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 2, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on October 8, 2015 for an injury to her low back and left breast/chest with the accident date of July 15, 2015. The worker stated:

The hose broke on the vacuum cleaner I use to clean the buildings. The manager made me use a small vacuum to clean instead, and I had to bend down to clean with it. I sent him a number of texts asking when the new vacuum was coming. I kept telling him my back was really bothering me.

The worker noted that she did not report the incident to the employer until July 20, 2015 because she wasn't having trouble right away, and that she delayed seeking medical treatment because she was managing with medications. The worker noted that her last day worked was October 5, 2015.

A letter from the employer (residential property manager) dated October 14, 2015 indicated that they were not aware of any injury as the worker stated in the two claims she filed. They were in receipt of a doctor's note stating that the worker was unable to work for two weeks and one day, but they were unaware as to the reason for the leave. The employer said the worker was no longer employed by them, and that the worker was asked "repeatedly to perform her janitorial duties; however, she failed to comply to our requests on numerous accounts."

On October 26, 2015, a WCB adjudicator contacted the worker to discuss her claim. The worker said her back was sore because she was using a small vacuum that she had to carry from floor to floor. She said the hose was not that long, about six feet, and she had to bend to use the vacuum; the power cord was not long either. The worker advised that the normal vacuum she used was like a back pack. It had a long cord that she only had to plug in once per floor. The hose broke on the regular vacuum on July 14, 2015 and then she started to use the smaller vacuum.

The worker advised that she told her manager at least ten times that her back was bothering her because of using the smaller vacuum cleaner. She said she called the residential property manager and left her a message regarding the issue with the vacuum in August 2015, but the property manager never called her back.

The worker noted that her manager had previously indicated that she was not doing her work duties to the expected standards in about the last month. She said the manager's girlfriend started to work there in the last month, and that everything was good until his girlfriend came into the picture.

Medical information on file showed that the worker attended for treatment in September, October and November 2015.

In a decision dated November 18, 2015, the worker was advised that her claim for compensation was not accepted based on the following rationale:

In the opinion of Compensation Services, an accident has not been established after a review of the evidence. The employer has indicated that you did not report an injury taking place in the work place. Although your medical provider indicates that you had mentioned the physical demands of your work and the use of a manual vacuum cleaner there is not any diagnosis consistent with a work place injury. The medical provider also indicates more back pain related to stress. Therefore we cannot identify activities within your work duties to establish a relationship between the development (sic) ongoing chest/back issues and a workplace accident.

On September 23, 2016, the worker appealed the adjudicator's decision to deny her claim. The worker provided additional medical information to support that her back and leg injuries were due to her job of vacuuming.

On November 8, 2016, Review Office confirmed that the worker's claim was not acceptable.

Review Office's decision was based on the findings that the worker delayed in reporting an injury and she did not seek immediate medical attention. It noted that the first report of back pain was in a visit to her doctor on October 5, 2015 and the worker was taken off work at that time for reasons unrelated to her back (stress and difficulties with employer/employee issues). Chart notes dated October 14, 2015 indicated that no injury had occurred. By November 4, 2015, the treating doctor had referred the worker for counselling to help her deal with her stress.

Review Office noted that the medical information included with the worker's appeal did not provide a clear picture as to the origins of her back pain, nor did it show that the worker's back pain was related to the workplace. The medical information indicated the worker suffered from several non-work related medical conditions which would prevent her from working at times. The worker also included information which documented employer/employee issues which ultimately resulted in the worker's employment being terminated.

Review Office stated that it was unable to identify an injury occurring in the workplace; that the medical evidence did not support the worker discontinuing work as a result of a back injury; and that the worker did not report a back injury or seek medical treatment in a timely fashion.

On December 8, 2016, the worker 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.

"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. The worker filed an extensive written submission in advance of the hearing, and made a presentation to the panel. The worker attended the hearing with her son, who also spoke on her behalf. The worker and her son responded to questions from the panel.

The worker's position was that she injured her back and legs as a result of her job duties, more specifically, her vacuuming duties, and her claim should be accepted and compensation paid.

The worker said that before she started working for the employer, she was always active and never had any problems with her back. She said that her pain started after the hose on the vacuum she was originally using broke and she was forced to use a different vacuum. The original vacuum was one she wore on her back; it stabilized her and was easy to use. The replacement was a canister vacuum which sat on the floor and had to be carried up and down stairs.

The worker said that her life changed after the hose on the original vacuum broke. She had a hard time carrying the replacement vacuum from floor to floor and from one building to another. She kept sending texts to the employer asking when the hose would be fixed, as her back was starting to bother her. She said that her whole back felt like it was on fire, and both of her legs would hurt. She indicated that she is a very clean person and takes pride in her work. She said that people had often complimented her on how clean their building was, but she started having a hard time cleaning, as her back was sore.

In response to questions from the panel, the worker described her work duties. She said that she cleaned nine apartment blocks each week. The buildings were close together, in a sort of "U" shape, and were three storeys high. She would clean two buildings each day, and three on Thursday. She would vacuum the hallways and stairways, starting at the top and working down. There were two stairways in each building, and most of the stairways were carpeted. Other duties included that she would sweep and mop the entrances to the buildings. Every Monday, she would clean all the windows and doors, and take out the garbage. As an extra job, she would clean vacant apartments after the tenants had left, to get them ready for the next tenants. She would have to clean everything in the apartments, not just vacuum them. She said that she would have to clean apartments just about every day, and it would be hard because they were dirty.

