Decision #110/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on June 13, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On May 12, 2015, the worker filed a claim with the WCB for injury to his right low back and right hip area with the accident date of May 30, 2014. The worker described the incident as follows:
I was working underneath a building, hooking up water mains. I was twisting and turning and hunched over, carrying equipment. I started to have tingling in my left toes then I noticed numbness in my groin area and it shot up and then the left side went numb. I had pain in the right side in my hip. The right side was getting worse and then the left side started getting numb. We were under the building doing this work for a few days. I was in so much pain so I came home early. June 5 and 7, 2014 I went on EI disability claim and then welfare meeting and then WCB. I had a sore back ongoing from a prior injury. (I was told this is a different injury because it was sciatic.)
The Employer's Accident Report noted that the worker reported the May 30, 2014 injury on June 2, 2014 to his supervisor. The employer further added:
An old injury from 6 years prior was aggravated due to a poor mattress and continued bending. [Worker] was moved to a different task on the morning of June 2 with limited bending and newer/firmer mattress supplied the following day. [Worker] did not seek medical attention and said the new mattress and the physiotherapy he does daily to maintain his mobility helped.
On May 25, 2015, the worker spoke with a WCB adjudicator and answered questions related to the job site and the work he performed while connecting water pipe. The worker noted that his back had been sore prior to working at the jobsite. The worker said he told his foreman that the job was too much for him and that his left leg was numb. He completed an incident report with the help of a safety officer. He then switched jobs to working inside the units where he could stand up. The worker said he was uncertain if his symptoms gradually increased or if there was a specific incident when his symptoms worsened.
A Doctor's First Report dated June 10, 2014 reported that the worker had back pain, acute on chronic, from an incident 6 years ago when picking up a box. The worker recently experienced worsening back pain at work with the onset being 2.5 weeks ago.
On June 22, 2015, the worker advised the WCB adjudicator that his back was feeling good when he arrived at the job site. By the end of the week his back was very sore. When he left the work site there was no discussion of him coming back. The project manager told him that his back problems commenced prior to the job. The worker said his back problems are different.
On June 22, 2015, the WCB adjudicator spoke with the project manager who indicated that the worker requested to be laid off for medical reasons and that he would be claiming WCB with his prior employer. He stated the worker did not say he was hurt at the work site. The worker said he bought a special bed for his prior back difficulties and that the bed at the camp was causing him problems. He said the worker was an employee prior to going to the camp up north and worked at a job for 4-5 months performing his regular job duties. He never had any issues and was a good employee.
On July 10, 2015, the employer was advised that the worker's claim for compensation had been accepted and that wage loss benefits were approved effective June 6, 2014. The decision was based on the findings that the worker reported his injury in a timely manner and the diagnosis provided by the treating physician was consistent with the physical demands of his workplace duties, working in a hunched position and a bed mattress that was not supportive for his back.
On July 27, 2015, the employer appealed the WCB decision to accept the claim. The employer referred to the July 10, 2015 decision that "he injured his back" connecting pipes. The employer indicated that this was not factually correct as the worker claimed it was an aggravation of a previous injury, not a new one. At no time did the worker express a concern with his work activities, though he did express concern over the comfort of his mattress which was promptly replaced. The employer concluded that the original compensable injury that occurred six years ago was the source of the worker's discomfort and that his work activities were relatively benign and caused no injury, but aggravated the existing one.
In a decision dated August 28, 2015, Review Office accepted the employer's appeal and found that the worker's claim was not acceptable.
To determine whether the worker's low back complaints after May 2014 met the definition of an accident, Review Office stated that it referred to the information on the worker's prior 2012 claim and the April 15, 2015 Appeal Commission hearing transcript which detailed and included the worker's description on how his low back symptoms became worse following May 2014. Review Office noted that the version of events in the transcript varied significantly from the accident description the worker provided when he initiated his claim.
Review Office noted that the worker did not report a workplace accident to his employer at the time of his increasing symptoms. The worker told his supervisor he had longstanding low back issues that waxed and waned throughout the past six years. The worker reported to his supervisor that his low back issues were longstanding and he could work as long as he was careful with his lifting and other duties and did his regular exercises.
Review Office commented that the worker's new symptoms do not correlate with his description of duties and responsibilities in May 2014. The slowly increasing symptoms in the worker's left leg pre-existed his work for the employer in May 2014 and was not in keeping with any causal factors or hazards of his job during the same time. On January 27, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and the 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 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.
