse injury) that were variously reported and diagnosed for the worker.

Based on this analysis, the panel finds on a balance of probabilities that the worker did not suffer a work-related injury that meets the requirements of subsections 1(1) and 4(1) of the Act. Therefore, the worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of July, 2015