The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that her claims for compensation were not acceptable. A hearing was held on August 29, 2017 to consider the worker's appeals.

Issue

Date of Accident: August 31, 2016

Whether or not the claim is acceptable; and

Date of Accident: September 2, 2016

Whether or not the claim is acceptable.

Decision

Date of Accident: August 31, 2016

That the claim is not acceptable; and

Date of Accident: September 2, 2016

That the claim is not acceptable.

Background

On September 6, 2016, the worker filed a claim with the WCB for a mid/lower back injury that occurred on September 2, 2016. The worker reported:

I was on my mid shift break and stepped forward to get something from the fridge and bent over into the fridge to reach a drink with my right hand off the middle shelf of the fridge and my back seized up on me. 

The worker advised that she reported the injury to the program team manager on the day of the accident, September 2, 2016

A Chiropractor's First Report dated September 2, 2016 stated that the "worker was bending forward to get a drink in the fridge and felt sharp pain in her right lower back." The diagnosis outlined was a lumbosacral sprain.

On September 8, 2016, the employer advised that they objected to the acceptance of the claim on the basis that it did not meet the definition of an injury under WCB policy, as the injury happened on an unpaid lunch break.

On September 8, 2016, a WCB adjudicator called the worker to advise that her claim was accepted for the incident that occurred on September 2, 2016. In a later telephone conversation that same day, the worker advised the adjudicator that she had a prior issue with her lower back from a workplace accident that occurred in February 2016 and that she had fully recovered by the end of June 2016. The worker advised that she went for regular maintenance treatment with her chiropractor for her lower back and hips once every 4 to 6 weeks.

Regarding any new accidents, the worker advised that on August 25, she had slipped on a wet floor and her leg went up and she caught herself on the counter/sink area. This occurred in "the dirty room." The worker advised that her back was a little sore, but it did not develop into anything serious and she completed her shift that day. The worker advised that "chiro thinks that she could have tweaked her back when her leg lifted up and it only just presented itself when she had bent over improperly not bending at the knees and this could be why she injured herself on Sep 2."

In a memo to file dated September 13, 2016, the WCB adjudicator noted that she called the worker to advise that she erred in accepting her claim for the September 2 accident as it occurred on an unpaid lunch break and there was no hazard present for which the employer would be responsible.

During the September 13 telephone conversation, the worker advised the adjudicator that she remembered another incident that occurred at work on August 31, 2016 when she was assisting a nurse with a two person assist. The worker advised that it completely slipped her mind when she was previously talking to the adjudicator as she was driving and on her Bluetooth. The worker said that after helping with the patient, she felt pain in her mid-lower back and buttocks area and she reported this to the charge nurse. The worker advised that she worked a full 12-hour shift on September 1, although her back was sore. The worker suggested that her back symptoms following the September 2 incident were related to the August 31 incident more so than the August 25 incident.

In a decision dated September 14, 2016, Compensation Services advised the worker that the WCB was unable to accept responsibility for her claim regarding mid-lower back difficulties. The adjudicator stated:

In the opinion of the WCB, an accident has not been established. In addition, you have two work related incidents that have occurred and no formal report has been given to your employer. I am unable to establish a link between the current diagnosis on file in relation to a work related cause on September 2, 2016. As such, the WCB is unable to accept any responsibility for this claim, including time loss and medical treatment.

On September 15, 2016, the worker filed a claim with the WCB for a middle/low back injury that occurred on August 31, 2016. The worker reported that she and another nurse were trying to assist a patient to stand up and the patient was not able to weight bear. During this time she injured her back. The worker advised that she did not seek medical treatment until September 2, 2016, as she did not think it was serious.