The worker is appealing the WCB Review Office decision that his claim is not acceptable. The key issue to be determined by the panel deals with whether the worker suffered an injury by accident that arose out of and in the course of his employment in May 2014.
Worker's Position
The worker was self-represented. He was accompanied to the hearing by his father. The worker referred to a prior claim and appeal to the Appeal Commission. He advised that he initially thought that his injury had arisen from an earlier accident and not from his work with the accident employer at the remote worksite. He said:
I guess I believed before that, it was all from an old injury, but talking to doctors and physiotherapists, I learned that, I guess it was a different injury when I got the herniation in my disc.
The worker confirmed that his left leg began to bother him while he was working at the remote worksite. He said that his prior injury involved his right side.
Regarding his duties, the worker advised that he was working in a space with a low ceiling. He said the height varied above and below four feet. He said it was a dug out area with a sand and mud floor. He said that he worked in this area for about a week to two weeks. He said he complained and was moved.
Employer's Position
The employer was represented by its Safety Officer who was accompanied by another staff member and stated:
Our position is, [the worker] came to us. We knew he had a pre-existing injury. He had told us that he had problems and he had to do physio and stretches and so on. So he had worked for us for quite a while.
Then we went up to the camp and one morning he woke up and said his back was bothering him. So we suggested to go to the doctor and see, get it checked out. And he reiterated that it’s a pre-existing injury and we got him a new mattress at the time.
The Safety Officer advised that the employer asked the worker to go to the doctor and have it checked out, but the worker advised that he couldn’t work at the remote worksite any longer. The worker then left the worksite.
The Safety Officer advised that there was no indication that an incident took place onsite, other than a pre-existing injury, and that his back was starting to bother him due to the mattress that he was sleeping on. He said they have no other information regarding an accident.
In answer to a question, the Safety Officer acknowledged that the worker was working on water lines in a space with four foot ceilings.
The Safety Officer also acknowledged that at the beginning, the worker had no complaints and there were no problems with performance in his full duties. He advised that the worker later started to complain that his back was sore.
The employer expressed concern that the claim was identified 13 months after the injury date.
Analysis
The worker is appealing the WCB decision that his claim for a workplace injury is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker's left sided injury arose out of and in the course of his employment. The panel was able to make this finding.
The panel attaches weight to the following evidence in support of this decision:
the worker acknowledged that he suffers from chronic right sided back pain, but was able to work for the employer at a different site prior to working at the remote worksite in May 2014
the worker worked at the remote worksite which involved pipe assembly in a crawl space about 4 feet in height. The worker said the height varied and the ground was uneven.
after approximately a week at the remote worksite, working in a compromised position, the worker developed left-sided symptoms, commencing with numbness in his left foot and up his left leg
the worker advised the employer that he was unable to continue working in the crawl space and was provided modified duties
the worker was unable to continue working and left the work site to obtain medical treatment from his family physician
the family physician's chart note on June 10, 2014 indicates, in part, that:
Onset 2.5 weeks ago, no specific injury, worsened back pain, radiates to both sides, L lower leg, doing PT everyday, numbness? tingling in L leg, constant before, now intermittent
the family physician's letter dated June 19, 2014 indicates, in part, that:
Most recently, mid to end of May 2014. There was no specific work injury or trauma, however, [worker] described a bilateral and midline lower back pain that was exacerbated during working hours. He stated that there is a new onset of numbness/tingling in his L leg that started mid to end of May 2014.
the treating physiotherapist's Physiotherapy Initial Assessment, dated June 11, 2014 indicates, in part, that "crawling underneath building as daily job for work progressively leg got worse…numbness down L leg to toes". The therapist's diagnosis was left sided radiculopathy.
The panel notes there was considerable confusion regarding whether a new incident occurred or the worker was suffering symptoms from a previous injury. The worker advised that he assumed it was from his pre-existing condition, until the physiotherapist and other physicians advised that he sustained a new injury. In the panel's view, it is clear that the worker developed new low back symptoms in the opposite (left) side of his back which was different from his previous right sided low back issues.
Regarding the suggestion that the worker did not perform any duties at the new location, the employer confirmed that the worker was able to work and performed the assigned full duties but was eventually moved to modified duties after a number of days. The employer acknowledged that the duties involve working in awkward positions. The panel finds that the nature of the worker's job duties and the awkward position provide a mechanism of injury consistent with the worker's left low back conditions.
The panel finds, on a balance of probabilities that the claim for a left-sided low back injury is accepted.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of July, 2016