The worker estimated that the replacement vacuum weighed between five and six pounds. It was an upright canister type of vacuum, which had wheels and a handle at the top. She could wheel the vacuum along as she was vacuuming, but would have to haul it up and down the stairs when going to another floor.

The worker said that she couldn't take it any longer at the beginning of October, and went to see her doctor. She told her doctor she was stressed because her back was sore and she was waiting for the hose for the vacuum. She said she could barely bend at that point, and she told her doctor to give her two weeks off work so she could rest her back. Her doctor faxed a sick note to her supervisor, and when she went to pick up her cheque from the employer the following day, she was told that her employment was terminated. The worker submitted that she would still be working at her job if she had not had the problem with the vacuum and if the employer had repaired or replaced the broken hose even one week earlier, by the end of September, 2015.

The worker said that her whole life has changed as a result of her injury. She cannot walk any distance without being in pain. The simplest tasks, such as peeling potatoes, sweeping the floor and standing to do dishes, is hard. She cannot play or do even the simplest things with her grandchildren. She said she can't describe her pain as it is so excruciating. She indicated that she has some good days, but they are rare. In advance of the hearing, she had provided copies of medical charts and records from numerous visits she made to hospital emergency departments in 2016 and 2017.

In closing, the worker submitted that she should be entitled to compensation as she was injured at work and cannot work anymore. She said that she loved her job and talking with the people, and believed that she would still have been working there if not for the vacuum problem.

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 be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of employment. For the reasons that follow, the panel is unable to make that finding.

The panel notes that the worker has not suggested that she suffered an acute injury on July 15, 2015, the date of incident as set out in her claim, or at any other time. The panel finds that there is no evidence to indicate that there was any one particular event which might have caused her low back and left breast/chest difficulties.

The panel went on to consider whether the worker's difficulties developed over a period of time as a result of her work duties. The panel carefully considered the evidence regarding the worker's work duties, as documented on file and as described at the hearing, but is unable to find, on a balance of probabilities, that it establishes a causal link between her symptoms and her work duties.

The worker has attributed the problems with her back to having to use a smaller, canister style vacuum after the original vacuum broke. Information on file indicates that the hose on the original vacuum broke on July 14 and the worker started using the replacement vacuum the following day, on July 15, 2015. At the hearing, the worker stated that she did not experience pain immediately; the pain started approximately three weeks after she started using the replacement vacuum.

The panel notes that the worker did not seek medical treatment for her back until at least two months after she said the pain started. A chart entry from the worker's family doctor dated October 14, 2015 specifically notes that a WCB form was "requested for injury at work? in July" and that it was "sent back informing no special visit for that reason in July (or August)." Chart notes further indicate that the worker saw her family doctor on September 14, 2015, but not for a back injury or back pain.

The first reference to back pain is in the chart notes of the worker's visit to her family doctor on October 5, 2015. Chart notes for that visit state that the worker's complaints at that time related to stress and employment issues, and read: "Self booked today due to increased stress; working as caretaker and multiple issues with the resident manager…Conversation at length with re to her non pleasant work environment…" The notes mention that: "Physical work not ideal since latterly had to continuously bend down until proper cleaning equipment was provided and she developed intermittent back pain since…has access to chiropractor and encourage to book apt." Consistent with the stated complaints, however, the doctor went on to observe that the worker had a "persistent cough during visit, tearful and frustrated when describing her work environment," and the diagnosis was "Adjustment Reaction with anxiety..."

The worker stated at the hearing that she was in pain and could barely bend on October 5, that she told her doctor at that time that she was stressed because of her back, and asked her doctor to give her two weeks off so she could rest her back. That evidence, however, is not supported by the information on file. In the panel's view, the worker's current recollection of what she told her doctor on October 5, 2015 is not sufficient to overcome the doctor's contemporaneous record of what the worker told her.

The panel also notes that CT scans of the worker's lumbar spine do not show signs of acute injury or trauma other than multilevel degenerative disc disease. The CT scan of the worker's lumbar spine dated July 4, 2016 identified "Multilevel degenerative changes seen in the lumbar spine…No evidence of significant central canal stenosis is seen in the lumbar spine." In a letter dated April 27, 2017, a physiatrist reported that "previous imaging findings were consistent with spondylosis of the spine causing pain."

The evidence further indicates that the worker's back condition never resolved, even once the worker was away from work; on the contrary, her symptoms became progressively worse over time. In response to questions from the panel at the hearing, the worker stated that after two weeks off work, she was still in pain. After four or six weeks, her back did not get better; rather:

…it started…affecting me when I would do things, like…to stand there for five minutes and do your dishes, it would start bothering me. And for me to sweep and mop the floor, it would start bothering me. But…it didn't bother me all the time, I had good days…But I started noticing that I couldn't walk very far…I had loved walking, and I used to walk all the time. But it started affecting my back and my legs, my legs would get sore.

The panel considered the medical reports which the worker provided relating to her emergency room visits in 2016 and 2017. The reports generally indicate that the worker was experiencing severe pain at the time of those visits. Several reports also indicate that when asked, the worker said she did not know what caused the pain. The worker confirmed at the hearing that she did not know what caused or causes the pain, that she can be going for a walk and her back will start hurting or her back will just start hurting when she is sitting; that the pain "just starts." The panel is unable to relate the worker's symptoms as noted in those reports back to her vacuuming or other work duties.

The panel recognizes that the worker has experienced and continues to experience significant difficulties and severe pain. However, based on the information before us, on file and at the hearing, the panel is unable to find that the worker's symptoms and ongoing pain and difficulties are causally related to her workplace duties or to a workplace incident or accident.

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. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 29th day of December, 2017