Decision #72/17 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim for compensation was acceptable. A hearing was held on May 4, 2017 to consider the employer's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
The worker filed a claim with the WCB for lower back spasms that occurred on June 1, 2016. The worker reported: "I drove the van from the work site to the hotel that we were staying at. When I got out of the van my back was feeling tight. I went to my room to grab my wallet and car keys and went to the elevator to go back down stairs and my back started to spasm. I was in a lot of pain. When I got to the grocery store I bought some icy hot patches and some Ibuprofen. I went to the…Hospital…the next day." The worker said he did not report the incident to his supervisor until June 2, 2016, as he thought his back condition would get better.
The Employer's Accident Report filed on June 9, 2016, stated that they were protesting the acceptance of the claim as there was no connection between the worker's low back symptoms and a work hazard. The employer stated: "Employee reports that after his Jun 01/16 shift, he started feeling back spasms. Employee reports that he does not know what caused the back symptoms."
On June 13, 2016, the employer's WCB specialist noted that the worker's symptoms first appeared while he was at the hotel that evening. He was not in the course of his employment when his back symptoms arose. The worker had a regular work day on June 1, 2016 and there was nothing out of the ordinary with his job duties. There was no change or increase in his job tasks. When questioned, the worker reported that he did not know what caused his back symptoms. The employer's WCB specialist concluded that the WCB should disallow the claim as a link between the worker's back symptoms and work activities could not be established.
The claim file includes medical information regarding the worker's hospital visit on June 2, 2016 and lumbar spine x-ray report dated June 2, 2016.
On June 10, 2016, the WCB adjudicator spoke with a witness who advised that he and the worker drove to the job site together. The worker did not make any complaints during their shift, only when he got out of the van at the hotel. He said the worker was walking funny and slow. He held the door open for the worker as he looked like he was in discomfort. When asked, the worker told him that his back was sore. This was the first time the worker had any back issues.
On June 16, 2016, the worker's supervisor confirmed that part of the worker's job duties was to drive the crew from the hotel to the job site and then drive them back to the hotel after the shift. He and the worker had to unhook and pick up 6 chains the whole day. Unhooking the chains took one minute per chain. The supervisor confirmed that the worker was fine at the job briefing that morning.
On July 18, 2016, the worker advised a WCB adjudicator that part of his job duties was driving the crew from the hotel to the job site and back to the hotel. On June 10, he was working on trains which was not something he did every day. He was unloading rail from the train and using a lining bar to line it to the track. He stands to place the rail with the lining bar and it requires force. He also took chains off and carried chains. When taking chains off the rail, he is bent over and tries to bend at the knees. The work on June 1 was more physically demanding than on other jobs. His back was fine while he was at work that day. When he drove the van back to the hotel his back was fine. He grabbed his back pack, which is light and has a rain suit and his lunch in it. He carries it on his shoulder because one strap is broken. He jumped down from the van because there was no rail to step on. That is when he first noticed back stiffness. He did not think much of it until he started to spasm while at the elevator door.
On July 22, 2016, the employer was advised by the WCB that the worker's claim had been accepted, as a relationship had been established between the development of his low back difficulties on June 1, 2016 and his job duties. The adjudicator stated there was no indication that the worker had any back difficulties prior to work on June 1 and that exiting a vehicle can cause back discomfort. The worker was still in the course of his employment when using the company vehicle.
On August 19, 2016, the employer's WCB specialist appealed the decision to Review Office. The specialist stated: "Work was not the cause for back symptoms. Employee confirmed that he had no idea what caused the back spasms and they were pre-existing to the start of his work shift."
On December 9, 2016, Review Office confirmed that the worker's claim was acceptable. Review Office noted that the worker's job duties involved driving a truck, unhooking/picking up chains and using a line bar. The worker's employment also included lifting, carrying and bending. Review Office found the back difficulties reported by the worker would be related to the strenuous nature of the work he performed earlier in the day. It was also evident that the worker was in the course of his duties (exiting the van) at the time of the reported incident. This activity, according to Review Office, was the activity that arose out of and in the course of the worker's employment.
On January 13, 2017, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
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.
