The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was not entitled to benefits after November 19, 2014 in relation toher compensable injury of November 18, 2014. A hearing was held on November 9, 2015 to consider the worker'sappeal.

Issue

Whether or not the worker is entitled tobenefits after November 19, 2014.

Decision

That the worker is entitled to benefits after November 19,2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred at work on Tuesday, November 18, 2014. The worker reported that she was restacking boxes that contained accessories when she felt a sudden tweak in her low back. The worker indicated that she finished her shift but had someone else do the lifting, carrying and stacking. The worker indicated that she tried self-treatment but it didn't help. She also made a physiotherapy appointment. The next day she returned to work and modified duties. On Thursday morning, prior to going into work, she bent down and tried to put her sock on and had instant pain right across her low back.

On November 26, 2014, a WCB adjudicator contacted the worker to discuss the events that occurred at work on November 18 and 19, 2014. The worker advised that on November 20, 2014, she had just gotten out of the shower in the morning and when she bent down to put on a sock, she felt an instant pain across her entire low back. The worker indicated that she saw a chiropractor on the same day at 8:00 a.m. and was told she had a lumbar strain/sprain. The worker said she delayed reporting and seeking medical treatment as she was doing self-treatment and was modifying her own duties. She thought she could manage on her own and that she just pulled a glute. She was using the stretching exercises she knew from yoga and being a runner. The pain she experienced on November 20 was not a pain that she had felt before.

The WCB adjudicator spoke to a co-worker identified by the worker. The co-worker confirmed that the worker lifted a box on November 18 and said that it did not feel good. The worker said it was the way she lifted the box and placed it that caused her to tweak her back. She could tell the worker was hurting as she was stretching her back. After the injury, the worker did not do what she normally does. She refrained from climbing ladders and lifting overhead and they were helping her lift the heavier boxes. The worker mentioned that her back was pretty sore the next day as well. On November 19 the worker continued to modify her duties the same way she did on November 18.

In a decision dated January 15, 2015, the worker was advised that the WCB was unable to establish that her ongoing low back difficulties were related to her work accident on November 18 and therefore she was not entitled to wage loss or medical treatment costs beyond November 19, 2014.

The adjudicator acknowledged that an incident occurred to the worker's low back on November 18 and that a subsequent incident occurred at home on November 20 when the worker bent down to put on her sock. Given that there was no medical treatment prior to the home incident, the WCB was unable to compare the status of the worker's back immediately after the November 18 work incident. It was therefore the WCB's opinion that the worker's time loss and medical treatment was related to the November 20 home incident as she sought medical treatment and missed time from work immediately following that incident.

On February 13, 2015, a worker advisor, acting on the worker's behalf, appealed the adjudicator's decision to Review Office. The worker advisor submitted that the worker did not sustain a new accident while getting ready for work on November 20, 2014 but rather she had an exacerbation of her compensable injury.

On April 14, 2015, Review Office determined that there was no entitlement to benefits beyond November 19, 2014. Review Office found that it was the November 20, 2014 incident that precipitated the worker's need for time off work and to seek medical attention. Given the description of the worker's level of pain prior to the November 20, 2014 incident, Review Office did not find that the evidence supported she sustained an exacerbation of her compensable injury as indicated by her representative.

After the November 20, 2014 incident, Review Office noted that the worker submitted a claim with the WCB. When asked why she delayed in reporting to the WCB, the worker indicated she was able to modify her activities and self treat. She was aware of the procedure for reporting workplace injuries but stated she was unsure of the process when an injury is "not serious enough" and she stated she "didn't realize it was an injury."

On April 27, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. Following the hearing the panel requested medical information from the worker's healthcare providers. The material was sent to the parties for comment and the panel met on January 19, 2016 to render their decision.

Reasons

Analysis

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

Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

The worker has an accepted claim for a back injury and is appealing the WCB decision that she is not entitled to benefits after November 19, 2014.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from her representative and the panel.

The worker advisor submitted that the worker is entitled to benefits beyond the date following her November 18, 2014 workplace injury. He noted that the WCB denied the worker's entitlement to benefits because she had an acute increase in low back pain while bending over to put on a sock a day and a half after her workplace accident. He disagreed with the Review Office decision that the act of bending over to put on socks on November 20, 2014 was a new accident. He submitted that the worker's low back symptoms beyond November 19, 2014 were, on a balance of probabilities, causally related to her November 18 workplace injury and, as such, she is entitled to both wage loss benefits to compensate for lost earnings, and medical aid to assist in her recovery. He submitted that the sock incident "likely only caused an exacerbation of her underlying compensable injury, which had yet not resolved." He said it was not a new and distinct event.

He said that this is consistent with WCB policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, because the original injury was probably dominantly attributable to the subsequent increase in symptoms.

