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 May 19, 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

On June 23, 2015, the worker filed a claim with the WCB for her low back with the date of accident being May 11, 2015. The worker stated:

I've had issues with my back for a while built up over time. I've had issues in the past approximately 2 years…When it builds up I go to the chiropractor and for massage and I'm back to work in 3 days, or a week or 3 weeks and use my sick time. This time it's not getting better.

The worker described the job duties she performed which she believed were the cause of her injury. They included sweeping with a 3 foot mop, lifting and emptying garbage, sweeping and washing floors, washing walls and toilets, lots of bending, reaching, lifting, pushing and pulling, moving furniture, scrubbing with machines and by hand, recoating floors with wax, and twisting from side to side.

The Employer's Accident Report dated June 25, 2015 stated:

In conversation [the worker] complains to the head custodian of a sore back. On May 25^th the pain is now going into her hip area. On May 27th [the worker] goes to the doctor for the pain and he tells her to stay off work as the tasks she is doing is (sic) just aggravating her back and hip.

On June 29, 2015, the worker spoke with a WCB adjudicator regarding her claim. The worker related her right low back, left hip and left leg difficulties to the performance of her general work duties. The worker noted that she first experienced symptoms approximately two years ago at work and could not provide a specific cause. She denied a specific incident or accident at work to account for the onset of her symptoms. She denied an increase or change in her work duties/work load to account for her symptoms. Approximately 10 years ago, the worker said she changed from a full time employee to a part time employee of 4 hours per day.

The worker indicated that about two years ago (school year 2013-2014) she felt a bit of a pull across her lower back at work when lifting a garbage can and turning to dump it. The worker said she has not been pain free for two years.

The WCB adjudicator also spoke with the worker's supervisor on June 29, 2015. He had been with the employer for over 12 years. During this time, the worker made generalized complaints of low back pain, etc. and did not report a workplace injury or miss time from work. He confirmed that the worker's job duties were physically demanding. On May 11, 2015, the worker mentioned that her back was really sore, it had been sore for some time and was getting worse. She did not report a specific work place accident but related her back pain to her work duties in general.

On May 27, 2015, the treating chiropractor reported that the worker's low back difficulties were related to her work duties which included lifting of garbage cans and twisting. The worker was diagnosed with left sacroiliac joint sprain, thoracic lumbar sprain and left disc irritation at L5-S1.

Regarding the worker's past medical history, the treating chiropractor advised the WCB on July 6, 2015, that the worker's personal medical history was unremarkable with the exception of musculoskeletal conditions involving previous arm, elbow and low back pain. The worker had right and left arm injuries from work for the month of May in 2012 and 2014. The low back pain occurred from a work injury in the month of October 2013.

In a decision dated July 23, 2015, the worker was advised that her claim for compensation had been denied as a relationship between the development of her symptoms and an accident had not been established. The worker was advised that the WCB was unable to confirm an accident at work in 2013 to account for the onset of her low back difficulties. Given these factors and the delay in reporting to her employer and the delay between the onset of her symptoms and medical treatment, her claim was disallowed.

On September 10, 2015, the Worker Advisor Office wrote to Compensation Services requesting reconsideration of the July 23, 2015 decision. The worker advisor indicated that the focus of the adjudicator's consideration should not be on the past 2013 incident but on the worker's and employer's accident reports for an injury occurring in May 2015, which took the worker off work as of May 27, 2015. It was submitted that the 2015 claim was acceptable because the information established a relationship between the worker's low back difficulties and her employment duties in May 2015. Further, there was no delay in reporting to the employer or in seeking medical treatment as it related to the May 2015 left-sided lower back injury. Included with the submission was a statement from a co-worker who stated:

On May 26, 2015, at the end of her work day, [the worker] informed me that she had hurt her back and hip while emptying her large garbage can. She also mentioned that she would probably be missing a couple days of work. I remember this vividly due to the fact that she was walking with a very obvious limp.

In a response to the worker advisor dated October 1, 2015, Compensation Services advised that the new information had been considered and it was determined that a relationship between the development of the worker's low back difficulties and a workplace accident had not been established given there was no confirmed specific workplace incident preceding the onset of the worker's symptoms in May 2015 and the absence of a significant change or increase in her work duties. On November 4, 2015, the worker advisor appealed the decision to Review Office.

In a decision dated November 20, 2015, Review Office confirmed that the worker's claim was not acceptable. Review Office concluded that the evidence did not show a cause and effect relationship between the worker's general work duties and her most recent occurrence of low back pain. On December 18, 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.

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 state 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.

