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 April 9, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In a Worker Incident Report dated October 13, 2015, the worker reported that she had lower back pain - sciatica which began in January 2015. She started a ten-week training course with the employer on January 12, 2015, and by two weeks into training she began experiencing pain in her lower back. She spoke to the trainers and the co-worker who was sitting next to her. She was sitting in the second row in the classroom, and had to lean over and move around to be able to view the screen at the front of the class.

In an initial discussion with a WCB adjudicator on October 19, 2015, the worker confirmed that she first began experiencing lower back pain in January 2015, two weeks into the training course. She said that she developed a cold at the end of January 2015 and really noticed her lower back pain when she coughed. She attended a medical clinic for her cold on January 29, 2015 and mentioned her lower back pain to the nurse on duty. The worker further advised that the trainers had accommodated her in the training room by allowing her to stand at the back of the room.

The worker said that her lower back pain subsided after she completed the training, but by April 2015 she had "…a constant tingle in her right leg and hip would be sore." The worker said that on August 12, 2015, she had immediate pain when she was getting up from her chair at work, with a shooting pain down her right leg, through her right buttock and hip. She said she did the same thing in September 2015, twisting when she got up out of her chair, and since then, her lower back pain "…has been excruciating and radiating down to her right foot, her right leg/foot feel numb…"

At an appointment with a chiropractor on September 16, 2015, it was noted that the worker reported she injured her low back bending over to pick up her dog in early August, and claimed that this aggravated her back injury which occurred in January. The chiropractor diagnosed the worker with lumbar disc derangement and indicated she was capable of modified duties with restrictions of "No lifting, bending, or twisting. Limit sitting time for 15 minutes."

On September 23, 2015, the worker attended an appointment with another chiropractor who provided a diagnosis of "Acute moderate L4-5 R (right) disc herniation with R (right) radiculopathy of L4-5 nerve root." On October 16, 2015, the worker saw her family physician, who diagnosed her with lower back pain on the right side with radiculopathy and referred her for an MRI.

The worker's claim was reviewed by a WCB medical advisor on December 11, 2015, who opined that the diagnosis was a right lumbar radiculopathy and that most people affected by lumbar radiculopathy improve within eight to twelve weeks. The WCB medical advisor also opined that the worker's current difficulties could not be accounted for based on the description of the workplace injury in January 2015.

On December 16, 2015, Compensation Services advised the worker that her claim was not acceptable as the WCB was unable to establish that her lower back injury was the result of her sitting in a chair and leaning during training or her employment subsequently. By letter dated January 31, 2016, the worker requested that the WCB reconsider their previous decision and provided further information, including letters of support from her physiotherapist and treating chiropractor.

On March 11, 2016, Compensation Services advised the worker that following a further review of her claim, including the medical information provided and the results of a January 25, 2016 CT scan which they had obtained, there was no change to their December 16, 2015 decision.

On May 9, 2016, a union representative acting on the worker's behalf requested that the WCB reconsider their December 16, 2015 and March 11, 2016 decisions in light of further new information. The worker's representative provided the results from an April 20, 2016 MRI and a further letter of support from the treating chiropractor. On May 10, 2016, the WCB medical advisor reviewed the new medical information and advised that the information did not result in a change to his previous medical opinions.

On May 11, 2016, Compensation Services advised the worker that there was no change to their previous decision that her claim was not acceptable. Compensation Services stated that based on a further review of all the information which had been provided on her claim, they could not establish a relationship between her lower back difficulties and her job duties as described.

On July 20, 2016, the worker's representative requested reconsideration of Compensation Services' decisions by Review Office. The worker's representative submitted that the information indicated workplace injuries in January 2015, as well as the subsequent injuries on August 12, 2015 and September 16, 2015, were compensable injuries and should be accepted as such.

On October 12, 2016, Review Office determined that the worker's claim was not acceptable. Review Office accepted the March 10, 2016 opinion of the WCB medical advisor and noted the WCB medical advisor's comments that chronic sedentary positioning was noted as the mechanism of injury leading to the worker's lumbar radiculopathy. Review Office accepted the WCB medical advisor's opinion that a review of medical literature found "Where this issue has been studied, there has not been a demonstrated relationship between sitting in the workplace and the development of lumbar disc herniation or lumbar radiculopathy. There is not sufficient evidence to attribute lumbar disc herniation to any identified ergonomic risk factors…" Review Office found, on a balance of probabilities, that the worker's low back problems were attributable to her lumbar spine degenerative changes which become symptomatic periodically and accordingly, a workplace accident could not be established.

On May 16, 2017, the worker appealed Review Office's decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act ("GECA").

Under subsection 4(1) of GECA, an employee who suffers a personal injury by an accident arising out of and in the course of his employment is entitled to compensation.

"Accident" is defined in section 2 of GECA as including "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to paragraph 4(2)(a) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act of Manitoba (the "Act").

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation on behalf of the worker. The worker responded to questions from the panel.

The worker's position was that she suffered workplace injuries in January 2015, as well as subsequent injuries on August 12, 2015 and September 16, 2015, and her claim is acceptable.

