Decision #42/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim was not acceptable. A hearing was held on February 8, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
The worker filed a claim with the WCB on January 9, 2017 for a lower back injury sustained October 18, 2016. On October 20, 2016, the worker sought medical attention from her doctor, who indicated that the worker's right lower para-spinal muscles were very taut and there was decreased flexion and left lateral flexion secondary to pain. The doctor noted there was no obvious inciting event that caused the worker's lower back pain.
On October 26, 2016, the worker attended a physiotherapist, who provided a diagnosis of right sciatica and noted:
Subjective complaint: Last Tuesday, 9 day (sic) before was getting LBP [low back pain]. Went to doc - not diagnosed. R [right] side back pain radiating down R leg numbness (front and side of leg). No injury. Can't think of anything that aggravated pain, caused it.
The worker was seen at a hospital emergency department on October 28, 2016 complaining of back pain. The hospital report indicated that the worker developed low back pain approximately two weeks previously, was "off work for same, works in a clerical job," and there was no recent trauma. The worker was diagnosed with sciatica, radicular pain.
At an initial appointment with a chiropractor on November 22, 2016, the worker described her injury as "Severe low back pain since Oct. 18 2016, attributes to work duties." The chiropractor provided a diagnosis of "Suspected L4-L5 disc herniation."
At a further physiotherapy assessment on January 12, 2017, the worker described the incident as "Injured at work Oct 18/16 - repetititive (sic) bending, putting heavy stack of files in cabinet - sore by end of day." A diagnosis of "Lumbar L5-S1 (disc involvment) radiculopathy" was provided. The physiotherapist also noted that the worker was "assessed Oct 27/16…did not mentioned (sic) work related."
An MRI of the worker's lumbar spine on January 26, 2017 showed:
L2 L3: There is a focal left foraminal disc protrusion with annular tear approaching the exiting left L2 nerve root but there is no compression.
L3 L4: A moderate focal left foraminal disc protrusion is present contacting the left L3 nerve root.
L4 L5: There is a shallow diffuse disc bulge with mild facet osteoarthritis. Left laterally extending into the foramen there is a small disc protrusion but there is no nerve root compromise.
L5 S1: Mild facet osteoarthritis is present with very minimal degenerative anterolisthesis. There is a shallow disc bulge but no evidence of nerve root compromise or stenosis.
No right-sided abnormality is seen.
At a follow-up appointment with her doctor on February 7, 2017, the worker advised that her leg pain had resolved. The doctor also noted that "MRI showed no nerve root compression, though exhibits multiple disc protrusions which could have been a factor."
On February 21, 2017, the WCB advised the worker that her claim was not acceptable. The WCB found that the worker did not have a significant change to her job duties or increase in her workload which would account for the onset of her symptoms. The WCB was not aware of the injury until January 9, 2017, there was no record of a work-related history reported to the employer, and the medical reports on file did not support her claim that an acute injury happened on October 18, 2016. On May 1, 2017, the worker requested reconsideration of the WCB's decision by Review Office.
On July 11, 2017, Review Office found that the worker's claim was not acceptable. Review Office focused on the information most proximal to when the worker experienced disability due to her low back condition as being the most accurate. Review Office noted that the worker did not initially report a workplace injury to her doctor or her physiotherapist and that a work-related cause was not reported to her doctor until almost three months later. Review Office also noted that the January 26, 2017 MRI confirmed that the worker had pre-existing degenerative changes in her lumbar spine. Review Office found that work-related filing or the act of bending at the waist was not supported as causal in the worker developing lower back pain, and that the worker's low back pain was not "…arising out of, and in the course of…" her employment.
On July 26, 2017, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
Applicable Legislation and Policy
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,
(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.
WCB Policy 44.05, Arising Out of and in the Course of Employment, addresses the interpretation of the phrase "arising out of, and in the course of, employment," and states, in part, as follows:
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 126.96.36.199, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits, and states, in part, that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her union representative and the panel.
The worker's position was that the low back difficulties she experienced on October 18, 2016 were the result of an accident which arose out of and in the course of her employment, and her claim is acceptable.
The worker's representative noted that according to her accident report, the worker experienced a sudden onset of intense back pain while filing on October 18, 2016. The worker advised the WCB adjudicator that she was fine before her shift, but the pain she experienced was so severe when she was leaving that she was almost in tears. In an email she sent to her supervisor that day, she stated that she was in a great deal of pain, her back had been sore for a few days, "but this morning, it went on me."
The worker's representative acknowledged that the delays in the worker's reporting made it challenging for the WCB to accept that her back claim was caused by an accident at work. He noted that the worker had explained that she had not reported it as such because she "was not aware that this would be considered a WCB claim."
It was submitted that while the worker did not at first expressly indicate to the employer that she thought the claim was work-related, she suggested that it was a few weeks later, when she sent an email to her supervisor on November 29, 2016 inquiring as to whether her back injury would qualify for a WCB claim. Unfortunately, however, she was discouraged by the employer's response to her inquiry. It was submitted that the worker had never had any need to file a WCB claim in her 35 years of working for the employer, and should not be penalized for her lack of knowledge of the WCB's reporting requirements.
