The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her time loss from work on January 16, 2015 was precipitated by anaccident that occurred at home on January 14, 2015 and was not related to hercompensable low back injury.  A hearingwas held on November 24, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefitsfor her absence from work on January 16, 2015.

Decision

That the worker is entitled to wage loss benefits for herabsence from work on January 16, 2015.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her back and neck that she related to lifting and lowering at work on January 2, 2015. The worker sought medical treatment on the day of the accident, and was diagnosed with muscular strain and referred for physiotherapy. She was assessed that same day by a physiotherapist, who diagnosed a right neck sprain/strain, right low back sprain/strain and right mechanical SI dysfunction.

On January 13, 2015, a WCB adjudicator spoke with the worker. It was noted that the worker said that she was not scheduled to work for 4 days after the date of the accident, and that she returned to work at the start of her next tour, but was being cautious of things such as lifting and certain movements like crouching.

On January 16, 2015, the worker called the WCB and advised that while she was at home on January 14, she lifted a light bag which weighed about 10 pounds and felt an aggravation of her injury on her lower right side. The worker indicated that her arm was somewhat outstretched at the time. She said that she went to see her physiotherapist on January 15, and he suggested that she not work on the evening of January 16. Her next scheduled shift was on January 21, 2015.

In a letter to the case manager dated January 16, 2015, the worker's treating physiotherapist wrote, in part:

[The worker] recently attended for a follow up appointment on Jan 15 with reports of a flare in right low back pain and spasm since lifting a garbage bag the day before. Objective findings highlighted a substantial loss of [range of motion] in the lumbar spine with increased irritability noted. Due to the irritability that was present and the amount of physical lifting that is required during full job demands…I advised for [the worker] to refrain from returning to work the next day to allow the current symptom flare to settle. Based on the objective examination findings, there was a high probability that returning to work the next day would cause further aggravation of symptoms and ultimately further prolong disability. It is anticipated that the above flare will settle over the next 2-4 days.

On January 20, 2015, the WCB adjudicator spoke with the worker's treating physiotherapist who said the worker had been seen by a different physiotherapist at the clinic on January 8, and that he saw the worker on January 12. The physiotherapist noted that the worker was not 100%. He said it was charted on January 8 that the worker had a slight flare at work that day, and the chart notes for January 12 indicate that the worker had some issues at her return to work the previous Thursday/Friday (January 8 and 9) and that it was starting to settle. It was noted the worker saw the physiotherapist again on January 15, after lifting a bag on January 14, and the physiotherapist felt at that time it was best for the worker to take time off work to let the flare-up settle.

On January 20, 2015, the worker was advised that the WCB would not accept responsibility for the wage loss she experienced past the date of January 14, 2015. It was stated that in the WCB's opinion, the worker suffered a secondary accident at home while performing a personal activity, and that there was no causal relationship between the subsequent and the original injury.

On March 2, 2015, the Worker Advisor Office appealed the January 20, 2015 decision to Review Office. The worker advisor submitted:

...the referenced physiotherapy reports show [the worker] continued to experience low back and neck symptoms even though she was performing regular work duties. The January 12, 2015 physiotherapy report states [the worker] had not recovered from the compensable injury and lifting activities aggravated her symptoms. Therefore, evidence supports the exacerbation of low back symptoms January 14, 2015 from lifting a garbage bag, is causally related to the January 2, 2015 compensable injury and [the worker] should be compensated.

On March 21, 2015, the employer's representative submitted to Review Office:

We agree that the incident at home, and any disability related to it, should not be covered by WCB. The claimant was at work on January 13 & 14, 2015 without incident and it was the acute and specific act of lifting a heavy garbage bag at home that caused a distinct onset of new symptoms and disability. As such, it is quite obvious that there was a direct causal link between the claimant's non-work incident and her acute disability afterwards. As such, there is no evidence to base her acute disability after that incident on the original work injury.

On April 25, 2015, the worker provided a final written submission to Review Office.

In a decision dated April 30, 2015, Review Office noted that the only shift the worker missed was on January 16, 2015 and that this was the time loss to be considered. Review Office determined that there was no entitlement to wage loss benefits on January 16. They acknowledged the worker's comment that she had been experiencing difficulties prior to January 14, 2015 while performing her work duties. They recognized that the worker had not yet recovered, but noted that she was able to perform her work duties with caution. They noted that it was not until after lifting the bag at home that she missed time from work, and that prior to this date, the worker's symptoms had settled. Review Office found that it was the incident at home that precipitated the worker's need for time off work, and that there was therefore no entitlement to wage loss benefits for January 16, 2015.

