The Appeal CommissionThe Workers Compensation Act of Manitoba

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 February 16, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker, a self-employed flooring installer, filed a claim with the WCB for lower back pain that occurred on July 18, 2016.  The worker described the accident as follows:

I was on holidays and when I came back to work, I worked very hard patching on Monday, July 18th.  On Tuesday, it hurt a lot but by Wednesday, I couldn't go to work.  I had been patching for about 5 hours this day and was working on my knees.

On August 2 and 9, 2016, the worker spoke with a WCB adjudicator and provided more details regarding the job duties he performed on July 18, 2016.  The worker also described the symptoms he experienced on and after July 18, 2016 and the medical treatment he received.

Medical information on file consists of hospital, chiropractic and physiotherapy reports and CT scan results. 

On August 16, 2016, a WCB medical advisor reviewed the medical reports and stated:

• The most likely diagnosis to account for the worker's symptoms was nonspecific low back pain.
• Although there was a description of some left-sided radiation, the majority of the medical reporting made note of preserved range of motion, normal sensation, normal deep tendon reflexes, and normal strength.
• The changes indicated in the CT scan report were likely degenerative, pre-existing changes.

On August 17, 2016, the worker was advised that the WCB was not able to relate his current back difficulties to his job duties, and his claim for compensation was therefore not accepted.  On September 7, 2016, the worker appealed the decision to Review Office.

On September 27, 2016, Review Office determined that the claim was not acceptable as it was unable to find that the worker had an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act"). 

Review Office's decision was based on its review of the medical reports on file, the WCB medical opinion dated August 16, 2016, and the information provided by the worker that he was not able to identify a specific workplace event/incident having occurred on July 18 involving his back.

On November 1, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on February 16, 2017.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the treating physiotherapist.  A report from the physiotherapist dated March 3, 2017 was forwarded to the worker for comment.  On March 21, 2017, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, the 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 self-represented, and was accompanied at the hearing by his spouse, who assisted him in making a presentation to the panel. The worker provided a written submission in advance of the hearing.

The worker's position was that he suffered a workplace injury on July 18, 2016 which ought to be accepted. The worker said he spent 5 hours on his knees on July 18, patching and spreading a very thick layer of peanut butter-like patch on an old floor, which was particularly hard work. At the end of the day, he loaded his tools and heavy bags of garbage into his truck then drove to another location, where he unloaded the garbage into high bins. After that, he went home and spent the evening resting. His back was sore the following day, but he continued installing the flooring, as he wanted to finish the job. His back had become worse by the end of the day, and he had to take the next three days off work. He saw a physiotherapist for treatment on July 20 and 21, and spent the rest of that week resting his back. He went to the lake over the weekend, where he relaxed and continued resting his back.

The worker said that his back gets sore on and off from his job, and he does not run to the WCB every time it hurts. They had a number of very large jobs and a particularly heavy workload in March and June, 2016. His back had been sore, but he had dealt with it by going for physiotherapy and resting. July 18 was his first day back at work after 2 weeks of holidays. During his holidays, he had relaxed and done nothing which would have injured his back. The worker described his back pain on July 18 and 19 as being worse than at other times in March and June 2016, as he had to take time off work.

The worker said that on Monday morning, July 25, 2016, he loaded his tools into his truck and drove to the worksite. He got out of the truck, but was sore, and after walking around and looking at the job, he told his partner that his back was "killing him" and went home. The worker spent much of that day lying in bed, and his partner had to come at the end of the day and unload his tools from his truck and put them in the garage for him. The worker said that he reported the workplace incident on July 25, as this was when he felt the most pain in his back and knew he could not continue working even after having rested his back the previous week.

