The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he did not suffer an event on October 23, 2014 which caused him injuryarising out of and in the course of employment. A hearing was held on October20, 2015 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On October 31, 2014, the worker filed a claim with the WCB for a low back injury that occurred on October 23, 2014. The worker claimed that he bent down to get underneath a duct and felt a pull in his low back. When he stood up, he felt a shooting pain up his back. The worker stated that he finished the job that same day and they drove back to Winnipeg.

The worker advised the WCB that he had a car accident over a year ago and was cleared by his physiotherapist. He did not lose time but the accident threw his hip out. The worker stated that on his way back to Winnipeg, he contacted his physiotherapist and saw him on October 23, 24, 27 and 29 and that the treating physiotherapist put it through his old Autopac claim. As the pain never went away, he went to see a doctor on October 30. On October 29, he contacted his supervisor and they spoke about work only. He did not tell him about his back at that time because he wanted to see his doctor first and do a couple more physiotherapy appointments.

The Employer's Accident Report dated November 3, 2014 stated that they were opposing the acceptance of the claim as there was no report of injury on October 23, 2014 or immediately thereafter. The employer indicated that the worker apparently woke up with a stiff back on October 23, 2014 and stated that nothing occurred at work prior to that to cause it. The employer believed that the worker's back issue was not related to work.

In a letter to the WCB dated November 3, 2014, the employer's advocate stated:

"The claimant never initially made a report of an accident to the employer and, to our knowledge, there was no work accident. In fact, after investigating the claimant's late report the employer determined that the claimant had advised that he actually woke up on October 23, 2014 with a sore back. As such it would appear that the origins of his back condition are not work related and the symptoms actually started while he was not working.

...the claimant had multiple opportunities to report his alleged accident/injury to the employer prior to his mentioning it on October 30, 2014. He had several conversations with the employer between October 23-30 regarding a his [sic] future work schedule and yet failed to mention that he had a work accident or injury until October 30. Furthermore, the claimant was well aware of the employer's strict rule that all work related incidents, accidents and injuries must be reported on the day they occur.

In summary, there is no evidence that any workplace accident took place and the evidence actually indicates that the claimant's symptoms and any related disability started while he was off work. As such, we do not believe that the circumstances of this claim meet the definition of an accident under the Workers Compensation Act nor does it meet the definition of a work injury."

Initial medical reports showed that the worker attended a physiotherapist on October 23, 2014. The worker's description of injury was "bent forward with twisting motion to go under ducting - sharp LBP "(low back pain)". The diagnosis was a lumbar muscle strain.

On October 30, 2014, the treating physician stated in part: "Injured back at work on October 23rd. Occurred during a heavy lifting maneuver from flexion to extension motion...Initially, he regarded this as a minor event that would not limit his capacity to assume his work related duties more than a few days. However, his lumbar pain has progressed to the point where it is constant (6/10), back dominant, exacerbated with lifting or flexion and with an unremarkable response to extension."

On November 3, 2014, the worker spoke with a WCB adjudicator and provided the following information:

• on October 23, he and a co-worker were working. Initially 3 guys were supposed to go to the job but he and his co-worker got the job done in the same amount of time. The worker said he worked 40 days straight. Initially they were supposed to stay at a hotel but ended up staying at a camp with crummy beds and bad food.

• prior to work on October 23, 2014, his back was stiff. He attributed the stiffness to the bad bed and working 40 days, nothing that he was concerned about. They did their stretches that morning.
• at 7:30 a.m. he was about to go under duct work. The duct was a straight 90 degrees almost at the ground. He was on his elbow, bending at the knees and waist. He twisted his back to lie down and wiggled to get under the duct when he felt a pull in his low back. He continued to work the job and by the end of the day he was limping. His co-worker did most of the packing up and drove them back to Manitoba. His low back was very painful and tight by the time they got home Thursday evening. After he saw his physiotherapist, his back loosened up a bit, and he first noticed radicular symptoms from his low back to his knees in both legs.
• he spoke with his employer on Wednesday, October 29 and was told there was work for Thursday. He told the employer that he had medical appointments and could not work. He did not tell the employer that he was hurt at work.
• on October 30 he saw his doctor and realized that his injury was more serious than he thought and he reported the work injury to his supervisor.
• he did not report an injury right away as he was hoping that it was a pinched nerve like he had previously and that it would resolve on its own.

On November 10, 2014, the WCB adjudicator spoke with a co-worker identified by the worker. The co-worker confirmed that he and the worker were working together out of town. They were working in the corner of a larger room and the worker was bent down to work. When he stood up, he could see that the worker was in pain. They were doing installation and it was around the last day when the worker injured himself. The worker kept working because he thought it was just a pinched nerve.

