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 November 1, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 19, 2015, the worker filed a claim with the WCB for low back and left hip difficulties that she related to a work incident that occurred on May 1, 2015, and a similar incident about two weeks later.

The Employer's Accident Report stated that the worker reported the May 1, 2015 incident on June 6, 2015.

When speaking with a WCB adjudicator on June 22, 2015, the worker reported that when she was working the till at the beginning of May 2015, she reached over to pull product out of a customer's basket and felt a pop in her back. She could not recall the exact date. She decided to go home and self-medicate. She did not report the incident to anyone at work. She was working with a co-worker who might have seen her wince. Over the next few days, she still had pain but did not want to make a big deal out of it. The worker reported that a second incident happened sometime during the week of May 19 with the same customer and the exact same situation. She was working alone at the till when the second incident occurred. She indicated that she spoke with another co-worker on the day this incident occurred, but more or less just asked him if he knew of any stretches or anything that might help her back. The worker said she saw a massage therapist on June 2, 2015 who advised her that her SI joint was out of alignment.

On June 24, 2015, the employer advised that the worker and co-worker she had identified with respect to the original incident had overlapping shifts on May 2, 2015. The WCB spoke with the co-worker, who stated she was not aware of any injury having occurred on May 2, 2015. She said the worker did not say anything about her back bothering her up until about a week ago. She did not recall working the till with the worker on May 2, 2015. She said that when you are working the till, you are busy concentrating on customer service, and that she saw absolutely nothing.

In a decision dated June 24, 2015, the worker was advised that her compensation claim was disallowed, as the WCB was unable to confirm that a specific accident occurred at the beginning of May 2015, or again around May 19, 2015.

On July 31, 2015, the worker advised that she disagreed with the WCB's initial decision. She said she had no significant issues with her back prior to May 2, 2015. She was scheduled to work an eight hour shift on May 2, 2015, and spent seven of those hours on the till. This involved significant reaching and twisting while scanning. While she was standing on her tiptoes reaching to grab product, she felt a popping sensation in her lower back area. She did not think it was serious and managed to complete the balance of her shift. The worker advised that despite continued self-treatment, her symptoms gradually increased over the next several weeks. On May 24, 2015, she had a significant flare-up in pain after working the till for an extended period of time. As she realized that things were not going to get better on their own, she booked an appointment with a massage therapist for June 2, 2015. She officially reported the workplace injury to her employer on June 2, 2015. She continued to work up to June 6, 2015, then went on a pre-scheduled vacation. She first sought chiropractic treatment on June 26, 2015. The worker stated that she had never filed a claim before and thought she was doing the right thing by trying to work through the discomfort.

On August 11, 2015, the worker was advised that there was no change to the original decision denying her claim, as the WCB was unable to establish the necessary link between the worker's current diagnosis and an accident occurring at work.

On September 9, 2015, the worker's union representative noted that three accidents had been referred to on the worker's file and asked that Compensation Services reconsider their decision.

On November 3, 2015, the worker was advised that after considering all of the information on file, including the recent submission from the worker's union representative, Compensation Services was of the opinion that there was no new evidence to warrant a change in the original decision. The adjudicator noted that as part of his recent review, contact had been established with a co-worker. The co-worker confirmed that he was working with the worker on

May 24, 2015 but could not recall the worker mentioning any issues in relation to her lower back. The adjudicator advised that the WCB remained unable to establish the necessary link between the current diagnosis and an accident occurring at work on May 2 or May 24, 2015. With respect to a further incident having occurred at work on July 14, 2015, the adjudicator stated that it was difficult to establish a causal or aggravational relationship between the flare-up in symptoms which was reported to have occurred at work on July 14, 2015 and her employment activities in general without updated medical information.

On December 2, 2015, the Worker Advisor Office asked Review Office to reconsider the June 24, August 11 and November 3, 2015 decisions. The worker advisor noted that medical reports on file supported that the worker sought treatment for her low back and left hip in relation to the workplace accidents and that a consistent mechanism of injury was reported to all parties. There was no evidence to support that the worker's left hip difficulties arose out of any pre-existing conditions or as a result of any non-employment related incidents.

On February 15, 2016, the employer's representative submitted to Review Office that the worker's claim was not acceptable, as it could not be demonstrated that her back condition arose out of her employment as a retail clerk.

In a decision dated March 7, 2016, Review Office confirmed that the claim was not acceptable. Review Office noted that the worker reported that she injured her low back at the beginning of May 2015. She did not report an injury to the employer at that time. She continued to work her regular duties with no reported complaints. She did not seek relief of her symptoms (massage therapy) for almost five weeks. After sustaining further injury in mid-May 2015, she again delayed reporting this incident to her employer, and did not attend for massage treatment until June 2, 2015.