The worker's representative submitted that they were not just relying on the extended period of sitting in January 2015, but on a number of contributing factors as well, including the worker's position in the training room in relation to others, her manipulation of large binders, the lack of appropriate workspace and lack of proper positioning to view the presentation. The representative referred to two witness statements which had been provided a couple of weeks previously to clarify the situation, and highlighted various portions of those statements.

The worker representative referred at length in both the written submission which was filed with their appeal form and in his presentation at the hearing to documentation and observations from the treating chiropractor which outlined their viewpoints. The worker's representative indicated that this was the key piece of information that they were relying on. The worker's representative submitted that additional weight should be attached to the opinion of the specialist (the treating chiropractor) who had been treating the worker, as opposed to that of the WCB medical advisor who had not examined the worker or asked any questions of her, and who was relying solely on the documentation provided.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to the successful, the panel must find that the worker sustained an injury by accident arising out of and in the course of her employment, or in other words that the worker's job duties were causally related to her lower back difficulties. The panel is not able to make that finding.

The panel carefully questioned the worker in the course of the hearing with respect to her training course starting in January 2015, including the nature of the sessions and activities performed, the time spent at different activities, the layout of her workspace, her position in the classroom and in relation to the screen at the front of the room and the trainers.

In response to questions from the panel, the worker indicated that during the first eight weeks, they were following the materials in the binders and looking at the screen at the front of the room. The worker said that they were maybe not doing this for the whole day, but for a good portion of it. The worker said that what was bothering her was that she had to lean over to see the screen, given where she was located and the position of the trainer who stood at a podium in front of the screen.

The worker noted that while her chiropractor had put emphasis on the binders, that was more him than her, and the binders were not bothering her that much. She described how she was constantly leaning over, her chair was uncomfortable and the room was cold. She indicated that there were conversations throughout the day, but added that they were always interactive, with reference to the material on screen. She also indicated that the trainer had printed off the power point presentation for some people, and she had a copy of that within the first week.

The panel finds that the worker's description of the mechanics of the incident, both in information on the file and as presented at the hearing, does not support that a compensable injury occurred on January 12, 2015. The panel notes that the worker did not seek medical treatment in early 2015, and as such has no basis to establish a diagnosis at that time. The panel also notes that when medical treatment was finally sought in August and September 2015, the symptoms were radicular in nature, and very different than the symptoms described in January 2015. The panel cannot relate those later diagnoses to the worker's earlier complaints.

The panel notes that information provided at the time with respect to the August 12 and September 16, 2015 incidents was inconsistent with the evidence at the hearing. With respect to the August 12 incident, the worker said that she "was working on a file…at least six to eight inches high, and I went to grab it, and I twisted around…and I grabbed it, and as I was doing that I went to get up, and then I felt the pain shoot down my leg." The worker said that the September 16 incident was very much the same scenario. The worker stated that grabbing files was something they were doing fairly regularly at the time. In response to a question as to whether there was something unique about these two times, the worker said "The way I may have twisted in my chair, I don't know." The panel is unable to find that the worker's descriptions of the August and September incidents support that a compensable injury occurred at that time.

The panel notes that the evidence shows the worker has multiple pre-existing problems in her back. The January 25, 2016 CT scan shows, among other things, that at L4-5 there is "moderately advanced bilateral facet osteoarthritis…" The reported impression from the April 20, 2016 MRI of the worker's lumbar spine is that "The right L5 is compressed by a synovial cyst from a degenerative facet joint."

While the worker heavily relies on the observations of the treating chiropractor, including his letter of January 27, 2016, the panel is unable to place significant weight on the treating chiropractor's reports. The panel notes, among other things, the worker's evidence as indicated above that the chiropractor was relying heavily on the binders which the worker was using, but she did not find that the binders bothered her that much. The chiropractor also indicated that the diagnosis of disc herniation could only be confirmed by CT scan and MRI, which had not been done. The panel notes, however, that the CT scan and MRI report did in fact later confirm that the worker has significant degenerative conditions.

The panel places significant weight on and accepts the WCB medical advisor's March 10, 2016 opinion, following a comprehensive view of the worker's entire file, where he opined that:

Based on a combination of the above factors, it is not probable that symptoms and disability experienced late in 2015 and at the present time relate to workplace exposure in January 2015.

The panel also accepts the WCB medical advisor's May 10, 2016 opinion that:

The April/16 lumbar spine MRI report was submitted to file subsequent to my March 10/16 opinion. The report of the MRI indicates degenerative changes. There is mention of a synovial cyst from a degenerative facet joint that appears to be compressing the right L5 nerve root. This synovial cyst is a plausible substrate for right lumbar radiculopathy. The synovial cyst, arising from a degenerative facet joint, is itself a degenerative change. Thus, the MRI findings do not result in a change to medical opinions that were previously provided in this case.

Based on the foregoing, the panel is satisfied that the worker's lower back difficulties were not causally related to her job duties. The panel accepts that the worker has a degenerative low back condition, with a natural history of waxing and waning. The panel finds that the worker was symptomatic at work, but is unable to relate her symptoms or difficulties to her work or job duties.

In conclusion, the panel finds, on a balance of probabilities, that the worker's lower back difficulties did not arise out of and in the course of her employment. The panel therefore finds that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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 8th day of June, 2018