On Tuesday, July 26, as the worker was trying to get out of bed, he found that he could not walk. He said that kind of problem was different, and what felt different was that he could not walk. The worker described the pain he felt when he went to stand up as "extreme pain, like somebody shoved a knife in your back…real pain like I've never felt…just extreme pain in my lower back." His wife took him to the hospital, where they gave him pills and sent him home. Over the next few days he sought treatment from a second physiotherapist and a chiropractor. On July 31, he was in such severe pain, that they had to call an ambulance. He said the pain was in his lower back, legs and all over the place by then, and they had to scoop him up off the floor to put him in the ambulance and take him to the hospital. A CT scan was taken at the hospital.

The worker submitted that while the CT scan showed degenerative changes, it also showed a herniated disc which was not degenerative. In his view, it was clear that the degenerative changes had nothing to do with his inability to walk and the severe pain he experienced. The worker said he saw a neurosurgeon on October 12, 2016 who told him that the minor degenerative changes would not have resulted in his being unable to walk or work, but a herniated disc pushing on a nerve would have had that effect. The worker noted that he returned to work performing his regular duties on October 31, 2016, and "can do anything right now." He said that if his pain and difficulties were the result of degenerative changes, as the WCB had said, how was he even able to work then and why was he able to work now without any problem?

Analysis

The issue before the panel is whether or not the 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 his employment. For the reasons that follow, the panel finds that the worker sustained a short-term lower back injury in the course of his employment on July 18, 2016.

Information on file and at the hearing indicates that the worker had a prior history of back issues which would come and go and for which he would seek treatment.

The panel finds that the worker's lower back symptoms and pain increased significantly on July 18, 2016 as a result of the work he was performing. At the hearing, the worker described in some detail what he was doing that day. The worker indicated that the job that day was particularly hard, given the work that was involved and the age and condition of the floor. The panel finds that the nature of the work on July 18 and the positioning of the worker while he was performing that work are consistent with his having suffered a lower back injury.

While the worker continued working on July 19, the evidence shows that his pain became worse, and he was unable to work the rest of the week. He sought treatment from a physiotherapist on July 20 and 21. The worker's condition appears to have resolved fairly quickly with that treatment. The worker indicated that he was feeling better by the end of the week and went to the lake over the weekend. A subsequent hospital report, dated July 26, 2016, documented that the worker was "complaining of left low back pain - started last week after working hard carrying heavy materials. Went to physio - got much better. Was at lake over the weekend - doing okay."

The worker has submitted that the symptoms and difficulties which he experienced on July 25 and 26, and the herniated disc which was identified in the July 31 CT scan, were related to or "set off" by the work he had performed on July 18. The panel is unable to make that finding.

The panel notes that there was a significant gap in time between the reported date of accident (July 18) and the onset or first appearance of these additional symptoms (July 25 or later). The worker was unable to account for this gap in time. It is the panel's understanding that symptoms of a disc herniation would generally manifest themselves at the time of the injury or shortly thereafter.

The panel also notes that the symptoms which the worker described having experienced on July 18 and 19 and those he experienced on July 25 and 26 were very different. The worker described the pain on July 25, and particularly July 26, as being much more intense and debilitating, "like somebody shoved a knife in your back." The evidence showed that on July 18 and 19, the worker was able to continue working and to lift heavy bags. On July 25, he loaded his tools and equipment into his truck and drove to the jobsite, but was then unable to work. He had to ask someone else to come over later and unload his tools from the truck, and on July 26, he could barely walk. The narrative report which was provided by the treating physiotherapist following the hearing documented, with respect to the worker's attendance on July 20, that neurological tests were clear.

In conclusion, based on the evidence before us, the panel is unable to find that the worker's condition and difficulties on July 25, 2016 and thereafter, and the diagnosis of a disc herniation, are related to the worker's July 18, 2016 workplace injury. The panel does find, however, that the worker suffered a short-term low back injury by accident arising out of and in the course of his employment on July 18, 2016, which resulted in short-term time loss in the week of July 18, and resolved by the end of that week.  The claim is therefore acceptable, as indicated above. 

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 12th day of May, 2017