Review Office found the delays to be significant, and noted there was no evidence of a continuity in signs and symptoms to provide a causal relationship between the worker's low back difficulties diagnosed on June 26, 2015 as a sprain/strain injury and an accident arising out of and in the course of employment. On March 29, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the oral hearing, the appeal panel requested additional information from the worker and additional medical information from the worker's treating chiropractor. On December 6, 2016, the information received by the appeal panel was shared with the interested parties, for comment. On January 3, 2017, the panel met further to discuss the case and render its decision on the issue under appeal.

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) (the definition of "accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide 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 assisted by a worker advisor, and was accompanied by a family member who attended the hearing as an observer.  The worker advisor made a presentation on the worker's behalf, and the worker responded to questions from the advisor and the panel.

The worker's position was that there was sufficient evidence to support that the worker's left back and left hip difficulties were work-related and that the claim should be accepted.  It was submitted that the worker had provided a reasonable explanation for any delays that may have occurred in reporting and in seeking medical treatment.  Based on the consistency of the worker's reports to the employer, the WCB and the medical practitioners, and on the medical information which supported that there was a lower back and specific left hip injury which was related to a workplace incident, it was submitted that the injury and the diagnosis were consistent with the mechanism of injury and supported acceptance of the claim.

It was submitted that the worker's injury was further aggravated by an incident which occurred on July 14, 2015 and was immediately reported to the employer.  In response to questioning from the panel, the worker advisor stated that she was not looking at that incident as a separate incident, but as an aggravation of the original injury.

Employer's Position

The employer was represented by an advocate and a health and wellness consultant for the employer.  The employer's position was that the evidence failed to support a cause and effect relationship between the worker's medical problems and a workplace accident.  It was submitted that the pre-requisites of subsection 1(1) of the Act were not satisfied, and the claim was therefore not acceptable.

Analysis

The issue before the panel is claim acceptability.  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.  The panel is unable to make that finding, for the reasons that follow.

The panel finds that the early evidence is not consistent with and does not support a causal connection between the worker's low back and left hip difficulties and the performance of her job duties.  In arriving at this conclusion, the panel notes, among other things, that:

• The worker did not report having suffered a workplace injury to the employer until June 2, 2015 at the earliest, or file a WCB claim until June 19, 2015;
• The worker did not mention having suffered an injury to her co-workers in the weeks following the May 2015 incidents;
• The worker continued to perform her regular work duties following the May incidents, without any reported complaints or difficulties;
• The worker was also employed full-time with a concurrent employer, and continued to perform her regular duties with the concurrent employer;
• Both co-workers who were identified by the worker as potential witnesses to what occurred on May 2 and May 24 denied having any knowledge of the incidents or of the worker having suffered a workplace injury;
• The worker did not seek medical treatment at the time of or shortly after the incidents. 
• The worker first attended treatment from a massage therapist at least one month after the May 2, 2015 incident, and ten days after the May 24 incident; The worker was first treated by the chiropractor was on June 26, 2015, and did not consult her family physician until August 28, 2015.

Following the hearing, the panel requested further information from the treating chiropractor regarding his treatment of the worker's low back and left hip condition from May 1, 2015 onwards.  The information received confirmed that the chiropractor first saw the worker on June 26, 2015.  The panel accepts that the chiropractor made various findings and diagnosed the worker with "likely an acute lumbopelvic sprain/strain injury with the possibility of a left sided lumbar radiculopathy."  The panel is unable, however, to connect those findings and that diagnosis back to the workplace incidents between one and two months earlier.  The panel notes that the chiropractor's findings were based on the history provided by the worker, and there was a lack of clinical findings or evidence of ongoing functional limitations prior to the chiropractor visit which would connect the worker's June 26, 2015 condition back to the workplace incidents. 

In the circumstances, and based on the evidence before us, the panel is unable to establish that the third incident which the worker advisor referred to as having occurred on July 14, 2015, was a continuation or aggravation of, or resulted from, the workplace incidents on May 2 or May 24, 2015.

The panel also notes that the worker stated at the hearing that she was always able to go and text her mother on her breaks, and would have texted her on all of the dates she was injured.  In response to a question from the panel, the worker indicated that she did not know whether those text messages were still available.  Following the hearing, the panel wrote to the worker advisor requesting copies of the text messages between the worker and her mother in May 2015, but was advised that the worker was unable to provide the text messages as they were long gone and would probably have been gone by July 2015.  The panel notes that there was no previous reference on the file to any such text messages during the ongoing WCB investigation of claim acceptability.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's low back and left hip difficulties were not causally related to the performance of her work duties, and that the worker did not sustain an injury by accident arising out of and in the course of her employment.

The panel therefore finds that the claim is not acceptable.

The worker's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of February, 2017