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 March 2, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for an injury to her lower back which she related to an accident occurring at work on July 9, 2015. The worker stated that she was carrying a cardboard box containing waste products, and as she was walking to the door, the bottom of the box gave out and a bag containing the waste products spilled out. As this happened, her body reacted and she tried to catch the box and its contents. Since then, she had been having severe low back and hip pain. The following day, she attended a hospital emergency facility, because she had fainted that morning from the pain and struck her head, causing a concussion and facial bruising.

Following receipt and review of medical information which included hospital, physician and physiotherapy reports, the worker's claim for compensation was accepted for a sprain/strain type injury, and benefits and services were paid.

On November 9, 2015, the worker advised the WCB that the location of her back pain had changed as of 2 weeks earlier. The worker reported a burning and sharp pain that travelled down the back of her leg to her foot on the left side. The worker said the treating physiotherapist told her that she could have an issue with a disc at L5 or her vertebrae were rubbing against each other. A report from the treating physiotherapist noted that the worker was seen on November 6, 2015 for increased burning pain in her back and down the leg with occasional sharp pains. The diagnosis outlined was acute left SI sprain with some left L5-S1 facet findings.

On November 2 and 12, 2015, the worker attended hospital emergency facilities with respect to back complaints. The diagnoses outlined were low back pain - sciatica, and back pain.

An MRI report of the lumbar spine dated November 13, 2015 showed no significant abnormality.

When seen by her family physician on November 23 and December 8, 2015, the worker complained of low back pain referred to left lower limbs.

A doctor first report dated December 9, 2015 diagnosed the worker with piriformis and left SI pain, some myofascial pain.

On December 30, 2015, the worker was examined by a sports medicine consultant at the WCB offices. The consultant opined that the current diagnosis was nonspecific lumbar pain. The consultant stated that after review of the November 2015 lumbar spine report, there did not appear to be an anatomic explanation for positive ankle clonus and Hoffmann tests which had been noted. The consultant was unable to establish a probable relationship between the worker's current presentation and the workplace injury. The accepted diagnosis was a sprain/strain type injury and the natural history for improvement was 4 to 6 weeks.

In a decision dated January 22, 2016, the WCB advised the worker that following a complete review of her claim, including the December 30 findings of the WCB medical consultant, further wage loss and medical aid entitlement would not be authorized beyond September 27, 2015, as it was felt that her ongoing medical status could not be accounted for in relation to the July 9, 2015 compensable injury.

On February 22, 2016, the worker appealed the January 22, 2016 decision to Review Office. The worker indicated that all of her attending doctors and physiotherapist concurred that her lower back pain was related to an SI joint injury caused by the July 9, 2015 work injury. On February 26, 2016, Review Office advised the worker that it was premature to rule on her appeal and the file was being returned to Compensation Services to complete a further investigation and review of the decision.

On March 10, 2016, the WCB advised the worker that following a review of her claim, it was determined that her current back difficulties were not related to the July 9, 2015 work incident, and her claim was not acceptable. Considering all the evidence and information on file, there were too many inconsistencies to support that an injury arose out of the alleged incident on July 9, 2015. On May 31, 2016, the worker appealed the decision to Review Office. On July 12, 2016, Review Office found that the worker's claim was not acceptable. Review Office noted that the worker was at work and working her expected duties on July 9, 2015 and completed her work day. On July 10, the worker's day off, she attended a hospital emergency facility with complaints of abdominal pain causing a fainting spell, resulting in her striking her head and causing right shoulder pain. A contusion was noted on the worker's forehead and she was diagnosed with syncope.

Review Office noted that the worker returned to her normal duties on July 13, 2015. Twenty days later, she attended a physiotherapist, who noted visible injuries to the worker's low back not in keeping with a strain injury as described by the worker.

Review Office found that the reasons for the worker's attendance at the hospital facility on July 10, 2015 were not consistent with a low back injury occurring the previous day, and that the injuries found on the worker's low back 20 days after the reported accident were also inconsistent with the worker's reports of a low back injury in relation to her work. Review Office stated that it was unable to relate the health problems for which the worker sought attention following her shift on July 9, 2015 to any incident arising out of and in the course of her employment that day.

On September 6, 2016, a worker advisor provided new evidence to Review Office. The worker advisor submitted that the evidence confirmed that the worker's SI low back injury arose out of and in the course of her employment on July 9, 2015, and that the claim for compensation ought to be accepted.

On October 31, 2016, Review Office stated that it was unable to determine from the new evidence that the worker experienced an injury arising out of and in the course of her employment on July 9, 2015.

Review Office concluded from the file evidence that the worker had a history of migraines and low back difficulties. After she last worked her full duties on July 9, 2015, the worker attended the hospital for an unrelated health concern and returned to her full duties on July 13, 2015. When the worker first spoke to the WCB 13 days after July 9, 2015, her headaches were more of a concern than her low back. The headaches or migraines were a pre-existing condition. Any worsening of this condition was only related to a fall at home, which was not accepted in relation to, or secondary to, any incident at work.

The first medical documentation of a low back issue came 20 days after the incident at work. When she attended her physiotherapist, a visible soft tissue injury to the worker's lower back was noted. Review Office felt that this was unrelated to the incident 3 weeks earlier. The worker's worsening condition was not explained by the reported mechanism of injury and/or the history of symptoms as reported.