On November 13, 2014, the WCB adjudicator contacted the employer to advise that the WCB was accepting that the worker's back difficulties occurred at work on October 23, 2014. The WCB noted the information provided by the co-worker who witnessed the worker attempting to get under low duct work when he experienced low back difficulties, and the report from a physiotherapist who provided the same mechanism of injury. The decision was confirmed in writing to the employer on November 17, 2014.

On November 26, 2014, the employer's advocate appealed the adjudicator's decision to Review Office. The advocate outlined a number of factors to support his position that the circumstances of the claim did not meet the definition of an accident. These included the worker's delay in reporting the accident to his employer and his delay in seeking medical treatment. The advocate noted that simply bending over without an accompanying lifting, did not meet the definition of an accident. The advocate said there was a disconnect between what the worker told his doctor and what he actually reported to the WCB. The advocate felt there was ample evidence to show that the worker's back injury pre-dated his reported work incident. Reference was also made to the treating physiotherapist's remarks of November 5, 2014, who stated "worker's back worsened yesterday, his radicular symptoms flared up/part of it is psychological." The advocate said this was important as it showed that the worker's flare up occurred without any work intervention or work cause, which suggested that it was a spontaneous onset of his pre-existing back condition.

On March 26, 2015, Review Office accepted the employer's appeal and found that the worker's claim was not acceptable and that he was not entitled to benefits. In making its decision, Review Office referred to specific file evidence to support its position that the worker gave varied histories regarding the origin of his low back complaints to treatment providers and the WCB. It was felt that the file evidence did not support that he suffered an event on October 23, 2014 which caused him injury arising out of and in the course of employment. On April 17, 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.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The WorkersCompensation Act (the “Act”), regulations and policies of the WCB's Boardof Directors.

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

The worker is appealing the WCB decision that denied his claim. The keyissue to be determined is whether, on a balance of probabilities, the workersustained personal injury by an accident arising out of and in the course ofhis employment on October 23, 2014.

The Worker's Position

The worker was represented by a worker advisor. It was submitted that therewas sufficient information on the file to accept the claim, rather than thefindings of inconsistent information from the worker and co-worker that werethe basis of the Review Office decision denying the claim.

The worker advisor noted that a co-worker reported that he worked alongsidethe worker on October 23, 2014 and observed him holding his back and in obviouspain upon standing up from a crouched position. The co-worker was not aware ofprior back difficulties. Further, the worker saw a physiotherapist later thatday who recorded a history consistent with that provided by the worker to theWCB. While the worker may have been experiencing earlier pain and stiffness inhis back, this was different than the acute injury that he suffered on thatday. The worker advisor also noted that while there was a delay in reporting,it was within the time frame allowed under Section 17 of the Act and was not amajor consideration in any event since the worker's injury had been witnessedby a co-worker.

The Employer's Position

The employer was represented by an advocate. The employer's position wasthat it agreed with the rationale included in the Review Office decision. Itwas submitted that the week's delay in reporting was significant andunjustified given the regular contact between the worker and the employerduring that week when he was seeking more work and given the employer's strictand well-known rules regarding the reporting of workplace injuries andincidents.

The advocate also pointed to a number of inconsistencies as to how theinjury had occurred. The worker had at one point indicated he had bent over andfelt shooting pain in his back. It was also indicated that the worker hadawakened with a sore and stiff back. It was suggested that this mechanism ofinjury would, without an accompanying lift, be a normal bodily movement thatwould not qualify as an accident under the Act. The worker's doctor, meanwhile,reported a heavy lifting maneuver. The advocate also asked the panel toconsider the physiotherapist's remarks that the worker was a "regularpatient of theirs" for back issues prior to the date of the accident and alater November 5, 2014 report of a flare up the day before. The flare upwithout a work cause suggests that the worker is prone to spontaneous onsets ofhis pre-existing back condition.

Analysis

The issue before the panel is whether the worker's claim is acceptable.  For the worker's appeal to be successful, thepanel must find on a balance of probabilities that the worker sustained a"personal injury by accident arising out of and in the course ofemployment." After consideration of all the evidence on the file and atthe hearing and with due regard to the submissions made on behalf of the workerand the employer, the panel was able to make this finding.

At the outset, the panel notes that this is an extremely challenging case toadjudicate because of the difficulties in establishing the original mechanismof injury, that is, how the injury had actually happened.

·        In the Worker Incident Report filed on October31, 2014 (8 days after the incident), the worker advised that "As I wentto bend down to get under a duct and felt a pull in my lower back. When I stoodup, I felt a shooting pain up my back."  

·        On October 23, the worker's physiotherapist noteda history of "bent fwd with twisting motion to go under ducting, sharp LBP"and provided a diagnosis of lumbar muscle strain, left SI sprain.

·        On October 30, the worker's physician provided ahistory of an injury at work on October 23 which "Occurred during a heavylifting maneuver from flexion to extension motion. Immediate sharp lumbar painexperienced and was unable to fulfill heavy lifting duties for rest of day.Initially he regarded this is a minor event that would not limit his capabilityto assume his work related duties more than a few days. However his lumbar painhas progressed to the point where it is constant (6-10)..."

