The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his claim for compensation was not acceptable for an accident occurring onOctober 3, 2014.  A hearing washeld on July 22, 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

The worker filed a claim with the WCB for a low back injury that occurred on October 3, 2014. The worker described the accident as follows:

I was driving...when I felt a jarring motion, possibly from a bump or dip in the road. I felt a sharp pain in my back. Then when I immediately crossed the railway tracks that caused the pain to get really bad. What's when I pulled over and stopped...and reported to my employer.

In the Employer's Report of Injury or Occupational Disease form dated October 8, 2014, it was reported that the worker drove over a pothole and jarred his low back. The worker reported the injury on October 3, 2014 at 3:15 p.m. and no green card was submitted.

On October 10, 2014, a WCB adjudicator documented information he obtained from the worker regarding the mechanism of injury, the onset of his symptoms, prior back problems and his current medical status.

File records showed that the employer provided the WCB with a video surveillance footage along with information regarding the vehicle driven by the worker at the time of the alleged accident.

On November 4, 2014, the worker was advised that the WCB was unable to accept responsibility for his low back difficulties based on the following rationale:

"There was no increase in job duties and no specific event was identified to account for the onset of your symptoms. Although we recognize that the road conditions were not perfect at the time of your reported injury, your employer has satisfied efforts to provide accommodations such as air bag suspension and air ride seats. Therefore, we are unable to establish a relationship between your symptoms and a workplace accident as defined in section 1(1)..."

On November 17, 2014, the worker's union representative requested Review Office to review the recent decision as it was felt that the worker's claim had been denied without just cause. On December 9, 2014, the employer's representative outlined to Review Office that the board's position was well-founded and the decision to deny the claim should remain the same.

On January 15, 2015, Review Office reviewed the file and video surveillance footage and found that an accident as defined in the Act had not been established. From a medical standpoint, Review Office found the worker's back condition from October 3 onwards was unclear and not well defined. Multiple diagnoses were provided which included the presence of a pre-existing degenerative back condition.

Review Office reviewed the video footage and the photographs taken at the location in question and was unable to identify the presence of unusual road conditions, imperfections or hazard that would create a discrete identifiable episode of an unusual jolt or movement. By the worker's own account, he was unable to identify a specific cause, or hazard that caused his back symptoms. Review Office was unable to find that the worker's difficulties arose out of his employment.

After considering the acceptable conditions of the road and railway crossing, the absence of a hazard and the condition of the vehicle and seat suspension, Review Office was unable to identify a "chance event" causing an injury on October 3 which would constitute an accident within the meaning of the Act. On March 12, 2015, a worker advisor, acting on the worker's behalf, appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel met to discuss the case and requested medical information from two treating physicians regarding the worker's back, neck and headache complaints. The panel also requested a copy of the worker's prior WCB claims for injuries reported in 2013 and 2014. On August 24, 2015, the interested parties were provided with the additional information and were asked to provide comment. On September 9, 2015, the panel met further to discuss the case and rendered its decision.

Reasons

Applicable Legislation

In considering appeals, 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 whether the worker sustained personal injury by accident arising out of and in the course of his employment.

Worker's Position

The worker was represented by a worker advisor who relied on a written submission sent to the Appeal Commission on July 14, 2015. He questioned the worker at length as to the events of October 3, 2014, and spoke to the prior WCB adjudications on the file.

The representative's position was that the claim is acceptable; the worker was in the course of his employment when he experienced an acute low back injury, and that there was a chance event, being a jarring motion on an imperfect road. There was also a timely disclosure of the injury and its cause when he was taken to a hospital emergency department by ambulance during his work shift.

The worker advisor noted that there were multiple photos and video evidence from surveillance cameras that show the unevenness of the road and railway crossing at the time that the worker first experienced pain. He also noted that the photos showed puddles as well as a barricade and pylon that could have been hiding potholes. The worker advisor stated that the severity of the road hazards did not need to equate to the severity of the worker's injury; there was enough imperfection in the road conditions, even with a good air ride seat and suspension, to have a chance event, as required under the Act.

The worker advisor indicated that if there was not enough evidence to establish a chance event, then the panel should use the presumption clause in subsection 4(5) of the Act to find that the claim is acceptable. The injury clearly took place in the course of the worker's employment, and in the absence of evidence confirming that it arose out of the employment, it should be presumed to have arisen out of the employment.

The worker's evidence is that he has been a bus driver for six years and generally works split shifts, with a 1-4 hour break in between. At the time of the October 3 incident, he had been on the same schedule for one month. He was working Mondays to Fridays, driving a morning route ending at a bus depot. He then had a break, following which he would return to the depot, and leave to do a school charter and then another route. This incident took place as he was driving an empty bus at the start of the school charter. He couldn't recall what he did specifically on his break that day but it was likely that he was working out at a fitness facility. He has a regular routine of swimming, aerobic machines and light weights.