Review Office concluded that the evidence did not support that the worker experienced an acute injury on July 9, 2015, and found that her low back complaints were not related to an incident where the bottom of a box she was carrying fell out, spilling its contents.

On November 3, 2016, 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and (c) an occupational disease,

and as a result of which a worker is injured.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker's position was that the evidence supported that she experienced a low back injury on July 9, 2015 as a result of a workplace accident, and her claim should be accepted.

It was submitted that the worker reported her injury to the employer by email that same day. The email not only confirmed that an accident occurred, but also described the mechanism of injury and confirmed that the accident resulted in the worker experiencing severe lower back and hip pain. The Employer Report confirmed that the accident was reported on July 9. A witness statement from a co-worker confirmed that the co-worker heard a noise on July 9, saw the waste product on the floor, helped pick it up, and noticed that the worker was holding her back after the incident.

The worker advisor submitted that there was a consistency in terms of reporting. The evidence supported that the same mechanism of injury was reported to the employer, the WCB and attending health care providers. A text message from the worker's father to the employer on July 10, 2015 supported that back issues were the main reason the worker attended the hospital facility that day. The first medical report was from the physiotherapist, dated July 29, 2015. It confirmed the reporting of the accident and a low back injury at work, the mechanism of injury and the worker having fainted the next day and hit her head. The report provided objective examination findings and a diagnosis which fit with the mechanism of injury and confirmed a left-sided back injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to succeed, 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. For the reasons that follow, the panel is able to make that finding.

In response to questioning from the worker advisor and the panel, the worker described what happened on July 9. She said that the box she was carrying weighed about 50 pounds. When it fell, she reacted immediately, reaching forward and jerking and twisting her body to the left, in an effort to catch the box and its contents. The panel finds, on a balance of probabilities, that sufficient torsion forces were involved in the awkward twisting motion which the worker described to cause a lower back injury.

The worker said that the accident happened around noon, which was about half way through her shift. Some of the products fell out of the bag they were in, and a co-worker came and helped pick them up. Another worker then came and took the box out, as she could not do it. The worker continued to work the rest of her shift that day, but adjusted her duties so that she spent more time sitting and working on the computer. She sent an email to her employer at 4:35 that afternoon, in which she advised of the incident, stating in part:

The box was not sealed on the bottom and I guess it weighed to (sic) much so when I lifted the box up and walked to the door the bottom of the box gave out and the [product] fell out. As this was happening my body reacted to the stuff falling and tried to catch it I think and from then on I have been having severe lower back and hip pain.

The worker said she went home after work and relaxed. She took pain relief medication and kept icing her back during the evening. The worker was scheduled to work the next morning. When she woke up, her back felt stiff and achy. As she got up and was going into the bathroom, she felt a severe pain in her lower back, lost consciousness and fell. She woke up on the bathroom floor. Her mother helped her get back to bed, and called a relative to help take her to the hospital. She also called the worker's father, who was himself in hospital, to let him know they were going to the hospital. Her father knew her boss, and the worker asked her father to let her boss know what was going on. A text message from the worker's father to her boss, sent Friday, July 10, 2015, at 9:45 a.m., is on file, and states in part:

I need to advise you on behalf of my daughter that she is at the [hospital] emergency regarding her back issues. She is unable to come to work for Friday. We will keep you informed when we learn more from the Dr's…

The panel notes that while the report which was subsequently filed by the employer indicated that the worker was on vacation on July 10, 2015, the worker confirmed in her evidence at the hearing that she was scheduled to work that day. She said that she is not entitled to sick days, only vacation days. She therefore asked that the missed time on July 10 be treated as vacation time, so that she would still be paid for the day.

The hospital report for July 10 did not mention anything about a workplace incident or lower back injury. In her evidence at the hearing, the worker said that she told the people at the hospital about the incident at work and described her symptoms. She stated that:

The first person I saw at the hospital, I said I was hurt at work yesterday, which is why I feel I'm having back pain, and then that's when I explained the situation from the morning. And then that's what we just kind of concentrated on from then on, was just the incident in the morning.

The panel notes that the worker's evidence in this regard is consistent with the text message which her father had sent that morning, based on what he had been told by the worker and her mother, where he indicated that the worker was going to the hospital because of her back issues.

The worker said that she spent most of the day on July 10 at the hospital. When she went home, she lay down and continued icing her back. She was supposed to work for a concurrent employer on Saturday and Sunday, but did not work those days. She went back to work on Monday, July 13, 2015. She said that she was still sore, but took extra painkillers and was able to manage the pain while working. She iced her back during lunchtime and would sometimes also have to do it during work. She had to take more breaks, to be off her feet, because being on her feet caused her a lot of pain. On July 16, 2015, she submitted her Worker Incident Report to the WCB.

The panel acknowledges that there are inconsistencies in the evidence, particularly with respect to the worker's attendance at the hospital facility on July 10, 2015. Based on our review all of the information before us, on file and at the hearing, the panel is nevertheless satisfied that there was a continuity of symptoms from the time of the accident up to and through the filing of the claim, the worker's first conversation with the WCB case manager on July 22, 2015, and her attendance with the physiotherapist on July 29, 2015.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained an acute low back injury by accident arising out of and in the course of her employment on July 9, 2015. The worker's claim is therefore acceptable.

The worker's appeal is allowed.

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 28th day of April, 2017