·        On November 10, a co-worker advised a WCBadjudicator that he had been working with the worker. They were working in thecorner of a larger room. The memo notes that "Worker was working incorner, bent down to work. When he stood up could see that the worker was inpain, worker was holding his pain (sic) and could tell that he was in pain.They were doing installation all worker had in his hands were his tools. It wasaround the last day when worker injured himself, after that worker kept workingbecause he thought it was just a pinched nerve." The memo furtherindicates that throughout the whole job, the worker had been fine up to thatpoint as far as he knew. The co-worker also indicated that with that particularemployer, they did stretches every morning and the worker was having nodifficulties that he was aware of.

·        At the hearing, the worker variously attributedthe back pain to:

o  The intense work schedule that he had beenworking.

o  The tiny bed that had been provided to him.

o  A harness lanyard that crossed his back, causinghim middle to upper back pain.

o  The specific job duties he had been performingwhen his back pain worsened. At the hearing, he indicated he had rolled under avertical duct which stopped a foot from the floor to attach an end cap, thenrolled out or away from the duct when he felt the back pain, and had commentedon same to his co-worker, who then "did the majority of the hauling andstuff" until the job was completed at noon.

At the hearing, the worker's representative and the panel questioned theworker extensively and carefully as to his job duties on the day in questionand exactly how he had been injured. The worker provided photographs of thearea where he had been working. However, even with this information, thepicture of what specifically happened on that day is not fully clear.

Notwithstanding these inconsistencies, the panel finds that the worker didsuffer an acute injury while performing his job duties on the morning ofOctober 23, 2014, based on the following considerations:

·        The worker had been working for an extendedperiod on an out of town project. He may have had various aches and pains priorto October 23, 2014. However, none of them were to the lower back area, whichwas the specific area identified in the physiotherapist report later on thatsame day.

·        The co-worker and the worker both confirm thatthe employer required its employees to participate in morning stretches at thebeginning of the work day. The co-worker and worker both confirm that theworker was able to perform the morning stretches without incident or complainton October 23, 2014. At the hearing, the worker provided a description of thestretches performed that morning:

Q.        Andwhat kind of stretches do you recall performing that morning?

A.        Ourergonomics were the same every day. You start from your head, you work all theway down to your feet. So you do neck stretches, you do back stretches, arm,hand, your leg. Bend down, you do ankle stretches. You stretch every joint inyour body.

Q.        Whatkinds of back stretches do you recall doing?

A.        Youwould cross your legs, you would bend over touch your toes, hold that for awhile. You would do side to side. You would kind of go back and then kind ofwork around just to get everything loose, so there's quite a few backstretches.

Q.        Howlong would you say that you performed stretches that morning?

A.        It'sa good ten, 15 minutes every morning. That was the same when we were in [city]as well, we did the same stretches. It was mandatory by [employer] that you doergonomics.

The panel finds that the worker's ability toperform this exercise routine without apparent difficulty (as noted by theco-worker) is not consistent with a finding that the worker had been hurt priorto the commencement of his work shift on October 23. The other areas of generaldiscomfort described by the worker, such as the middle and upper back areas,were not the areas identified and treated by the worker's physiotherapist laterthat day.

·        The panel finds that something happened at workat a specific location that morning as a result of which the worker suffered alow back injury which was diagnosed later that day as lumbar back strain, leftsacroiliac sprain. In this regard, the panel notes that the co-worker andworker were consistent in their descriptions of where the worker was workingand in general what the worker was doing -- working on his back on ducting nearthe corner of a large room -- when the worker's back problems became evident.

·        There are discrepancies as to what exactly theworker was doing or what specifically triggered the back pain. He may have beenbending down or up, or moving to get onto his back or to get up. However, inthe panel's view, all of these scenarios are part of the worker's regular jobduties, and the movements associated with the worker's specific job tasks inworking on the ducting are consistent with the diagnosis provided by the worker'sphysiotherapist later that day of an initial diagnosis of a "lumbar musclestrain, left SI sprain."

·        The panel finds that the co-worker's evidencewas a significant factor in establishing that the worker had been injured atwork on October 23. He was not aware of any back difficulties prior to thatday, had done morning stretches with the worker, had been working with and wasaware of the worker being hurt at work, and had taken responsibility to load upthe tools and to drive back to Winnipeg when the job had been completed atnoon. He was aware that the worker was planning to see his physiotherapistlater that day.

·        Given the immediate medical attention receivedby the worker and the worker's belief that the problem might go away in thedays following, the panel places less weight on the worker's one week delay informally advising his employer of his work injury.

Based on our analysis, the panel finds that the worker did, on a balanceof probabilities, have an accident arising out of and in the course of hisemployment on October 23, 2014. The panel therefore finds that the claim isacceptable. The worker's appeal is successful.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 15th day of December, 2015