The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her current back difficulties were not related to an accident arising outof and in the course of her employment.  Ahearing was held on July 15, 2015 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 27, 2014, the worker filed a claim with the WCB for a low back injury that occurred at work on November 19, 2014. The worker stated: "Did not feel anything the first day. I was repositioning a heavy patient. I didn't notice anything at the time but when I woke in the morning (November 20, 2014) I felt pain in my lower back and numbness towards my left leg."

The Employer's Accident Report noted that the worker was repositioning a heavy patient on November 19, 2014 with the help of a student nurse and she felt pain in her lower back the following day. The employer noted that the worker remained at work on full duties and she did not miss any time away from work.

In a memo dated December 10, 2014, a WCB adjudicator documented information she obtained from the worker regarding the job duties she performed on November 19, 2014 which led to her back difficulties on November 20, 2014. The worker reported that she attended a physiotherapist for treatment on November 20, 2014 and that prior to the accident, she had been attending physiotherapy and massage treatments on a regular basis since January of 2014.

On December 10, 2014, the worker was advised that her claim for compensation had been denied as a relationship could not be established between the development of her low back symptoms which started when she awoke on November 20, 2014 to repositioning a heavy patient on November 19, 2014.

On December 12, 2014, the worker appealed the above decision to Review Office. On December 16, 2014, Review Office advised the worker that the claim was still under review by Compensation Services and that a further written decision would be forthcoming.

On December 17, 2014, the WCB adjudicator spoke with the treating physiotherapist and documented the following:

• the worker was seen on November 20, 2014 stating that she hurt her back from boosting a patient. She had numbness down her left leg. No date was provided.
• the worker had been receiving treatment since March 25, 2014. The diagnosis was an extruded disc (worse than herniation) at L4 and L5 and nerve root compression, drop foot due to disc between L4 and L5 being herniated. The worker was usually seen twice per week.
• the worker was seen on September 4, 2014 for numbness and throbbing in her back. The worker was not sure what bought it on.
• on September 18, 2014, the worker was lifting a box at home and experienced "plus plus" back pain.
• the last physiotherapy appointment prior to November 20, 2014 was on September 18, 2014.

On December 22, 2014, the worker was advised that no change would be made to the previous decision as the WCB was unable to establish a relationship between the workplace injury occurring on November 19, 2014 and her difficulties that began on November 20, 2014. The adjudicator stated: "Given your history of prior back difficulties it is not probable that the onset of your symptoms would be delayed when an acute incident occurs."

On December 24, 2014, the worker appealed the decision to Review Office. On February 2, 2015, the employer's advocate submitted to Review Office that there was no basis to overturn the decision that the worker's claim was not acceptable.

On February 20, 2015, Review Office confirmed that the claim for compensation was not acceptable. Review Office referred to specific file evidence to support its finding that the worker's low back problems occurring on November 20, 2014 did not arise from the activity of repositioning a heavy patient on November 19, 2014. On July 7, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on July 15, 2015.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the worker's treating physician and physiotherapist. The requested information was later received and was provided to the interested parties for comment. On September 17, 2015, the panel met further to discuss the case and rendered a decision on the issue under appeal.

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.

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.

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether, on a balance of probabilities, the worker’s low back condition arose out of and in the course of her employment.

Worker's Position

The worker was self-represented. She explained how she injured her low back at work. She said that:

"On November 19, 2014, I repositioned a heavy bed-weight patient before lunchtime. I was okay until I woke up the following day and felt pain in my lower back and numbness toward my left leg...

Being a nurse, there’s no absolute in our practice, but this pain is subjective, dependent on each individual person, and cannot be derived or compared from what the common and usual reaction are from most people. Again, not all pain is experienced right after an untoward event."

The worker advised that she had an earlier incident where she suddenly felt significant pain without a precipitating event, but that the symptoms quickly resolved unlike the work incident. She said that at another time, she also lifted a box at home, approximately 50 kilograms, but did not experience pain until the following day, very similar to the incident at work.

