Decision #75/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. A file review was held on April 3, 2018 to consider the employer's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
On August 4, 2009, the worker reported to his employer that he hurt his lower back in an incident he described as follows:
I drive an order picker (a forklift that you go up in the air with it). You back into a pallet of stock. It lifts it up. You go up with it so you can put boxes in racks. As I was coming back down we have these special radio frequency guns that we scan stuff into locations. I was coming back down. I bent down to put the gun down on the floor. When I went to get back up, my back locked. I could not stand up straight.
On August 6, 2009, the worker attended an initial examination with his doctor who diagnosed the worker with a lumbar strain and recommended the worker attend physiotherapy. The worker's doctor also completed a Modified Work Program - Abilities Assessment on August 6, 2009 noting that the worker was unable to work for an estimated two to eight weeks.
The worker attended an initial physiotherapy session on August 11, 2009. The physiotherapist diagnosed the worker with a lumbar strain and questioned whether there was disc involvement.
On October 21, 2009, the worker attended a WCB call-in examination with a WCB medical advisor. The WCB medical advisor opined, in part, as follows:
[The worker's] diagnosis is SI joint strain.
[The worker] should have the following restrictions:
1. Avoid lifting more than 20 pounds.
2. Avoid prolonged standing more than 15 minutes without being able to adjust his position.
3. Avoid prolonged sitting more than 30 minutes without being able to adjust his position.
The duration of these restrictions should be one month.
The WCB medical advisor also stated that the worker should be able to begin a graduated return-to-work program, starting at two hours per day, and increasing by two hours per week until the worker was back to full-time hours. The worker started the graduated return-to-work program in October 2009 and resumed his full-time duties in December 2009.
On June 7, 2017, the employer's representative requested reconsideration by Review Office of the WCB's August 11, 2009 decision to accept the worker's claim. The employer's representative submitted that the worker may have developed back pain while at work but his injury did not arise out of his employment, as there was no hazard at work that contributed to his lower back injury. The criteria for a work-related injury had therefore not been met.
On August 1, 2017, Review Office determined that the worker's claim was acceptable. Review Office found that the worker's duties required him to bend over to place the hand-held device on the ground while performing his work duties, and the act of bending resulted in a back strain as diagnosed by the worker's healthcare practitioners. Review Office found that as the worker was at work and working his normal duties when the injury occurred, the incident arose out of and in the course of his employment. Review Office further found that the diagnosis of a strain and the worker's recovery were in keeping with the workplace accident of August 4, 2009, and the information on the file did not support that the worker was injured outside of his employment.
On January 11, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and a file review 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.
"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 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.
The employer was represented by a consultant who provided a written submission for the panel's consideration.
The employer's position was that the worker's low back injury was not work-related and their appeal should be allowed.
The employer's representative noted that the worker reported he was bending over and felt pain in his back when he went to stand up. The representative submitted that the worker was not lifting anything and this was simply a normal body movement of standing up. There was no "chance event occasioned by a physical or natural cause" because the worker was not actually performing any task; he was simply bending over.
It was submitted that to suggest the worker was bending over for the purposes of his employment would make the definition of an accident or hazard so broad that essentially anything a worker did at work would be considered work-related. In the employer's view, that is not what the workers compensation system was set up for. Normal body movements that result in aches and pains should not be considered to be accidents. Standing up after being bent over is no more an obligation of employment than breathing.
The employer's representative submitted that the problem with accepting a claim for an injury caused by normal body movements is that there is no way for an employer to prevent such accidents because they depend heavily on the physical well-being of the worker. The worker in this case was performing the same duties as on any other day, and there was nothing to suggest that his job demands increased at any point. As standing up was not a sudden or strenuous activity or an isolated requirement of employment, the worker's claim should not be accepted.
The worker did not participate in the appeal.
The employer has appealed the WCB's decision that the worker's claim for an injury to his lower back is acceptable. For the employer's appeal to be successful, the panel must find that the worker was not injured by accident arising out of and in the course of his employment as provided by subsection 1(1) of the Act. The panel is unable to make that finding.
Based on our review of the information on file and the submission of the employer, the panel is satisfied that the worker was injured by accident arising out of and in the course of his employment.
The worker's claim was accepted as a strain injury. The panel notes that this is the diagnosis which was provided by the worker's healthcare practitioners and is consistent with the mechanism of injury.
The evidence indicates the worker drove a type of forklift where the operator would be lifted up with the pallets of product, and could put boxes of product on racks. The worker used a hand-held device to scan the product into locations. On August 4, 2009, as he was coming down on the forklift, the worker bent over to put the scanner down, and when he went to get up, his back locked, leaving him unable to straighten up and in pain.
The panel is satisfied, based on the evidence, that the worker was at work and engaged in performing his job duties when his back locked up and his back pain began. The panel is therefore satisfied that the worker's low back injury occurred in the course of his employment.
The panel is further satisfied that the injury was a consequence of and arose out of the worker performing his job duties. In this regard, the panel finds that the hand-held scanning device which the worker used was equipment which he was required to use in order to perform his job duties. The panel further finds that the worker was required or expected to put the device down when operating the forklift and that putting the scanning device down while on the forklift would involve a certain amount of awkward bending and twisting. The panel finds that the worker was in the process of bending to put the scanning device down when his injury occurred on August 4, 2009, and is satisfied, on a balance of probabilities, that this mechanism of injury is consistent with the diagnosis of a strain injury.
Based on the foregoing, the panel finds that the worker was injured by accident arising out of and in the course of his employment as provided by subsection 1(1) of the Act. The panel therefore finds that the claim is acceptable.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of June, 2018