The worker said that he had no issues with his back earlier that day or prior to October 3. While driving his bus on a regional street, he felt a dip in the road while passing C street which jarred his back. He was surprised by the dip and had not had the chance to prepare for it or to avoid it. Three side streets later, at L street, he started a call to report a back problem. He continued over a railway crossing and soon after, pulled over to complete the call and arrange for a relief driver. He continued to drive for another 4-5 minutes before he had to stop the bus because of the speed with which his mid and low back tightened up. He had never felt anything like that before.

The worker advised that the only back problem that he had was the one that was identified on x-ray at the hospital that he attended. On questioning from the panel, he indicated that he has a condition in his thoracic spine, which he found out about 5-6 years ago. He advised he was born with the condition and that he has no symptoms from it other than related to his appearance.

The panel asked the worker about three prior WCB claims filed by the worker, two in 2013 and one in 2014, that indicated injuries to the back, neck and headaches. The worker indicated that they were all caused by rough roads, but none of the claims were accepted by the WCB. The worker advised that he has been seeing a neurologist for his headaches for a number of years which he felt were related to road conditions. He has undergone a number of diagnostic tests, but was unable to provide the panel with a specific diagnosis for his headaches.

In response to the additional information the panel received regarding the worker's other workplace injury claims, the worker's advocate provided a written submission. He submitted that there is sufficient evidence to accept the claim. He wrote:

"While no road anomaly of significance has been identified, we submit no such thing is required to accept that this worker sustained an injury arising out of and in the course of his employment on October 3, 2014."

He also submitted that there is insufficient evidence to conclude that the onset of the worker's back pain was caused by his underlying or pre-existing condition.

Employer's Position

The employer was represented by its Compensation Coordinator as well as the worker's supervisor who was available as a technical resource. The supervisor had also taken photos of the street in the area where the worker had reported he had injured himself.

The coordinator indicated that it was standard practice to send a supervisor to inspect the location in question and to review video from the bus to determine the road conditions. His position is that the information collected, which was provided to the WCB, did not show road imperfections that would cause a work injury. He notes that the video of the interior of the bus shows the worker swaying slightly on occasion in a manner not much different than someone driving a car. As to the worker advisor's position that the puddles in the photos and video might have been concealing underlying potholes, he indicated that the worker inspected the streets on October 23 when the roads were dry and provided photos which are on file. Those photos do not disclose the presence of any potholes.

The coordinator also noted that the location of the injury had shifted. When the worker first contacted WCB, he reported that the injury happened while driving through L street. At the hearing, the worker advised it had happened around C street, while going over a dip in the road. He notes that the worker had been on that route for a month, would have been familiar with the road conditions and it did not make sense that the worker was surprised.

The coordinator noted that he drives over that route and the supervisor takes the bus over that route to and from work every day and that neither are aware of any potholes or dips of significance in that area. He also noted that the suspension, air seat and bus were all in good condition, which the worker had agreed with. In summary, his position was that while the worker suffered low back pain at work, the evidence regarding road conditions, the mechanical condition of the bus and the video evidence do not satisfy the Act's requirements for an accident. His back complaints did not arise out of his work duties.

The employer provided a further submission in response to the additional information which was received by the panel. He acknowledged that the worker experienced some back discomfort on October 3, 2014 but that the preponderance of evidence fails to establish the necessary nexus between the discomfort and a workplace incident that would satisfy the pre-requisites of subsection 1(1) of the Act.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the worker's claim to be accepted the panel must find, on a balance of probabilities, that "personal injury by accident arising out of and in the course of employment is caused to the worker..."

After considering all the evidence the panel was not able to make this finding. While the worker was in the course of his employment at the time that he contacted the employer and reported back pain, the preponderance of evidence does not support a finding that the worker's back pain arose out of his employment.

The panel is not able to identify a "chance event" which resulted in an injury. In arriving at this conclusion, the panel has given careful consideration to the evidence before it, including the video evidence of the road and the interior of the bus recorded while the driver drove the route. The worker identified different locations on the road which may have caused the lower back pain. The panel reviewed the video evidence, both the road footage and interior footage, and was not able to identify any event or hazard causing an injury in any of the locations referenced by the worker. The panel could not see any movement in the bus, supportive of hitting a dip or pothole or other obstruction. The interior video which captured the worker's right side, did not show any jarring action or other movement of the worker's body which was supportive of a finding that the bus had hit a dip or other obstruction or that the worker had been injured.

The panel also noted that the worker had driven this route many times without incident, and that the bus seat and suspension of the bus were in good shape.

While the worker may have experienced some back pain while driving the bus, the panel finds, on a balance of probabilities, that the worker did not sustain an accident resulting in an injury to his low back.

There was some discussion regarding the worker's pre-existing condition. The panel does not find that the evidence supports involvement of his pre-existing condition. The worker's complaints were related to his lower back and not the thoracic spine which was affected by the pre-existing condition.

The worker'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 1st day of October, 2015