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 did not meet the definition of anaccident.  A hearing was held on September30, 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

In October 2013, the worker filed a claim with the WCB for low back, right hip and leg pain that he attributed to his employment activities as a healthcare aide with Employer 1. The worker reported that his job entailed holding legs for dressing and turning patients. He said: "Some people are heavy. Recently more heavy patients." The worker reported that he first noticed symptoms at the end of August 2013. The worker identified two co-workers and a manager who saw him limping at work. The worker advised that he had other jobs as a healthcare aide. He worked 31 hours biweekly at one job and .2 EFT at another.

The employer's Occupational Health Nurse stated the following in the Employer's Accident Report:

Worker did not provide an incident report to the employer. Writer sought him out during his work shift to determine what claim was about. He stated he 'did not have any incident.' He described lower back pain which is worse since August and attributes it to the "heavy workload." He states he has attended a few different physio appointments and one made it worse. He was told from someone at (physiotherapy clinic) to put in a claim to WCB. He said he has seen 2 doctors and is receiving medication and has missed some days from work. He provides a previous WCB injury from a previous homecare job and states it is the same but "WCB told him he has recuperated." He provides a diagnosis of "sciatica" told by his doctor which he states he has had before.

The worker has a prior claim with the WCB for a November 2010 back injury while working for Employer 2. The claim was accepted based on the diagnosis of a lumbar disc herniation at the L5 level. A memo dated October 11, 2013, from the 2010 claim stated:

He said he's had gradual increase in low back pain over past few weeks.

Saw his Dr. Oct. 1/13 who advised it sounds like recurrence of pain related to this old injury. Confirmed he has not attended for medical tx since 2011. Was not having ongoing symptoms with low back until recently.....

In a decision dated November 21, 2013, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to establish a relationship between the development of his reported lower back, right hip and leg difficulties and an accident at work or to the performance of his job duties.

In a memo dated November 22, 2013 on the worker's 2010 claim, a WCB senior case manager stated:

Clmt called. He said he would like to re-open this claim. I confirmed we had discussion re: this last month. I advised that he was considered recovered and cleared for full duty July 18/11. If symptoms increased in August 2013, it would not be considered to be related to this claim, and he should file a new WCB claim.

On March 28, 2014, a worker advisor requested Review Office to reconsider the WCB decision of November 22, 2013 and also to determine whether or not the worker's low back difficulties in August 2013 were a recurrence of his November 2010 compensable back injury.

On July 3, 2014, the employer's representative made an appeal submission to Review Office which was shared with the worker advisor for comment. On July 21, 2014, the worker advisor responded to the employer's submission.

On July 25, 2014, Review Office stated that it could not find the evidence to support that the worker had an accident as defined in The Workers Compensation Act (the "Act") at the end of August 2013. This finding was based on its review of the file information which included the worker's job duties/work demands and his varying work hours. Review Office found that the worker's need for medical attention on September 5, 2013 was the result of an incident that occurred at home at the end of August 2013 when the worker bent down to put on his shoes.

Review Office noted that the worker was diagnosed with a lumbar disc protrusion/herniation in relation to his 2010 WCB claim. Review Office did not find the evidence to support that the worker continuing to work his job duties structurally changed the pre-existing lumbar disc protrusion. Review Office referred to an MRI report dated November 21, 2013 which stated: "Comparison is made to a prior study of January 2011" and "The disc is larger with more extensive inferior extrusion." Review Office stated that it was unable to establish that the changes noted in the MRI were the result of the worker performing his job duties. It found that the worker had been without any symptoms for two years prior and was able to perform his work duties without complaint. The worker discontinued working, removing himself from his work duties and his symptoms did not subside.

On August 5, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged for November 25, 2014. The hearing was cancelled and was rescheduled to take place on September 30, 2015.

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 provided a written submission on behalf of the worker. The worker advisor submitted that the claim is acceptable on the basis of a cumulative injury related to his physical work as a healthcare aide with 3 different employers. He said that the nature of the work duties involving bending, twisting, and lifting at the waist, combined with a degenerative spine condition, caused or contributed to the development of his L5-S1 disc herniation and associated sciatica.

Alternatively, he submitted that the claim is acceptable on the basis that the worker, in continuing to perform physical work that was unsuitable for him likely caused or contributed to an aggravation or enhancement of his disc herniation and sciatica.

The worker provided information regarding his duties with his 3 different employers and described the working conditions and physical requirements of the positions. He described his position and bi-weekly hours:

Employer 1: .7 position as a healthcare aide at a healthcare facility. Duties include helping patients to transfer from bed to the chairs, from the chair to bed. Some transfers utilize machines. Some patients weigh more than 400 pounds.