Under subsection 4(1) of the Act, 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.
Subsection 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
The worker did not participate in the appeal.
The employer's representative participated via teleconference. The employer's representative advised that the claim should be denied for the following reasons: the worker initially advised his manager that he was not attributing his symptoms to a work injury; the June 2 emergency report states that the pain happened at home, which could be interpreted as it's not on the worksite; and it was reported that the worker complained of back pain while standing at the hotel elevator. As a result, the employer took the position that the worker's employment was not a contributing factor in his symptoms.
The employer's representative stated "(the worker's) job was physically demanding, (employer) does not protest that fact. However, (the worker), then 21 years old, is accustomed to the duties and physically conditioned to the work."
The employer's representative also stated that "There is no report of a specific incident that occurred during the work day. He completed the duties without complaint or symptoms."
The employer's representative noted that the Review Office decision acknowledged that there were inconsistencies (in relation to the details of the accident). However, it stated that the file evidence does not support that (the worker's) injury was caused by activities outside of work. The employer's representative advised the panel that the employer disagrees with that position and stated "the onus should not be on the employer to prove that an outside activity caused (the worker's) back symptoms."
The worker has an accepted claim arising out of the June 1, 2016 workplace accident. The employer is appealing the WCB decision that the worker's claim of a back injury arising from a workplace incident is acceptable. For the employer's appeal to be successful, the panel must find that the worker's back injury was not caused by his workplace duties on June 1, 2016.
The panel is not able to make that finding. The panel finds, on a balance of probabilities, that the worker's back injury was a consequence of a workplace accident on June 1, 2016. In arriving at this decision, the panel has considered the submission of the employer's representative, the facts surrounding the incident and the medical information on file.
The worker's job duties on June 1, 2016 required him to work out of town and stay in a hotel between shifts.
The worker's incident report stated:
I drove the van from the work site to the hotel that we were staying at. When I got out of the van my back was feeling tight. I went to my room to grab my wallet and car keys and went to the elevator to go back down stairs and my back started to spasm. I was in a lot of pain. When I got to the grocery store I bought some icy hot patches and some ibuprofen. I went to…Hospital… the next day.
The worker was diagnosed with muscle strain at the hospital and missed two days of work as a result of the injury. Although the initial report stated that the symptoms occurred at home, the panel notes that further investigation by WCB confirmed that this was not the case.
The employer's representative did not dispute the information contained in the worker's incident report. The employer's representative did state at the hearing that she believed the employees (including the worker) were shuttled between the work site and hotel and that the worker was a passenger and not the driver of the vehicle. However, the worker reported that part of his job duties was driving the employer's van. This was also confirmed by the worker's Supervisor. The panel finds that the worker did drive the van to the hotel as part of his job duties.
The worker reported to WCB that on the date of the accident the crew he was assigned to was "working on trains." The worker advised WCB that this was part of his regular duties but was more physically demanding than other work he does. The worker does not perform these specific duties all the time. The particular duties on June 1 that the worker highlighted to WCB were "unloading rail from the train" and "using a lining bar to line it to the track." The worker also advised the WCB that "he stands to place the rail with the lining bar but it requires force." He also advised WCB that on that date he also "took off chains and carried chains."
The worker acknowledged in his reporting to WCB that when he drove the van back to the hotel on June 1 his back was fine. The worker advised that he first noticed his "back stiffness" when he jumped down from the van. The worker stated to WCB that there was no step rail on the van. The worker further advised that he did not think much of it until the symptoms worsened to spasming while he was at the elevator.
The panel accepts the worker's information as to the events that occurred on June 1, 2016 when the worker was exiting the employer's vehicle. The panel finds the injury that occurred while the employee was exiting an employer vehicle at the end of his shift was an "accident arising out of and in the course of employment."
In support of this decision the panel notes that the signs and symptoms of the injury manifested themselves shortly after the accident and also that the accepted diagnosis (a muscle strain resulting in a two day time loss) matches the job duties performed on the date of the accident. Further, two days' time loss is consistent with a muscle overuse/spasm type of injury.
The employer's appeal is denied.
Panel MembersM. 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 1st day of June, 2017