The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for a back injury occurring on August 22, 2014. A hearing was held on September 23, 2015 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred at work on August 22, 2014. The worker described the accident as follows:

I was putting [product] into the shopping cart... I bent down over the edge of the cart to put it in there, lifted up my back foot, and as I stood back up I felt a pinch/twinge sharp pain in my lower back. Then throughout the rest of the day it got worse, stiff and sore so I went to the manager and filled out the incident report and was sent to the doctors.

The worker further advised that he had a previous work injury in February 2014 and that he was never 100% from that injury. He stated "So this is reaggravation of that injury."

In a letter dated August 26, 2014, the employer's representative requested that the WCB review the mechanism of injury described by the worker to determine whether it matched the nature and level of his disability. The employer was of the view that the worker's prior WCB claim may be a contributing factor to his current injury.

On August 28, 2014, the worker confirmed the mechanism of injury to a WCB adjudicator as described in his initial report to the WCB. The worker indicated that he saw a doctor for treatment on August 23, 2014 and he was advised to take time off work as he had a previous injury from February 2014. The worker indicated that he had never been 100% and was in constant pain.

In another telephone conversation with the WCB, the worker advised that he was cleared to return to work in March 2014 from his February 2014 back injury. The worker said he was still having difficulties and did not notify the WCB of this as he was being accommodated by his employer and he thought his claim had been closed. The worker advised that he had been attending a chiropractor since March 2014 in relation to a motor vehicle accident and that he had a claim with MPI for a whiplash injury.

Initial medical reports showed that the worker was seen by a physician on August 24, 2014 with complaints of a sore back after lifting an object at work. There was no injury/trauma and there was a previous history of a back strain. The worker was assessed with back pain.

Via Claim Notes dated September 4, 2014, the WCB adjudicator documented that based on review of the worker's prior back claim, the worker returned to full duties on March 12, 2014. Two days after returning to work, the worker was involved in a car accident.

On September 5, 2014, the worker saw a physiotherapist for an initial assessment. The description of accident described by the worker was "Bent forward to place item in shopping cart." The diagnosis was a low back strain.

In a decision dated September 12, 2014, the employer was advised that the WCB was accepting the worker's claim and that wage loss benefits would be paid. The adjudicator found no evidence to support that the worker's current difficulties were related to the workplace injury of February 22, 2014. She found that the diagnosis of the worker's back condition was consistent with the reported mechanism of injury. It was felt that the worker was capable of performing his duties prior to August 22, 2014 and the medical evidence supported limited functioning following the workplace injury of August 22, 2014. On February 12, 2015, the employer appealed the claim's acceptance to Review Office.

On March 24, 2015, Review Office denied the employer's appeal and found that the worker did sustain personal injury by an accident arising out of and in the course of employment and that his claim for compensation was acceptable. Review Office referred to file evidence to support its position that the worker's low back pain experienced on August 22, 2014 was not related to the February 22, 2014 compensable injury or to the March 14, 2014 motor vehicle accident. On April 17, 2015, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

The employer is appealing the WCB decision to accept the worker's claim. The key issue to be determined is whether, on a balance of probabilities, the worker sustained personal injury by an accident arising out of and in the course of his employment on August 22, 2014.

Employer's Position

The employer was represented by an advocate who participated in the hearing by conference call.

With respect to the incident, the employer representative noted that the incident involved placing a jar in a grocery cart. She noted that the item that he put in the cart was only two kilograms, so 4.4 pounds, and that the worker said that he did not actually have the item in his hands when he felt the onset of pain; rather, he had put it in the cart and he was straightening up from being slightly bent over to do that.

The representative noted the worker was only bearing the force of his own body during that activity and it would seem like there was not any awkward posture, nor any range of motion that would be considered out of the normal range for the lumbar spine; thus, no external load to his body and no awkward range of motion.

She said that the employer is at a loss as to how it could physiologically be explained that one could sustain a disabling lumbar strain from performing this normal body motion. She said that the body tissues are designed to move in such an activity and not be injured.

She submitted that:

"... the only plausible explanation is that his prior injuries from the MVA were not fully resolved, and the activity on August 22nd had no causative significance to his sudden onset of back pain and subsequent disablement from work...that it is logical that it was the internal workings of his body that were responsible for any symptoms on August 22nd, and not due to any hazard of employment activity...that this is supported by the February 23rd chart note which notes his prior history of back strain."

The employer representative also submitted that putting down the item and then straightening back up most definitely was an intentional act of the worker and, thus, would not meet their definition of an accident.

She also said that the incident does not satisfy section 4(1) of the Act. She also noted that WCB policy 44.10.20.10 states that the board will not provide benefits for disablement resulting solely from the effects of the worker’s pre-existing condition, as a pre-existing condition is not considered a personal injury by accident arising out of and in the course of employment.

She submitted:

"... that the evidence is certainly there to conclude that there was no work hazard on August 22, 2014 that would plausibly, from a physiological standpoint, cause a disabling injury...this claim does not meet the board’s criteria for acceptance, and we respectfully ask that the panel deny the claim."

The employer representative asked that the panel consider obtaining a medical opinion on the basis that "Lifting a four-pound item and straightening up from putting it back down is, in our opinion, not capable of causing injury."

Worker's Position

The worker did not attend the hearing.

Analysis

The issue before the panel is whether the worker's claim is acceptable. The employer is appealing the acceptance of the worker's claim. For the employer's appeal to be approved, the panel must find that the worker did not sustain "personal injury by accident arising out of and in the course of employment..." Upon consideration of all the evidence, the panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker was injured while performing his employment duties on August 22, 2014. The panel is satisfied that the requirements of the Act have been met.

In reaching this decision, the panel notes that the worker advised he "was placing [product] into a cart and felt lower back pain." This activity occurred while in the course of his employment. On August 24, 2014, the worker sought medical attention. His physician's report indicates that the worker complained of a sore back after lifting an object at work. Clinical findings included "ROM limited with flexion and extension due to pain, SLR (straight leg raising) positive, tenderness of muscle spasm."

The panel notes that the worker had a workplace injury on February 22, 2014 resulting in a back injury, but was able to return to work on March 12, 2014. A March 11, 2014 clinical note from a physician indicates that "back pain completely resolved." He had not reported ongoing problems to the WCB and did not seek further medical treatment for this injury.

The employer representative noted that the worker was involved in a motor vehicle accident in March 2014 and suggested that the pain suffered by the worker was due to a pre-existing condition, related to the March 2014 auto accident. The panel finds that the evidence does not support this suggestion.

The panel considered the medical reports provided by the chiropractor in relation to the motor vehicle accident. The primary injury from this accident appears to have been complaints of cervical and thoracic spine pain although later there was a complaint of lumbar spine pain. The medical notes indicate that the worker had improved by July 30, 2014 with clinical findings of full range of motion of the cervical spine and lumbar spine. The treating chiropractor commented that at the last treatment the prognosis for the worker was good, that he subjectively reported feeling better and objectively was 80-90% improved.

The employer's representative expressed concern that the mechanism of injury was minor and would not be expected to cause the significant injury reported by the worker. The panel is satisfied that the mechanism of injury, although minor, resulted in an injury. The panel also notes that this appeal is limited to determining whether the worker's claim for injury is acceptable. The panel is not addressing the extent of injury or any time loss resulting from the injury.

The panel declines the employer representative's request that the panel obtain a medical opinion on the mechanism of injury. The panel finds that the evidence, on a balance of probabilities, clearly establishes that an injury resulted from the workplace accident.

The employer's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of October, 2015