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 was not acceptable. A hearing was held on March 20, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On June 25, 2017, the worker, reported suffering an injury to her right hip while caring for a client. She described the incident as feeling "a burning pain in her right hip." The worker later advised the WCB that she also had a second incident of the same burning pain in her hip later on that day as well as hearing a "click" in her hip when she turned to speak to a co-worker.

The worker saw her chiropractor on June 27, 2017 who diagnosed the worker with a lumbar spine vertebral subluxation complicated by an SI strain.

The worker's chiropractor also recommended that the worker be off work. The worker's chiropractor provided a medical note on June 28, 2017 for the worker and outlined restrictions on her return to work.

On July 6, 2017, the WCB advised the worker as they could not establish a relationship between the worker's current/ongoing symptoms and her job duties, her claim was not acceptable.

The worker's chiropractor called the WCB on July 7, 2017 after receiving a copy of the WCB's decision. The worker's chiropractor advised that the worker stated there was a co-worker who witnessed the incident when it happened and provided the WCB with the co-worker's contact information.

The worker's chiropractor provided the WCB with a letter dated July 12, 2017 to clarify his initial diagnosis of the worker's lower back pain, as follows:

I am writing to you to clarify my diagnosis of [the worker's] lower back pain. I understand you were confused by the term degenerating in my return to work letter & had mistaken my usage of the word as meaning degenerative joint disease.

Degenerating is defined as - becoming worse; to develop into a condition that is worse than before, worse than normal, or not as good as it should be.

Therefore, and this context & any instance of an ACUTE injury, degenerating is an appropriate and accurate term.

The WCB further advised the worker on July 21, 2017 that her claim was not accepted. The WCB noted that they spoke to the worker's co-worker who stated:

Your co-worker indicated you were in a seated position and going into a standing position when you both heard a click. You informed your coworker it was your hip. You (sic) co-worker said you reported that everything was fine and did not report anything concerning after that time. You both continued with your regular duties until the end of your shift.

The WCB also advised the worker that they had the worker's claim reviewed by a WCB chiropractic consultant on July 18, 2017 who opined:

Clicking or snapping type noises emanating from the area of the low back on arising from a trunk flexion position is not unusual and does not signify an injury. Low back sprain and strain injuries would typically be accompanied by immediate pain or discomfort. The objective findings by the chiropractor are ubiquitous and not discerning for an injury involving the low back.

The worker requested reconsideration of the WCB's decision on July 26, 2017. The worker's representative submitted a letter in support of the worker's claim on August 24, 2017.

Review Office, on October 19, 2017, upheld the WCB's decision. Review Office found that a strain type injury, as reported by the worker, typically does not have a delay in the onset of pain. The worker reported the workplace incident happened on June 25, 2017 and only reported waking in pain on June 27, 2017. Review Office also relied on the opinion provided by the WCB chiropractic advisor that clicking or snapping type noises are not unusual to hear when moving from a trunk flexion position and that low back sprain/strain type injuries are typically accompanied by immediate pain or discomfort.

The worker's representative filed an application with the Appeal Commission on October 24, 2017. An oral hearing was held on March 20, 2018.

Reasons

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:

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

"accident” means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful 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;

The WCB Board of Directors enacted WCB Policy 44.05.20, Arising Out of and in the Course of Employment. This policy provides in part that:

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 44.10.20.10, Pre-existing Conditions addresses the issue of pre-existing conditions when administering benefits. The policy states 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 following definitions are set out in the policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker is appealing the WCB Review Office decision that her claim is not acceptable. The worker was represented by a union representative who relied on a written submission to the panel, as well as the evidence provided by the worker at the hearing and from the file. The worker responded to questions from her representative and the panel. The worker's position was that she was in the course of her employment when she was injured on June 25, 2017, and her claim should be accepted.

The worker visited a number of clients every day in a seniors' residence and in the community. The first incident occurred with her first client of the day. She felt a burning sensation in her left hip while bending over for 10 minutes to wash the client. She stretched and the burning sensation went away within a couple seconds. The same thing happened later that morning with her third client. After helping him to dress, she rose up to stand when she felt the same burning sensation. Again, it went away after a brief stretch that involved the worker moving her shoulder back. She later took a lunch break in the staff room with a co-worker. As the end of lunch, 30 minutes later, she stood up and heard an audible click in her hip which her co-worker could also hear. The worker demonstrated the location of the click as being on the front part of the body, in the crease between the leg and groin area, closer to the hip. The worker indicated that the only thing she felt was the click.

In response to questions from her representative and the panel, the worker advised that she completed her regularly scheduled activities for the remainder of her shift without seeking or requiring any additional assistance. The co-worker later confirmed that the worker did finish her shift but was visibly limping.

