The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")to deny her claim for compensation.  Ahearing was held on November 17, 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 6, 2014, the worker filed a claim with the WCB for injury to her lower back and shoulders. The worker identified the date that the incident occurred as September 23, 2014, and the date it was reported to employer as October 6, 2014. The worker indicated that she delayed reporting her injury to the employer because she wondered whether "maybe it would go away but it started to hurt more."

The worker noted she had a client with a ceiling lift in her home. She transferred her from the recliner chair to the commode. She felt a stretch on her back but just ignored it. In addition to that, she had to turn the client left and right to remove her from the sling from both sides. She had to place a pillow under her on her back. All these things hurt her back and shoulders. She finished her shift that day and had 5 more clients afterwards. Her back was sore but she just ignored it, thinking she had just stretched it. At home, she put A535 on and took Tylenol. On October 5th, she called in sick because her lower back was hurting.

The Employer's Accident Report, dated October 10, 2014, confirmed that the worker reported that she was injured while turning a client to get the ceiling lift sling out from underneath her. The date of accident and date reported to employer were similarly listed as September 23 and October 6, 2014, respectively.

On October 7, 2014, the worker attended a physiotherapist for treatment, and was diagnosed with a thoraco-lumbar musculo-ligamentous strain.

On October 9, 2014, a WCB adjudicator spoke with the worker to discuss her claim. The worker provided further details regarding the work duties she was performing at the time. She indicated that she worked her regular job duties between September 24 and October 4, as she did not want to miss work. She said that she told her client that she hurt her back, but did not tell any co-workers, as she works alone.

In a decision dated October 14, 2014, the worker was advised by Compensation Services that her claim was not acceptable based on the delay in reporting her injury and in seeking medical attention, as the WCB was unable to establish that her injury "arose out of and in the course" of her employment.

At the request of the worker's union representative, a WCB adjudicator spoke with the worker on December 15, 2014 to obtain additional information regarding the condition of her back between September 23 and October 6, 2014, the nature and progression of her symptoms, and what contact she had with her supervisor or someone from work. The worker was also asked to explain why she did not report her injury sooner, given that she had prior WCB claims. The WCB adjudicator spoke with the worker again on December 17, 2014 to obtain further information with respect to her daily activities.

By letter dated December 17, 2014, the worker was advised by Compensation Services that no change would be made to the original decision to disallow her claim. The WCB adjudicator stated, in part:

Based on the review of all information on file, although you state you work alone and took medication for your symptoms, you were capable of performing your regular job duties which involve bending and lifting with no complaint, contact with your employer, or medical attention for a period of two weeks. In addition, you stated your time loss began after you began to experience increased symptoms after attending church, prior to starting your shift, on October 5, 2014. Based on all information received, Compensation Services is unable to confirm that an accident as outlined in Section 1(1) of the Workers Compensation Act has occurred on September 23, 2014 as you reported.

On January 27, 2015, the union representative appealed the decision to disallow the worker's claim to Review Office. On February 3, 2015, the employer's advocate advised Review Office they would participate in the worker's appeal. The employer's advocate filed a submission to Review Office on March 17, 2015.

On April 7, 2015, based on a review of the file, Review Office determined that there was insufficient evidence to support that the worker sustained an accident on September 23, 2014 as defined in the legislation. On May 7, 2015, the union representative 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 provide 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.

Subsection 17(1) of the Act states that a worker shall provide the employer with notice of an accident as soon as practicable, and not later than 30 days after the accident.

Worker's Position

The worker was represented at the hearing by a union representative, who made a presentation on her behalf. The worker answered questions from the representative and the panel.

It was submitted that the evidence established that the worker sustained an injury on September 23, 2014 while she was maneuvering a client on her own and she felt a pulling sensation in her back. This was a discrete and identifiable incident, which the worker described in detail.

The representative stated that although the worker was in pain, she continued to work and managed her pain by applying topical cream and using painkillers. She said that she could not afford to miss any time from work. She did not report her injury because she believed that it was a temporary situation and would get better in time. Within 2 weeks of her injury, however, she realized that it was not improving as she had hoped and was unable to continue working due to her back injury.

It was submitted that the worker came to this realization on Sunday, October 5, after she had attended church. There was no intervening injury or event which occurred at that time. It was simply a realization that she was not healing and recovering as she had originally hoped.

The representative noted that on October 5, the worker phoned her employer and reported that she was unable to work due to her back injury. She was then told that she needed to report her injury, which she did the very next day. The worker remained off work for a relatively short period of time, returning to work on modified duties around October 14, 2014. She continued to work in a modified duty position for about 2 months, after which she returned to her full regular duties.

It was submitted that this was not a case where there was any intent on the part of the worker to withhold information regarding her accident or injury. She truly thought that she would recover and hoped that that would be the case. When she realized it was not, she reported her injury. The delay in reporting was relatively short and well within the timeframe in the legislation, and the worker has provided a reasonable excuse for that delay.