The worker advisor noted that the worker's symptoms improved with time off work and treatment and she began a graduated return to work doing lighter duties on December 15, 2014. The worker advisor advised that the worker did not seek medical attention initially because she self-treated, using stretching and yoga at home in an attempt to reduce her symptoms and avoid getting medical attention. She also took over the counter pain medication, for her pain.

The worker advised that she is a merchandise associate. Her category includes everything that is not men’s wear, women’s wear or boot tech. It includes all the little things that are in the store, such as sunglasses, bootlaces, socks, underwear, long underwear, that don’t fall under the parameters of men’s wear, ladies wear or boot tech.

Regarding the incident, the worker said she was moving boxes when she felt the injury She said :

So I was moving those boxes and dealing with, try and organizing them as much as possible, either putting them in an area where I would get to later, or dealing with them, what would be next as soon as our shipment came in... It was kind of from chest height... I was reaching over a box to get to that box so that I could move the boxes over, because the box at my feet was the heavy box that I wasn’t going to pick up and move. So I remember reaching the smaller box on top of this other box that I was going to move, thinking that I didn’t want to get hit in the head by that box. So I was kind of grabbing that one to move it to get to the next box, to move it onto the next...It kind of felt like a, what I, I described it at the time as a tweak. I remember thinking it wasn’t like it wasn’t a sharp stabbing pain, it wasn’t a, it was a tweak. It was kind of a pull pain.

The worker said that she reported the incident to her supervisor. She worked the next day, September 19th, but modified her duties. On the 20th she felt increased pain. She said that:

I got up in the morning and knew I was sore, had my shower, got out of the shower and started getting dressed. And as I got to my socks, I remember standing and putting on, I believe it was my left sock, and I had pain that went from where it was located before I tried to put my sock on, I remember bending down to put my sock on, and pain went straight across my low back. It was the same type of pain, it just radiated from one side to the other.

She acknowledged that originally, the pain was just to the left of her spine, but after the incident putting her sock on, the pain spread across her spine.

The worker advised that she sought treatment from both a chiropractor and a physiotherapist with the view that this would expedite her recovery. She described the treatment which included laser treatment performed by the physiotherapist.

Employer's Position

The employer was represented by its Manager, Absence Management & Wellness and its Absence Management Consultant. The representatives participated by teleconference. The manager confirmed that the worker accurately described the duties of the merchandise associate. She agreed that the boxes vary significantly in size.

The manager advised that the employer will rely upon the panel to determine if the injury the worker sustained on November 20th is related to the workplace injury.

Analysis

The worker has an accepted claim for a back injury that occurred at work on November 18, 2014. She is appealing the WCB decision that she is not entitled to benefits after November 19, 2014. For the worker's appeal to be approved the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid benefits as a result of the workplace accident.

The panel was able to make this finding. In making this decision the panel considered the evidence on the claim file, the worker's testimony, other evidence and argument received at the hearing, and the medical information obtained after the hearing.

To assist with the adjudication of this appeal the panel sought and received reports from the worker's treating chiropractor and physiotherapist. The chiropractor advised that he would see the worker a few times each year but had not seen the worker since May 2014 when he treated her for a sore neck and low back pain. He advised that he saw her on November 20, 2014 when she presented with antalgic posture and was in visible pain. Prior to this date, he had not seen her in this condition. He noted that the worker said she felt she "tweaked" her low back while working and modified her work for the rest of the day. She reported to him that the next day she felt worse and again to him modified her duties. When she came to the chiropractor's office on November 20th, she was "visibly in pain". He provided a working diagnosis of lumbosacral sprain/strain complicated by vertebral subluxation complex. He provided a list of appointments with symptoms and related treatments. He advised that he last treated the worker on February 25, 2014.

The physiotherapist report also provided a description of the work injury that is consistent with the information provided by the worker to the WCB.

In finding that the worker is entitled to benefits beyond November 19, 2014 the panel notes that:

• the worker immediately advised her co-worker that she injured her back. The co-worker noted that the worker was "hurting" and did not do what she normally does. The co-worker confirmed that the worker modified her duties on the day of the injury and the day following.
• the worker also notified her supervisor that she injured her back on the day of the accident.
• the treating chiropractor provided a diagnosis of lumbosacral sprain/strain which is consistent with the mechanism of injury reported by the worker.
• the worker provided a consistent description of the accident to the WCB and to her treating medical professionals.
• the worker is a physically active person and, initially, attempted to self-treat and self-medicate her injury which resulted in a small delay in seeking medical attention.
• the worker also attempted to modify her duties so she could continue to work.

The WCB already found that the worker was injured at work on November 18, 2014; however, it found an intervening non-work related injury occurred when the worker put on a sock on November 20th. The panel finds, on a balance of probabilities, the task of putting on her sock was not sufficient to cause the worker's injury. Rather the panel finds that it likely exacerbated the worker's already injured back.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of January, 2016