On May 12, 2015, the worker advisor 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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but that no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Worker's Position

The worker was represented at the hearing by a worker advisor. The worker responded to questions from the worker advisor and the panel.

The worker advisor submitted that the worker had not recovered from her January 2, 2015 compensable injury when she reinjured her back on January 8, 2015, and further aggravated it on January 14, 2015. The worker was advised by her physiotherapist not to return to work on January 16, 2015. It was submitted that what occurred on January 14 was an exacerbation of her January 2 compensable injury, and that the worker should be entitled to coverage for wage loss benefits for January 16.

The worker stated that she works 12 hour shifts, with 4 days on and 4 days off. Towards the end of her shift on January 2, 2015, she was lifting when she felt pain, especially on the right side of her back. The symptoms progressed as her shift continued, and she sought medical care that same day.

The worker was away from work from January 3 to 5 on scheduled days off.

She returned to work for her next tour on January 6. She said that she was being very careful, and that the next 2 days were slow days, where she was not required to do anything very physical. January 8 and 9 were busier. She said that she was still symptomatic, that there were times when sitting down aggravated her back, and that things would sort of flare and settle. Others were aware of her situation and would help her and do most of the physical work. Towards the end of her shift on January 8, however, she experienced back spasms while lifting. She went to physiotherapy that night, and things seemed to settle a bit. However, her muscle spasms became more acute after January 8, and day to day activities became more difficult and aggravating to her back.

The worker was away from work from January 10 to 13 on scheduled days off. As she was on night shifts at that time, she was also scheduled to be off work on January 14, so that she could attend a meeting on January 15.

The worker said that while at home on January 14, she lifted a small bag which caused tightening and spasms in her back. She described lifting the bag as just one more thing that aggravated her symptoms, like her other regular day-to-day activities.

On January 15, the worker attended a meeting at work, which lasted about 3 hours. She also saw her physiotherapist, who recommended that she was not able to return to work and should continue her physiotherapy. Accordingly, she did not return to work on January 16. She was away from work on scheduled days off starting January 17, and later returned to modified work duties and ultimately to her full-time regular duties with no further time loss.

In summary, it was submitted that the worker was symptomatic just prior to January 14, and that had it not been for the January 2 compensable injury and the January 8 re-injury, she would not likely have injured her back lifting a 10 pound bag.

Employer's Position

The employer was represented by an advocate.

In light of the worker's evidence that she was not at work on January 13, and 14, 2015, the employer's advocate advised that they would not be making a submission. He commented that they had been under the impression that the worker was doing regular duties at work on those dates and had therefore demonstrated some ability to do her work prior to January 16. He advised that in these circumstances, the employer did not object to the payment of one day's wage loss.

Analysis

The issue on this appeal is whether the worker is entitled to wage loss benefits for her absence from work on January 16, 2015. For the worker's appeal to be successful, the panel must find that the worker's absence on January 16, 2015 was causally related to her compensable injury. The panel is able to make that finding.

The worker suffered an acute injury to her back on January 2, 2015, which was accepted as compensable.

The worker went back to work for her next scheduled shifts, from January 6 to January 9, 2015. The panel notes the worker's evidence that she was still symptomatic at that time, and that others helped her and did most of the physical work during those shifts. The panel finds that the worker performed no duties outside ones where she was basically sitting and standing during those shifts.

The panel notes that a second incident occurred on January 8 which was very similar in nature and effect to the incident which had occurred on January 2. The panel notes the worker's evidence that her muscle spasms and symptoms were irritated and became worse as a result of this second incident. The panel finds that this second incident resulted in an exacerbation of the same symptoms as the worker had experienced 6 days earlier.

The panel notes that the worker was not at work between January 9 and January 16, other than to attend a 3-hour meeting on January 15.

The panel finds that the worker's injury was further exacerbated on January 14, 2015 when she lifted a small bag at home. The panel accepts the worker's evidence that this was a small bag, not a heavy garbage bag (referred to in the file), and was in effect "just one more thing that aggravated her symptoms, like her other regular day-to-day activities."

In making this finding, the panel places weight on the treating physiotherapist's comments on January 16, 2015 with reference to the incident on January 14, the physiotherapist's reference to "[allowing] the current symptom flare to settle" and his concern that "returning to work [on January 16] would cause further aggravation of symptoms and ultimately further prolong disability."

Based on the foregoing, the panel finds that the incident on January 14 resulted in a further aggravation of the same symptoms with respect to the worker's original compensable injury, and not a separate or unrelated injury.

The panel therefore finds that the worker's absence from work on January 16, 2015 was causally related to her compensable injury, and that the worker is entitled to wage loss benefits for that day.

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 21st day of January, 2016