Asked what her sense of what the diagnosis of that injury would be, the worker's representative stated that it was a strain. She noted that was the diagnosis which the physiotherapist had provided. She submitted that the mechanism of injury which the worker described was certainly suggestive of a strain injury. She was working her regular duties up until that point in time. She struggled to continue with her regular duties until she could no longer do so. The worker was off work for a short period of time, worked modified duties for about 8 weeks, then returned to her full-time regular duties. The representative submitted that the injury resolved within this period of time, as evidenced by her return to her regular duties.

The representative acknowledged that the worker has a degenerative condition and that the worker currently has ongoing issues, but submitted that those issues are not the same as what was going on then she reported her injury in October 2014 and are not disabling her from doing her regular duties at this time. She submitted that the existence of a pre-existing condition does not disqualify a worker from receiving benefits for her workplace injury.

Employer's Position

The employer was represented at the hearing by an advocate. The advocate advised that the employer supports the decision that the claim is not acceptable, and agrees that there is insufficient evidence to conclude that the worker sustained a workplace injury on September 23, 2014.

The advocate noted that the reported mechanism of injury was that the worker was assisting a client in the course of her regular duties. The worker continued, however, to work her regular duties for 2 weeks after that, without complaint and without seeking any medical treatment.

It was not until October 5, 2014, following her church attendance, that the worker felt a sudden stabbing pain. In the advocate's submission, this was a distinct episode where she had disabling pain while off work.

The advocate noted that on September 23, 2014, the worker did not notify the employer that she had sustained an injury. It was not until October 6, 2014 that she notified the employer of this. When she called in sick on October 5, 2014, she did not relate her absence to an incident at work.

It was the employer's position that the worker had had prior claims, and would have known that she could have been compensated if she had put a claim in promptly. She could also have been provided with modified duties.

The advocate noted that the record shows that the worker's pain became incapacitating after sitting on a hard pew at church, an intervening circumstance that could well have contributed to her pain complaints.

The advocate noted that the evidence shows that the worker's complaints persist and her condition has not resolved. She submitted that this is not consistent with a strain type injury occurring a year ago, the normal recovery period for which would be maybe 4 to 6 weeks, or 6 to 8 weeks maximum. It was submitted that the worker's difficulties were and are consistent with degenerative disc disease, the nature of which is that there are bouts of pain which come and go, increasing in frequency with or without an inciting event.

The advocate concluded that given the delay in reporting, the delay in seeking medical treatment, the worker's ability to continue working in her full regular duties, and a sudden worsening of the worker's condition 2 weeks later while not at work, it is impossible to conclude that a workplace injury occurred or that it was disabling.

Analysis

The issue which is before the panel is whether or not the claim is acceptable. In order for the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment on September 23, 2014. The panel is able to make that finding.

The panel notes that the worker identified a specific incident and provided a detailed description of how she was injured as a result of the incident. The panel is satisfied that the reported history of that incident is consistent throughout the file.

The panel finds that the mechanism of injury, as reported by the worker, is consistent with and suggestive of a localized strain injury as diagnosed by the treating physiotherapist. The worker tried to work through the pain by applying topical cream and taking painkillers, but the evidence indicates that the symptoms worsened as she continued to perform her duties.

The panel finds that the nature and anatomical area of the worker's symptoms did not change on October 5, 2014. There is no evidence of a separate intervening incident or event. The worker's condition was essentially the same, but had reached the point where she could no longer perform her duties and required medical attention. What had occurred was an exacerbation of the symptoms present since the September 23, 2014 injury and not a discrete intervening event. At that point, the worker went to see her doctor, who sent her to see a physiotherapist. The physiotherapist diagnosed the worker as having a back strain.

The worker was unable to work for approximately ten days after that. She then returned to work on modified duties, and was ultimately able to return to her regular full-time duties after a period of 2 to 3 months. In these circumstances, the panel finds that the injury resolved within a relatively short period of time, which is consistent with the diagnosis of a strain.

The panel notes that there is evidence that the worker has a pre-existing degenerative disc condition, and accepts that the worker has what may be described as a "back at risk." The panel does not accept, however, that the worker's pre-existing condition accounts for the worker's difficulties in this case. Rather, the panel finds that the work-related compensable diagnosis is that of a strain in the environment of a pre-existing degenerative disc condition.

The panel finds that any delay in reporting the September 23, 2014 incident to the employer and the WCB was not unreasonable. The panel accepts the worker's explanation that she could not afford to take time off, and that she thought and was hoping that the injury was temporary and would get better. The worker reported the incident and injury as soon as she realized that she could no longer perform her duties, which was less than 2 weeks after the incident occurred. On the evidence, the panel finds that any delay in reporting is not a bar to the claim or a significant factor in our analysis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a back injury on September 23, 2014 as a result of an accident that arose out of and in the course of her employment, and that the claim is acceptable.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 14th day of January, 2016