Employer 2: casual position approximately 38 hours in a two week period for a community based healthcare service, providing home care which can include helping clients with bathing and personal hygiene.

Employer 3: .4 position (approximately 31 hours every 2 weeks) as a healthcare aide with similar duties to Employer 1, however, the patients at employer 3 are more mobile.

The worker advised that he continued to work for Employer 1 in September and October performing his regular duties. He said he performed normal duties during this period. He said that he saw a physician but the physician did not provide him with a note for time off, so he continued to work. He said that:

"And then I spent, since September 5th when I saw my doctor until October 9th when I stopped working. So at that period I was doing all my duties as a normal worker. I didn’t take off any duties."

The worker described an incident that occurred at his home on August 30, 2013 when he was preparing to go to work for Employer 2. He said that as he bent down to put on his shoes, he felt pain in his lower back running to his ankle in his right leg. He said that he bent at his waist to reach down to tie his shoes.

The worker advised that he did not take any time off work after this incident. He saw his family physician who recommended that he get physiotherapy treatment. He later went to a walk-in clinic where he was prescribed anti-inflammatories, but due to an allergic condition he did not fill the prescription. Subsequently, he went to a sports injury clinic and was advised that he should stop work.

The worker confirmed that he stopped work on October 11th and returned to work on December 9th. He said that he initially worked light duties upon his return to work but was able to return to full duties at all 3 of his jobs. With respect to his current medical condition he advised that he still had a problem. He said he is not completely recovered and that he has numbness from his lower back up to his middle toes on his right leg. He said he feels numb all over his leg, that it is worse when he works.

In answer to questions, the worker acknowledged that he first felt the pull in the right foot area when he bent down to tie up his shoes at home. He confirmed information on the file that indicates that his symptoms increased after this incident.

Regarding his co-workers' comments on file that there were no changes in workload and patient size at Employer 1 in the fall of 2013, he advised that the nurses tend to ask him to assist with heavier patients rather than ask his co-workers who are female.

Regarding the worker's position that the worker's injury was aggravated by his employment, the worker's representative said:

"Now, in relation to his job at [Employer 3] and [Employer 2], what I am suggesting is that, you know, if the panel doesn’t find that his job duties at those work places had anything to do with the initial onset of pain from bending over and tying the shoes, then I’m suggesting that, at that point forward when he continues working, and even after the disc protrusion is confirmed, he keeps working because he is not instructed that he needs to stop working."

In response to a question about the opinion of the WCB medical advisor, the worker's representative stated that:

"Again, the medical advisor keeps repeating there was no workplace accident. I’m saying there was a workplace accident. His performance of the work duties, I’m saying, was the workplace accident -- the thing that is done and the doing of which....

So on that basis, I’m saying the work duties is the workplace accident, and that in my mind played a role in either the onset of his back pain or, if you don’t accept that, then to consider that if the work duties he performed after that aggravated or perhaps enhanced his back injury."

Employer's Position

The employer representative, who acts for all 3 employers, acknowledged that she was prepared to proceed with the hearing and address the noted issues. She said it is the employer’s position that his condition didn’t arise out of and in the course of his employment, specifically, with Employer 1, nor was it due to a cumulative injury with the other two employers.

The employer's representative noted there was a specific incident that happened at home and it was this incident and not work that was the cause of the worker's back difficulties.

With respect to the worker's evidence of his job duties, the representative noted that the worker described specific incidents which were not previously noted on file.

The employer representative also noted that while an incident date of August 30, 2013 was provided, the claim was not filed until October 11, 2013. She noted that the worker contacted the WCB case manager who dealt with the worker's 2010 injury with Employer 2, and indicated that he had a recurrence of back pain which had gradually increased over the past few weeks. No new incident was identified. He was advised to file a new claim.

She noted that in his report to the WCB in 2013 he indicated that his job involves heavy lifting and that, recently, there were more heavy patients at Employer 1. On October 22nd the worker told the WCB representative that the workload is different. He said, there are more patients in bed, and the last three or four months there have been more heavy patients in weight.

The representative noted that when the WCB contacted two coworkers and a supervisor, they all confirmed that they saw the worker limping. However, there was no indication that there was any change in patient type or workload. There were no changes at all. The employer representative submitted that there was nothing different about his work activities at Employer 1 that would account for the rise in problems.

Regarding his work at Employer 3, the employer representative noted that the worker advised a representative of Employer 3 that he was not injured at Employer 3. The employer representative added that there was no evidence that he was injured while working for Employer 2.