The worker expressed concern regarding "the lack of equipment and education on our surgical unit to properly take care of the patients, and more so the staff assisting the patients, thus hurting ourselves on the process of taking care of our patients who are post-surgery, sedated and weak."

The worker noted that the WCB did not obtain reports from her treating sports medicine physician and the consulting neurosurgeon.

The worker answered questions from the panel.

In answer to a question, the worker advised that in January 2015 the pain was "coming and going," but came back in February which caused her to visit a hospital where she was given T3s and sent home. She said she was off work for 4 days and went to see a sports medicine physician. The physician ordered an MRI. She said the pain was in her back and shooting down her legs. She was told the problem was related to her L4/L5 discs. She advised that the physician told her it would not be a permanent change to her back. She was also seen by a neurosurgeon who did not feel surgery was necessary.

She described her duties on the ward. With respect to the incident that she believes caused her injury, she said the patient was weak and weighed between 200 and 250 pounds. Because the patient was weak, he could not assist with the repositioning. When asked why she feels she was injured moving this patient, she responded that this was the only patient that she moved that day. She confirmed that she did not feel any symptoms at the time or later that day. She said that she slept well and did not feel pain until she moved to get up the following morning.

Employer's Position

The employer was represented by an employer advocate and its WCB Co-ordinator. The employer representative advised that the employer agrees with the Review Office decision and finds there is no convincing evidence of a cause and effect relationship between a workplace event and her low back condition. She advised that the employer believes the worker's "...difficulties are due to degenerative disc problems, which do cause flare-ups and pain with or without an inciting event, as is the nature of this condition."

The employer representative noted the worker has not missed time from work since the alleged accident and continues to work at her regular duties. She also noted that the information on file indicates that after moving the patient, the worker finished the rest of her shift without any difficulty, pain, symptoms or complaints, and stated that she did not feel anything the first day and had no pain until she woke in the morning. She said that the employer does not see a connection between her working, repositioning the patient, with her flare-up of pain the next morning.

Upon receipt of the additional information which the panel obtained, the employer representative commented that:

"The submitted medical information reveals that [worker] had a significant history of pre-existing low back difficulties in early 2014. The [carrier] application completed on May 11, 2014 indicated a "prior back pain history." She had a number of flare-ups in 2014 both with and without an inciting event and remained symptomatic prior to her claimed workplace injury on November 19, 2014."

Analysis

As noted in the background, to assist with the adjudication of this appeal, the panel obtained additional information including information from the treating physiotherapist, treating physician, and consulting neurosurgeon. The panel also received copies of a diagnostic imaging report and MRI report.

The worker is appealing the WCB decision that her claim is not acceptable. For the worker's appeal to be approved the panel must find, on a balance of probabilities, that the worker injured her low back while performing her workplace duties.

The panel has considered all the information, including the information on the file, the evidence provided by the worker at the hearing and the additional information obtained after the hearing. The panel finds, on a balance of probabilities, that the worker's injury did not arise out of or in the course of her employment.

The worker attributes the cause of her injury to her repositioning a heavy patient. She identifies this as the cause of the injury because "He was the only one that I moved that day." In her opinion this has to be what caused her injury.

In reaching the decision that the claim is not acceptable, the panel attaches significant weight to the worker's evidence that:

· she did not have any symptoms when she repositioned the worker

· she continued to work the remainder of the day without symptoms

· she did not have symptoms at home that evening

· she slept well and had no symptoms until she woke up in the morning

On a balance of probabilities, the evidence does not establish that the injury arose out of and in the course of her employment.

The panel notes that the worker has a long history of significant low back pain before the work incident. The information shows that the worker had prior incidents, including an incident of spontaneous onset of pain without any identifiable cause. This suggests to the panel that the worker is subject to intermittent pain which waxes and wanes.

Finally, the panel notes the MRI report which was received after the hearing indicates that the worker has mild degeneration and a "large L5-S1 left paracentral disc extrusion causing posterior displacement and impingement of the traversing left S1 nerve root and moderate to severe left foraminal encroachment which could be affecting the exciting left nerve root."

The panel believes that this type of condition makes the worker susceptible to spontaneous onset of pain.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 28th day of September, 2015