The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on February 18, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a middle back injury that occurred at work on May 7, 2015. The worker reported that she was moving garage door openers from a pallet to floor stock when her injury occurred. The openers had to be stacked 3 to 4 high. A Doctor First Report dated May 8, 2015 diagnosed the worker with non-specific back pain.

On May 27, 2015, the worker spoke with a WCB adjudicator and answered questions related to her regular job duties and the May 7 incident. The worker reported that around the end of her shift on May 7, there were 5 to 6 boxes of garage door openers on a pallet. She had to move these boxes from the pallet onto a floor display. The boxes were 3 to 4 feet long, and 1 foot wide by 1 foot high. The boxes were fairly heavy. She was stacking them 4 high, which was a bit higher than normal. The top of the stack was around her chest height. She was bending with her knees to lift the boxes with one hand on each end of the box. There were handles on the boxes and she would turn from left to right to place the boxes onto the floor display.

The worker indicated that she experienced no symptoms that night. She went home and watched TV. When she woke up the next morning, she coughed and felt a pop and then sharp pain in her back. The worker said she attended a walk-in clinic that same day. She was told that she had a back strain/muscle pull and was prescribed pain and anti-inflammatory medication.

In a decision letter dated May 29, 2015, the worker was advised that the WCB was unable to relate her lower back difficulties to a work-related injury on May 7, 2015, given the delay in experiencing any symptoms or back difficulties until the following day.

On August 12, 2015, the Worker Advisor Office appealed the decision to Review Office. The worker advisor noted that the claim was denied based on a one day delay in reporting and seeking medical attention. It was submitted that the worker reported to her employer and sought medical attention as soon as she experienced the onset of back symptoms. The worker did not participate in any other activity to cause the onset of her symptoms other than lifting the boxes. The worker advisor stated that the mechanism of injury matched the diagnosis. The weight of evidence therefore supported, on a balance of probabilities, that the worker's mid back symptoms arose from her employment on May 7, 2015 and her claim should be accepted.

In a submission to Review Office dated September 3, 2015, an advocate for the employer outlined the employer's position that the decision by the adjudicator was consistent with the evidence, WCB policy, and the merits of the case.

On September 24, 2015, Review Office confirmed that the claim was not acceptable. Review Office found that the worker's difficulties began after she coughed at home. It was therefore unable to account for her complaints as being related to the work she performed the day before. On October 5, 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 WCB's 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.

Worker's Position

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

The worker stated that her job basically involves helping customers. Any stock which is brought out on the floor also has to be put where it belongs. She was working the evening shift on May 7, 2015, and was the only one working in her department that night. The boxes of garage door openers had been brought out to the floor on a pallet, and she had to move them onto an existing display. The boxes weighed approximately 25 to 30 pounds each.

The worker described how she moved the boxes, making a point to bend her knees when picking each box up from the floor. She would lift the box, twist, then place the box on the display which was 1½ to 2 feet away. As the display was already 3 boxes high, she had to lift the boxes higher than usual and place them on top of the third layer of boxes. It took about 10 or 15 minutes to complete this job. She did not do any other physical activity before finishing her shift and going home.

The worker confirmed that she did not have any problems that evening. When she got home, she sat on the couch, had dinner, and watched TV until probably 11:30 or midnight, then went to bed.

The worker woke up the next morning at around 10:00. She said that she got up and felt a slight ache in her back. Then, as she was walking through to the kitchen, she coughed and felt a pop which, she said, "scared me to death and…also brought on the pain, which made me yell out really loud and cry…" She went to the walk-in clinic later that day. Between the time the pain started and the time she went to the walk-in clinic, the pain stayed the same. She could not lean forward or back or to either side, and had to walk "in a hunch."

The worker advisor submitted that the worker sought medical attention the same day and was diagnosed with thoracic muscle sprain. Referring to literature which she had provided in advance of the hearing, the worker advisor submitted that most thoracic sprains result from overstretched ligaments in the back and are caused by, among other things, heavy lifting and twisting motions, that pain can be exacerbated when taking a deep breath or coughing, and that there may be a delay in the onset of symptoms because inflammation, swelling and spasm take time to develop. The worker advisor submitted that the worker had very accurately described mechanics that would fit a thoracic-type of soft tissue injury, and that the evidence supported that her mid-back injury occurred as a result of moving the garage door openers.

Employer's Position

The employer was represented by an advocate, who participated in the hearing by teleconference.

The advocate referred the panel to the employer's submission of September 3, 2015 to Review Office. The employer's position, as set out in that submission, was that the evidence did not establish a causal relationship between the workplace activities and the worker's back complaints/injury. While it might be reasonable to determine that an onset of back pain could be related to lifting in the workplace, the timeline did not support this conclusion, given the absence of an immediate complaint and the reported immediate onset in response to the coughing episode.

The advocate noted that we had heard nothing different from the facts which were outlined in the submission to Review Office. It was obvious that the worker was engaged in an employment activity of lifting garage door openers on May 7. She did that for approximately 10 to 15 minutes. There was no onset of symptoms associated with that activity. She felt achy the next morning, coughed and experienced a sudden onset of symptoms. She sought medical attention. The advocate noted that the diagnosis was not thoracic strain, as indicated by the worker advisor, but non-specific back pain, which is substantially different.

It was submitted that the question was whether the onset of pain the next morning, which seems to have been associated with a cough, was the result of the worker's activities the day before. In the employer's view, the evidence simply does not support such a relationship. It is merely speculation, and is not enough to allow the claim.

Analysis

The issue on this appeal is whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment on May 7, 2015. In other words, the panel must find that the worker injured her back while performing her employment duties that day. The panel is unable to make that finding.

The panel carefully reviewed and considered the evidence regarding the worker's job duties and her activities on May 7 and 8, 2015.

The evidence shows that the worker was careful when she moved the boxes of garage door openers on May 7, and did not experience any difficulties at that time. She finished her shift, went home and relaxed after work, then went to bed. She did not experience any symptoms at work, or at any time during the evening or overnight.

The worker stated at the hearing that she felt a slight ache in her back when she got up the following morning. The panel notes that there is no contemporaneous evidence on the file of the worker having felt an ache in her back when she got up that morning and before she coughed. Further, or in any event, the panel is unable to find, on a balance of probabilities, that a minor ache the day after moving the boxes would have been sufficient to have resulted in the symptoms which the worker reported experiencing when she coughed.

The panel notes that the evidence is consistent throughout the file, and the worker confirmed at the hearing, that she coughed then felt a pop and a very sharp pain in the middle of her back. The worker stated at the hearing that she only coughed once and it was a slight cough. She also stated, however, that the pain which she experienced when she coughed was "very intense…close enough to labour pains" and scared her "to death." In response to a question from the panel, the worker agreed that there was a big change from how she felt when she was in bed to what happened when she coughed, and that it scared her very much. Based on the evidence, the panel finds, on a balance or probabilities, that it was this cough followed by the pop, and not the worker's job duties, which triggered the worker's symptoms and resulted in her need to seek medical attention.

In the result, the panel finds, on a balance of probabilities, that the worker's back injury was not causally related to the performance of her employment duties on May 7, 2015. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 14th day of April, 2016