Via email correspondence dated September 20, 2016, the employer's Human Resources WCB Coordinator provided the WCB with detailed information as to what was reported by the worker regarding the August 25, 2016 incident (the injury date was actually August 18, 2016) and the August 31, 2016 incident when the worker said she tweaked her back while assisting a nurse to move a patient from a bed to a chair. The employer concluded its report by stating that the worker was aware that all injuries should be reported in a timely basis and that an incident tracker should have been filled out immediately. The worker was told by the charge nurse "to inform her if any action needs to be taken." The worker chose not to report on August 31, 2016. She completed her shift on August 31, 2016 with no other incidents. She worked an 11-hour shift on September 1, 2016 with no complaints. On September 2, 2016, the worker filed a WCB report due to time loss regarding her bending down to get her lunch out of the fridge which created her back discomfort. It was only once she found out that her claim was not compensable that she reported the other two incidents described in the report. The employer objected to the acceptance of this claim due to the delayed reporting of this information. There was no medical documentation regarding the August 31, 2016 incident. The worker only sought medical treatment after the incident on September 2, 2016. There was therefore no supporting medical tying the two incidents together.

In a decision dated September 28, 2016, Compensation Services advised the worker that the WCB was accepting her claim for the injury that occurred on August 31, 2016, but was disallowing any responsibility for wage loss benefits after September 2, 2016, as it had determined that there was no loss of earning capacity since the worker continued to work after the August 31 incident up until September 2 when she had the further incident. The worker was advised that the cost of chiropractic treatment was approved until October 26, 2016.

In a submission to Review Office dated January 5, 2016, a worker advisor stated they were appealing the decision made by Compensation Services that the injury on September 2, 2016 was not acceptable. The worker advisor noted that the worker could not straighten up after the September 2 incident and sought medical attention the same day. Although the worker was on an unpaid lunch break, the incident took place in a staff lunchroom on the employer's premises and within the employer's control. The worker advisor opined that the claim met the requirements of The Workers Compensation Act (the "Act"), as the injury occurred during the course of employment and bending forward was the thing that was done and the doing of which resulted in an injury.

The worker advisor also appealed the decision that the worker was not entitled to wage loss benefits after September 2, 2016. The worker advisor noted that the chiropractic report of August 31, 2016 showed that the worker was exhibiting low back symptoms following the August 31 lifting incident, and that the chiropractic report of September 2, 2016 showed a significant increase in low back symptoms following the September 2 incident, with no change in diagnosis. The worker advisor opined that the medical information supported that the worker exacerbated the August 31 compensable injury when she bent forward on September 2 and she should be compensated for time loss related to her increased symptoms.

On February 15, 2017, the employer's representative outlined the position that the August 31, 2016 incident was not reported to the employer until September 13, 2016, and that the worker had a history of prior claims so she was aware of reporting procedures. It was felt that the August 31, 2016 incident was not injurious, as the worker completed her 12-hour shift and worked another full 12-hour shift the next day, without complaint to the employer or to co-workers. The employer also disagreed with the worker advisor that the claim for injury on September 2, 2016 was acceptable, as there was no hazard of the facility. The worker simply opened the fridge, an activity of daily living, when her back seized. The employer did not believe that this act would result in a disabling injury.

On March 7, 2017, Review Office determined that neither of the worker's claims met the definition of an "accident" under subsection 1(1) of the Act, and that the worker did not experience a loss of earning capacity following August 31, 2016.

Regarding the incident that occurred on September 2, 2016, Review Office noted that the worker was at work; however, the accident was not the result of any hazard of the employer's facility and the worker was not performing any duties essential to her role as a health care aide. Therefore she was not "in the course of" her employment.

Review Office also determined that the evidence did not support that the worker injured her back on August 31, 2016, and confirmed that her claim was not accepted and she was not entitled to benefits. Review Office noted that the worker reported that she had several other injuries on the job (August 18 and 25) and that the worker did not report any of these injuries to her employer nor did she file a report of injury with the WCB. The worker reported the August 31, 2016 injury after learning that her claim from September 2, 2016 was not accepted. Review Office referred to the reports on file from the treating chiropractor and the worker regarding the worker's numerous unreported accidents and her treatment dates. Review Office found the evidence did not support that the worker sustained injuries prior to September 2, 2016.