The worker did not have significant symptoms the next day which was a day off. The worker stated that there was no further discomfort until June 27 when she had acute pain in her left hip and back that was radiating into her thigh. The worker described her symptoms that day as taking a hot poker and grinding it down through the thigh. This pain was immediate, when she woke up in the morning. The pain was located in the front crease between the left leg and groin, towards the hip. At this point, the worker decided to see a chiropractor. The union representative suggested that the diagnosis of a low back and sacroiliac strain was consistent with her mechanism of injury.

The worker then advised that she was off work for a week and then involved in a graduated return to week that lasted about one week before she resumed her regular duties. The worker continued with hot baths with Epsom salts and with seeing her chiropractor until September 2017.

The union representative's position was that the worker had been bending for prolonged periods of time, and that the reported burning sensations and pain were causally connected to her job duties and to the medical treatment she required two days later. There was further support from the co-worker's observations that the worker was taking it easy and had been "limping like she was sore." The treating chiropractor also found that the worker's symptoms and medical diagnosis (a lumbar vertebral subluxation complex complicated by a sacroiliac joint strain) also corresponded to the same area where the worker felt discomfort at work on June 25, 2017.

Employer's Position

The employer representative attended the hearing. He advised that the employer agreed with the decisions already made by the WCB adjudicator and Review Office. He noted that the worker's reported burning sensation/warmth was a symptom which does not imply a specific injury; it is just a symptom. He noted that the worker was able to carry out the rest of her workday without complaint. The worker was well aware of the reporting procedures and incident reports and had not done so that day. There had been no concerns expressed by the worker to her co-worker or to the employer that day.

As to the worker's medical condition, the representative stated: "So, anyhow, vertebral subluxation joint complex does not point to an injury. It just points to, it’s like having a hinge on a door, and one of the hinges is not working quite so good, so you do a spinal adjustment to make sure that they’re aligned again, as [the worker] said. I’m glad to see that she is going preventatively to the chiro." He further noted that there was no connection between this diagnosis and the area where the worker reported her symptoms on June 27, 2017. His position was that the delayed reaction of the symptoms did not align with the acute injury reported on June 27, 2017 given that the worker was fully functional for the remainder of her shift and through the next day. If there had been a work event, the symptoms would have gradually progressed over time and not disappeared for two days and then suddenly show up.

In the representative's closing comments, he noted the worker's new evidence at the hearing that she had her patella surgically removed in 1994 and 1995 and had been limping ever since. He stated that "all your thigh muscles attach on to your patella, and then that attaches onto your lower leg. So if the patella had been removed, then they basically reattached all the muscles of your thigh elsewhere, which would change the functioning of your lower leg." This would lead to an imbalance in the worker's leg. He suggested that any symptoms are probably more likely related to the change in how her leg works because of not having a patella, than a work event.

Analysis

For the worker's appeal to be approved, 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 her employment. The panel was not able to make this finding.

In coming to this conclusion, the panel places particular weight on the following: 

• While there was reference to a previous and similar incident in 2014, the panel finds that the reported symptoms in 2014 and 2017 were quite different. The evidence does not support that the worker had a pre-existing or degenerative hip condition that has an impact on the current claim.  

• The evidence on file and at the hearing, including detailed questioning by the panel, confirms that the worker continued her heavy care duties for the remainder of the day on June 25, 2017. The worker also confirmed that her routines in dealing with the physicality of her job did not change that afternoon. Her evening routines and activities the next day did not change, nor did she experience any discomfort or symptoms in that period. The worker indicated that she took hot Epsom salt baths and naproxen, but these were part of a longstanding routine that preceded the June 25 incident. 

• The panel also questioned the worker about a co-worker noting that she had been visibly limping that afternoon. The worker advised, however, that her limping was actually longstanding, dating back to the surgical removal of her patella in 1994 and 1995 as a result of her extensive participation in sports. She has been taking Naproxen daily since, and it is one of the reasons why she takes hot baths regularly. The panel finds that the worker's limping was not a symptom associated with an acute injury on June 25, 2017. 

• The worker's first symptoms occurred early on June 27, 2017 when she awoke to go the washroom, sat up and immediately felt a severe "hot poker pain" in the front leg/groin area. The panel notes that this a very different anatomical area from the burning sensations of short duration that were twice reported by the worker as having taken place on June 25, 2017. The panel also notes that it was not until this last event that the worker sought chiropractic treatment and received a diagnosis of a lumbar vertebral subluxation complex complicated by a sacroiliac joint strain.

The panel finds, on a balance of probabilities, that the delayed onset of the worker's pain and its appearance two days later in a different anatomical area does not support a causal connection between the diagnosed medical condition and the incident, but rather a distinct acute injury not related to the work incidents of June 25, 2017. The panel adopts the WCB chiropractic advisor’s opinion of July 18, 2017 who notes that "clicking or snapping type noises emanating from the area of the low back on arising from a trunk flexion posture is not unusual and does not signify an injury. Low back sprain and strain injuries would typically be accompanied by immediate pain or discomfort." As such, the panel finds that there was no work "accident" under the Act.

The worker's appeal is therefore declined.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of May, 2018