Worker's Position:

The worker was represented at the hearing by a worker advisor. It was submitted that the worker suffered an injury in May 2015 while working as a school caretaker. The worker stated that her back had been worsening over a period of time from her performance of her job duties, and that she suffered an acute injury while lifting and emptying a garbage can near the end of her shift on May 25, 2015. This led to her reporting the next day to her employer and to a co-worker that she would be going off work on May 27, 2015. The worker advisor submitted that the worker's supervisor was familiar with the difficulties the worker had been having with her job duties, and that the demands of the job duties were consistent with the medical conditions identified by the worker's chiropractor when she was examined on May 27, being a left sacroiliac join sprain, a thoracolumbar sprain, and a left disc irritation at L5-S1.

In response to questions from the panel, the worker indicated that she was off work for almost six months starting on May 27 until she began a graduated return to work with her employer on November 17. Her first full week of regular duties (at her pre-accident level of 4 hours/day, five days a week) started on March 21, 2016, with a restriction placed by her chiropractor of no lifting/pushing/pulling over 20 lb. She has been working at her pre-accident hours since that date.

When asked about the reasons for the restrictions, the worker indicated that the chiropractor set those restrictions so that she did not hurt herself again. Her back is "good" right now, so she does not know if they were needed, as she hasn't tried to do more.

The worker advised that her chiropractor was her primary healthcare provider for her back condition. She saw him twice per week for at least three months, and then on a reducing schedule. He provided manipulations and TENS treatment. He did order an x-ray of her back which she indicated was "clear."

The worker also provided details regarding her job duties in response to questions from the panel. She indicated that her job duties primarily involved vacuuming area rugs in classrooms, dry and wet mopping, some cleaning of washrooms and emptying 18 garbage cans. She noted that the garbage cans in the classrooms were the most difficult of her tasks. They were normally emptied by the full time day caretaker after lunch, so the garbage cans were for the most part lighter at the end of the day. However, it was not uncommon for her to be surprised by a heavier bag if the day caretaker was distracted by other job duties and didn't get to every garbage can. She indicated that one never knew if a teacher might have thrown a bunch of books into a particular garbage bag.

The worker advised that she had lifted a heavy bag on May 25 which really hurt her and led to her finally leaving work, but this had been a problem in the previous years as well. Her boss knew her back was sore over the previous weeks and was checking with her regularly. She advised him the next day that her back was a lot worse. The worker demonstrated the body mechanics of emptying the garbage bags, leaning down and to the right to pick up the bags and raising the bags up well above waist height in order to deposit them into a rolling bin that was directly in front of her. As to the possible impact of her other job duties in possibly hurting her low back, the worker advised that they "didn't improve" her back.

Regarding changes in her work duties in May 2015, the worker suggested that the students are tracking in mud that month which might require more cleaning, and that arts and crafts activities at that time of year might change the weight of a garbage bag.

The worker concluded that her work is very physical, very demanding and repetitive. She had ongoing problems arising from her work duties for over two years, as confirmed by her chiropractor. She indicated that the May 25 incident was the final straw, which on a balance of probabilities caused her injury. In response to a question as to why she hadn't reported a workplace accident earlier, the worker stated that she was lacking in knowledge on what an accident was and on how to document the issues she was facing.

Employer's Position:

The employer did not participate in the appeal.

Analysis:

For the worker to succeed in her appeal, the panel would have to find that the worker suffered an injury that arose out of and in the course her employment as a school caretaker. In particular, given the facts of this appeal, the panel would have to find that the worker's low back condition was related either to an overuse injury that developed over a period of time or to an acute injury in May 2015. The panel was unable to make any of these findings.

As noted in the worker's submission, the worker provided considerable evidence at the hearing regarding specific incidents that occurred in May 2015 and the nature of her back condition in the months and years prior. The panel notes that this evidence was substantially different than the information that had been placed on the claim file earlier in a number of key areas, which will be apparent throughout our analysis. While this may be a normal part of the hearing process, the significant volume of the discrepancies has led the panel to conclude that the worker is a poor historian (in the sense of not having an accurate memory), and accordingly, the panel has generally placed greater weight on file information that was closer in time to the events rather than the evidence provided at the hearing.

Dealing first with whether the worker suffered an acute injury on May 25, the worker's evidence at the hearing was that she had lifted a specific garbage bag near the end of her shift which caused her severe pain. It led to her telling her co-worker and her boss about it the next day. The worker was very clear at the hearing as to the details of this injury. The panel notes, however:

• The Worker's Incident Report of June 23, 2015, one month later, is silent as to a specific incident. Rather, it indicates that "I've had issues with my back for a while built up over time. I've had issues in the past approx. 2 years…When it builds up I go the Chiropractor & for massage & I'm back to work in 3 days or a week or 3 weeks and use my sick time. This time it's not betting better. See no-specific questions." That later section simply describes the worker's general job duties.