The worker's representative noted that the worker's doctor had opined that her pain on October 18, 2016 was consistent with nerve root impingement from a herniated disc, which was consistent with flexion at the waist with or without lifting, and that it seemed likely that her daily work tasks, which involved flexion at the waist, precipitated this event.
In response to questions at the hearing, the worker described her job duties at the time, noting that she spent 70 to 80% of her time on the computer, with the rest of her time being spent physically pulling files and refiling them. The worker noted that there was a particular committee which generally met every second week, and that the bulk of her filing was done at that time. The worker indicated that this was what she was doing on October 18, where she had received the files back from the meeting and had to file them. She recalled that there was a very large amount of filing to do that particular day, and she had spent most of the morning refiling the files. The worker recalled standing by the filing cabinets after getting up, and thought that she had been bending down into the lower filing cabinets and felt a sharp pain in her lower back on the right side. She tried to finish what she was doing, but the pain got progressively worse very fast, and got to the point where she could not sit down and had to email her supervisor while standing up.
The worker's representative noted that while filing was not an exceptional occurrence, the worker had reported that she had been doing approximately 2½ to 3 hours of filing when her back pain began. It was submitted that the repeated bending which the worker did while doing her filing at work on October 18, 2016 was an accident as defined in the Act. It was further submitted that if the injury was not solely caused by the workplace activities, those activities likely triggered an exacerbation of the worker's underlying degenerative condition.
The employer was represented by its Workers Compensation Coordinator. The employer's position was that the information does not support that an accident occurred in the workplace that was responsible for the worker's low back pain, and the claim is not acceptable.
It was submitted that the information on file indicated that the worker was not doing anything unusual or out of the ordinary on October 18, 2016. A memo to file dated January 30, 2017 indicated that the worker did not do filing every day, but it was part of her normal job duties. It was noted in the memo that the worker did not recall a specific incident where the worker experienced a sudden pain in her back and there was no change in her job duties or work load on October 18, 2016. The descriptions in the worker's incident report indicated that several months after the onset of the pain, she was still guessing as to what happened and was not relating anything to a specific event that occurred.
It was submitted that this was not reported as a workplace injury resulting from a specific incident as there was no specific incident to report. The manager was not aware that this was reported as a workplace injury until January 10, 2017 and there was nothing to suggest that this had anything to do with work for four months. There was no indication of a work relationship or a connection between what the worker was doing on October 18, 2016 and her back pain in the brief email exchange between the worker and her employer that day.
The employer's representative further noted that there was nothing in the early medical reports that indicated there was an inciting event which caused the worker's low back pain or that her injury was work-related. It was submitted that the worker would have mentioned it if she felt not just that something happened in the workplace, but that she was actually doing something in the workplace that produced her pain, but nothing was relayed to her doctor or physiotherapist. It was not until January 6, 2017 that she called the physiotherapist to indicate that she was going to file a WCB claim.
The employer's representative noted that while the worker was saying that her symptoms were radicular on the right side, nothing in the MRI spoke to any right-sided compromise of the nerve roots and everything appeared to be left-sided.
The employer's representative submitted that having pain or an onset of pain at work does not equate to having a work-related accident or the pain being work-related. There has to be something about the work that occurred to cause problems or pain; there has to be some nexus to the workplace. In the employer's view, the evidence supports that there was no specific incident and no nexus to the workplace.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of her employment on October 18, 2016. The panel is able to make that finding, for the reasons that follow.
The panel is satisfied that the evidence indicates that the worker experienced an onset of severe back pain at work on October 18, 2016, that she immediately reported her symptoms to her employer and went home right away. The panel finds that the worker reported that something happened in the course of her employment and that she was hurt, although she did not relate her injury to a specific cause.
The panel finds that the mechanism of injury was related to the worker's job duties as described by the worker at the hearing. The panel notes that while filing was a routine part of the worker's job duties, the worker's evidence, which the panel accepts, is that most of the filing and refiling was done once every two weeks.
The panel accepts the comments of the worker's treating physician in his April 26, 2017 correspondence on file, that "One of the main contributors of a herniated disc is flexion at the waist, with or without lifting."
Based on the evidence before us, the panel finds that the worker was bending and standing up a number of times and twisting and turning at different heights on October 18, 2016, while attending to her filing duties, and was in the process of standing up when she noticed a sharp pain. Based on the evidence, the panel finds, on a balance of probabilities, that the worker was performing her job duties and in the course of her employment when her injury occurred.
The panel accepts that the worker sustained a lower back injury as suggested by multiple descriptions in the medical reports on file of a disc herniation or sciatica.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a lower back injury on October 18, 2016 by accident arising out of and in the course of her employment, and that the claim is therefore acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of April, 2018