The employer representative reviewed the medical information and submitted that "The medical information doesn’t support a cause and effect relationship between a flare-up of pain with his work duties."

She noted that at his doctor’s appointment on October 4, 2013, which was reported in an October 30th letter, there was no mention made of a workplace injury, and the doctor was unable to correlate his back pain from this visit to an August injury. She also noted that:

· the report dated October 12, 2013 from a sports injury clinic indicated pain since August 2, 2013, no known injury. The October 29, 2013 physiotherapy report, provided a description dating to 2010, and mentioned the incident of bending over to put shoes on at home in August.

· the physiotherapy chart notes which were provided in November 2014 didn’t indicate a work-related cause.

· the September 23, 2013 initial visit identified an onset of back pain on getting up three weeks before the appointment date.

The employer representative then addressed the suggestion that the worker's hours of work increased and this was causative of the worker's low back and right leg difficulties. While the worker may have worked additional time in the last two weeks of August, this does not correlate with his back injury. The employer representative stated that it is the employer’s position that working one or two extra shifts in a two-week period would not account for the development, aggravation or enhancement of a disc herniation.

The employer representative also noted that extensive medical information revealed significant degenerative disc disease, which can flare up with no inciting event, or even something as minor as tying up one’s shoes.

In closing the employer's representative submitted that:

"There’s no work-related incident. So there’s no cumulative cause with any of the three employers and, frankly, there was no specific cause either. So we would ask the panel to deny his appeal."

Analysis

The worker is appealing the WCB Review Office decision that his claim for a lower back injury is not acceptable. For the worker's appeal to be approved, the panel must find that the worker's low back injury arose out of and in the course of his employment or was aggravated or enhanced by his workplace duties. The panel was not able to make either of these findings.

The discussion at the hearing was focused on the possible cause of the worker's injury or aggravation and increase in his symptoms commencing in late August 2013 which resulted in the worker's inability to work.

While the worker had sustained a specific injury in the past, there was no reference to a specific workplace injury which caused his symptoms and his inability to work on this occasion. The worker advisor submitted that:

1. The worker sustained a cumulative injury claim due to his job duties working for 3 employers over many years. The worker's representative advised that while primarily aiming at his employment with Employer 1, it is felt that work with all 3 employers played a part in his injury. It was submitted that these duties, which involved bending, twisting, and lifting at the waist, caused or contributed to the development of his L5-S1 disc herniation.

2. Alternatively, the worker's action in continuing to work for 3 months after the onset of symptoms in August 2013 resulted in an aggravation or enhancement of his then symptomatic back condition.

In support of this position, it was submitted that the worker's injury was due in part to a change in duties over this period. The worker said that his duties with Employer 1 had changed in August as there were more patients, the patients were heavier than usual and required more care, and he worked more shifts.

The panel notes that the WCB attempted to confirm the change of duties, by contacting co-workers and a supervisor with Employer 1. It was not able to confirm a change of duties. The panel agrees that the evidence does not establish that the worker's duties changed. The panel is not able to attribute the worker's symptoms or diagnosis in the fall of 2013 to a change in the worker's duties at Employer 1. As well, there is no evidence to support any incidents or change of symptoms or reporting of same at Employers 2 and 3 to support a cumulative injury.

The panel has considered all the evidence on the claim file as well as the evidence and argument made at the hearing. The panel is not able to find, on a balance of probabilities, that the worker's difficulties in the fall of 2013 are due to his workplace duties. The panel finds that the worker's claim is not acceptable, as either a cumulative claim or an aggravation of a pre-existing condition.

The worker had a pre-existing L4-L5 disc injury in 2010. The panel notes the December 23, 2013 comments from a WCB medical advisor regarding the worker's increased symptoms in the fall of 2013. She commented that:

"There is clear evidence of recovery from the disc related to the 2010 claim. If there was a further workplace activity or injury that caused a recurrence of the condition, then it could be medically related to the initial accident. But there has been no documentation of another workplace accident...Considering the worker's age and the worsening of the disc pathology despite no further injury, this would support that the disc changes are degenerative."

The panel accepts the WCB medical advisor's comments that the injury in 2013 is likely degenerative.

We also note that the onset of symptoms reported by the worker corresponds with an incident which occurred at the worker's home in late August 2013 when he bent over to put on his shoes. The worker acknowledged that when he bent over, he felt pain which was different from prior pain. He said that he felt pain in his lower back running to his right ankle. The panel notes that after this incident, there is a progression of symptoms, including that the worker was noted to be limping at work on September 1, 2013.

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 4th day of November, 2015