• The worker's first interview with WCB adjudicator on June 29 is also silent as to a specific incident, variously noting the following:

• "She relates her right lower back, left hip and left leg difficulties to her performance of her general work duties. Her symptoms were first experienced approximately 2 years ago at work. She could not provide a specific cause. She denies a specific incident or accident at work to account for the onset of her symptoms. She also denies an increase or change in her work duties/work load to account for her symptoms."

• "She empties the garbage in each room [bathroom and class rooms] as well. The garbage bins are not large however she states they are made of fiberglass and she finds them a bit heavy. She lifts the bins with both hands and empties the contents into a larger bin…."

• The head custodian was interviewed by the WCB adjudicator on June 29, 2015. He noted that the worker had made generalized complaints of lower back pain, but hadn’t previously reported a workplace injury or missed time from work. On May 11, 2015, the worker first mentioned her back was really sore and had been sore for some time but was now getting worse. "She did not report a specific workplace incident but she did relate her difficulties to her work duties in general." He checked with her daily and she indicated her back was getting steadily worse.

• On May 22, an employer's accident report was filled out with the supervisor; she had gone to her chiropractor and now had pain in her hip and leg. This was three days before the asserted May 25 lifting injury.

• The panel notes that the supervisor did not at any point refer to a specific event on May 25, but rather to a gradual buildup of pain and discomfort in the weeks prior to the worker's departure after May 26.

• The worker was asked at the hearing why this specific incident or any of the previous incidents were not discussed with the WCB earlier, or at the very least in the Worker Incident Report of June 23 or when she first spoke with WCB. She indicated she was lacking in knowledge as to what an accident or incident was. The panel places little weight on this assertion, noting that the worker has had two prior claims with WCB involving time loss and therefore is familiar with injury reporting processes. As well, the worker did describe an awkward lift in 2013, strongly suggesting to the panel that a lift with severe pain just one month before her June 23 report and later interview would have been referenced by the worker if it had happened.

Based on this analysis, the panel finds, on a balance of probabilities, that the worker did not suffer an acute injury to her low back on May 25, 2015.

As to whether the worker suffered an overuse injury from general work duties either in 2015 or in the period from 2013-15, the panel notes that the worker has a well-established history of back complaints throughout that period. This is confirmed in her Worker Incident Report, her June 29 interview with the WCB, as well as by her supervisor and her chiropractor.

The panel finds that while the worker did have ongoing low back difficulties, they were not caused or aggravated by the worker's general job duties. In reaching this conclusion, the panel has assessed the worker's job duties, the medical information on the file, and, again, the early documentation on file:

• At the hearing, the worker's evidence was that she would hurt herself at work, then manage the pain until it went away. She would get treatments and use sick days until it got better, then would hurt herself and the process would start over again.

• The panel notes, however, that the worker's history of multiple injuries at work with healing and sick day time loss cycles is not supported by the early evidence on the file where she describes only a "buildup" over time or pain like a "dull toothache," rather than specific incidents. These conditions were not reported to either her supervisor or to her treating chiropractor. In fact, there was only one incident described (in the June 29 interview) of a bit of a pull in her back about two years ago while lifting a garbage can and turning to dump it. She thought nothing much of it. It bothered her for a few days and then it felt much better. It wasn't reported to her employer and she didn’t miss time from work.

• As to whether the worker's general job duties led to her low back difficulties, the panel notes that the worker has attributed her longstanding problems to her emptying garbage cans. At the hearing, the worker's evidence was that the cans were, for the most part, emptied by the day janitor after lunch. This is consistent with the worker's June 29, 2015 interview, where she simply described the garbage cans as being a bit heavy. However, the first evidence of the worker being hurt by random "surprise" heavy garbage bags was at the hearing, almost one year later. The panel notes the worker could not identify specific incidents at the outset of her claim but rather pain like a dull toothache increasing over time. The panel places greater weight on the worker's earlier evidence.

• The panel further notes that the worker had previously adjusted other elements of her job (replacing dry and wet mops with smaller mop heads) because of her deteriorating back but did not complain of or make or seek any changes in the garbage duties that she had been performing. At the hearing, the worker could not identify any other job duties that caused or aggravated her low back condition.

• After careful consideration of the worker's job duties, the panel finds that the worker had a "busy" job but not a "hard" job in terms of impact on the worker's low back, and that her job duties do not correlate with the medical diagnoses attributed to the worker. We note from the limited medical information on the file that the worker's chiropractor provided a diagnosis of a left sacroiliac joint sprain and a thoracolumbar sprain, with his tests pointing to spinal facet pain, and positive straight leg raise, suggesting findings of sciatica. There is also a two year history of back pain requiring treatment. In the panel's view, given our findings regarding the worker's job duties, the worker was symptomatic at work, but not from her work. This would not meet the Act's definition of an accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's low back difficulties are not related to or caused by her workplace duties. Therefore the claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 16th day of June, 2016