Review Office noted the worker's evidence that she told a co-worker that she "tweaked her back" in the lift of the patient. Review Office said this statement was not proof of injury in and of itself, as the worker had noted she had chronic back aches and she continued to work two and a half days of full duties and hours.

On March 22, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's 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 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides general information on the interpretation of the phrase arising out of and in the course of employment and states, in part:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment - that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

WCB Policy 44.10.60.40, Accidents Occurring in Lunchrooms (the "Lunchroom Policy"), specifically addresses incidents or accidents in lunchrooms, and provides as follows:

When an employer provides a lunchroom, accidents occurring in it are considered to be compensable, provided the worker has not created his or her own hazard.

When a worker sustains an injury during a lunch hour, coffee break, or other similar period, that injury will be considered to have arisen out of and in the course of employment provided:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Worker's Position

The worker was self-represented, and was accompanied by a family member at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that both of her claims were valid claims for work-related injuries, and should be accepted. The worker submitted that she had a few incidents at work within a short period of time which created a domino effect. She emphasized that all of these incidents were reported to the charge nurse when they happened.

The worker submitted that the first incident was in mid-August, 2016, when she slipped on the wet floor at work. The worker noted that no claim was opened in respect of that incident.

The next incident was on August 31, when she and another nurse were trying to help a patient stand up. The worker said she noticed some pain in her back at the time. While she continued working until the end of the shift, her co-worker agreed to do the heavier issues that day and helped her by taking that part of her workload. She worked her full shift the next day, September 1, but her back was still giving her issues. She said that she has always been devoted to her job, and wanted to continue working all of her shifts if possible.

The final incident occurred the following day, September 2, when she was at work. The worker said that she bent over to grab a jug of milk off the shelf in the door of the fridge, when her back seized up. She said she was bent over, and had to get a co-worker to help her move to a sitting position. A nurse brought her an ice pack, which she put on her back. After lunch, she went back to her unit, and continued working her shift until she was able to get in to see her chiropractor later that afternoon. Her chiropractor said she should be off work to let her back heal. She was off work for a week and a half, then started back on a graduated return to work program and was back on full payroll, working full-time 12-hour shifts, by October 6 or 9.

The worker said that her chiropractor had indicated to her that with the job she does, the normal wear and tear, and all of the incidents happening so close together, with her back getting tweaked a little bit at a time, the September 2 incident in the lunchroom was like the straw that broke the camel's back.

Employer's Position

The employer was represented by an advocate. The advocate provided a submission in advance of the hearing and made a presentation to the panel.

The employer's position was that neither the August 31 nor the September 2, 2016 claim is acceptable.

With respect to the August 31, 2016 claim, the advocate submitted that reports from the worker and the treating chiropractor regarding the dates of injury and the treatments rendered were contradictory and unverifiable, and there were delays in reporting a number of the alleged incidents.

In terms of the September 2, 2016 claim, the advocate submitted that the claim was not compensable, as it did not meet the criteria under the Act or WCB policy. The worker's injury did not arise from any hazard of the facility. The worker opened the fridge, and leaned forward slightly at waist height when her back seized.

It was further submitted that the worker's injury on September 2 was not caused by a domino effect, as argued by the worker. The employer did not believe that the August 31 incident was injurious or caused the onset of the worker's back complaints on September 2. The advocate noted that the worker completed her 12-hour shift on August 31 and worked another 12-hour shift on September 1 without complaint to the employer. On September 2, she worked her duties until she leaned forward and her back seized. In the employer's view, there was no connection between these two incidents.

In conclusion, it was submitted that there was no clear work-related incident or injury to explain the worker's back complaints, and the appeal should be dismissed.

Analysis

There are two appeals before the panel on the issue of claim acceptability. In order for either of these appeals to succeed, the panel must find that the worker suffered an injury by accident arising out of and in the course of employment. The panel is unable to do so, for the reasons that follow.

Claim for Incident of August 31, 2016

Based on our review of all of the information before us, on file and at the hearing, the panel is satisfied that a minor incident occurred on August 31, 2016. The panel accepts that the worker may have tweaked her back at that time, but is unable to find that the worker suffered an "injury" under the Act as a result of that incident.

In arriving at this conclusion, the panel places weight on the fact that the worker was able to continue with her duties and worked the entire day. She did not seek medical aid for any injury. She did not think to call her doctor or make an appointment to see him. The panel notes that while there was some confusion on the file as to whether she was in fact seen by her chiropractor on August 31, the worker confirmed at the hearing that she did not.

The worker did not suffer any time loss as a result of the incident. The evidence was that she was able to go back to her full duties and worked her entire 12-hour shift the following day, September 1. Her evidence at the hearing was that there was nothing unusual that day. She said that she told her co-worker that her back was "in discomfort," but did not ask her co-worker to help her or do anything for her. She returned to work her full 12-hour shift on September 2, starting at 7:30 a.m., and there is no indication that she had any difficulty performing her duties up until the time of the lunchroom incident at approximately 1:00 that afternoon.

The evidence further indicates that the worker did not suffer a loss of range of motion. She stated at the hearing was that she was stiff or tight on September 1 and 2 when she woke up, but "was still able to bend forward and bend backwards, and move, hip to hip."

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her employment on August 31, 2016.

The worker's appeal on this issue is dismissed.

Claim for Incident of September 2, 2016

The incident on September 2, 2016 occurred while the worker was on her lunch break in the lunchroom at work.

The Lunchroom Policy states that when a worker sustains an injury during lunch hour, the injury will be considered to have arisen out of and in the course of employment provided that:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Both of the above criteria must be satisfied for such an injury to be considered compensable.

Based on our review of the evidence, the panel finds that the worker was making reasonable and proper use of the lunchroom facility on September 2. The first of these criteria has therefore been satisfied.

The panel is unable to find, however, that the second criteria, that the injury arises from a hazard of the facility and not a personal hazard, has been met. The worker's evidence was that she was leaning forward and taking milk out of the fridge for her lunch, when her back seized. The activity of taking one's lunch out of the fridge is normally something that a person does for themselves. The worker's evidence at the hearing was that this was a standard fridge and the container she was getting was in the door of the fridge, a little above waist height. The worker acknowledged that it was not the fridge itself which was the problem. Nothing was stuck, and she did not have to pull extra hard on the handle or anything like that.

Based on the evidence, the panel therefore finds that the injury did not arise from a hazard of the facility. As a result, the panel finds that the incident does not satisfy the requirements of the Policy or of subsections 1(1) and 4(1) of the Act, and the incident itself is not acceptable.

The worker has also argued that her claim is acceptable due to a domino effect. The worker submitted that her back was tweaked a little bit at a time by previous work-related incidents, in particular the incidents on August 18 and August 31, 2016, and the September 2, 2016 lunchroom incident was like the straw that broke the camel's back. The panel is unable to accept that argument.

Based on our review of the evidence, the panel finds that there is a lack of ongoing symptoms or continuity of symptoms leading up to the September 2 incident. With respect to the August 18, 2016 incident, the panel notes that no claim was filed in respect of that incident, and the worker was able to work her full shifts all the way through to August 31. August 18 was more than two weeks prior to the September 2 incident and a week and a half before the August 31 incident. With respect to the August 31 incident, as previously stated, the worker was able to complete her shift that day, and to continue performing her full duties on September 1 and September 2, up until the time of the lunchroom incident. In the circumstances, the panel is unable to find either a connection or a sufficient connection, on a balance of probabilities, between the August 2016 incident(s) and the September 2, 2016 incident.

Based on the foregoing, the panel finds that the worker did not suffer an injury by accident arising out of and in the course of employment on September 2, 2016.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 27th day of October, 2017