Decision #104/18 - 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 May 17, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
In a Worker Incident Report dated August 9, 2016, the worker reported injuring her left lower back, with an incident date of May 2, 2016. The worker described the incident as follows:
Starting in May of this year I starting (sic) working more on the second floor and I was doing bag searches more frequently on tables that are 1 1/2" to 2" above my knees. The table sizes were changed from taller to where they are now sometime in April. I have to bend over in an uncomfortable position because the table is too low. We do switch positions every half hour. The longer I have been doing this the worse my back has gotten.
On August 9, 2016, the worker attended a physiotherapist, who diagnosed her with discogenic lower back pain and recommended that she stay off work for two weeks.
On August 10, 2016, the worker saw her family physician, complaining of pain when moving and bending, difficulty standing for extended periods of time and being unable to lift heavy things. The worker's family physician diagnosed her with mechanical back pain, and took her off work for a period of at least two weeks.
In the Employer's Incident Report dated August 12, 2016, the employer reported that the worker claimed she had ongoing lower back issues "since May 2016 since the roller tables were changed." The employer noted that the worker had also indicated, however, that she had been seeing an acupuncturist for quite some time and that her back did not bother her for about a year or a year and a half when he treated her. The employer said that the worker never reported any injury or issues regarding her back until August 9, 2016. The roller tables were changed out approximately March 2016, and the height difference from the old tables was only an inch or two. The employer stated that no complaints regarding the table heights had been brought forward.
On August 23, 2016, the WCB spoke to two of the worker's co-workers who confirmed that the search tables had been lowered and the workers in that area were supposed to rotate positions every thirty minutes, but that this often did not happen.
On August 19, 2016, the worker attended a follow-up appointment with her family physician, at which time she reported on-going but improving left lower back pain, now with three or four days of shooting pain down her left buttock, thigh and into her left toes. Her family physician provided a new diagnosis of sciatica and noted that the symptoms were consistent with L4-L5 nerve root compression.
At a further follow-up appointment on August 26, 2016, the worker's family physician noted "Significant improvements since last appointment, especially over the last 3-4 days. Still having left lower back pain, and shooting pain down R (right) buttock." The physician noted that the worker was capable of returning to work on August 29, 2016 for short days of three hours, with modified duties such as limited bending and lifting, then progressing to six hour days as tolerated.
On September 9, 2016, the worker had a follow-up appointment with her family physician where she reported progression of pain over the last four days and significant shooting pain down her left leg. The family physician placed the worker off work, to limit lifting and bending, and recommended reassessing her in a week. The worker remained off work from September 12 to 23, and was then on vacation to October 7, 2016. On October 10, 2016, the worker returned to her full work duties.
On October 14, 2016, the employer provided the WCB with a schedule of the worker's hours worked from January to October 2016, with a breakdown of the time she worked in different areas or departments during her shifts.
On October 25, 2016, Compensation Services advised the worker that her claim was not acceptable. Compensation Services noted that the schedule of the worker's hours showed that there was no significant increase in hours from February 21, 2016 onward, and her duties appeared to be interrupted by a variety of tasks throughout the course of her shift. Given the lack of an increase in hours following the change in table height in approximately March 2016, the delay in seeking medical treatment, and no apparent triggering workplace event, Compensation Services was unable to establish a relationship between the worker's diagnosis and her work activities.
On October 26, 2016, the worker requested that Review Office reconsider Compensation Services' decision. The employer provided a submission in response to the worker's request for reconsideration, and the worker responded to that submission.
On January 23, 2017, Review Office determined that the worker's claim was not acceptable. Review Office noted that the worker did not report a specific event that caused her difficulties. While the worker related her difficulties to working in a crouched position while searching bags, Review Office noted that she would be constantly changing positions as she would be standing between searches and moving around.
Review Office placed weight on the worker having worked reduced hours for approximately two months prior to going off work. Review Office also noted that the worker's acupuncturist did not initially advise that they were treating the worker's lower back, and it was only after the worker's claim was denied that he provided information indicating that he also treated her lower back in June 2016. The chief complaint which the acupuncturist treated was still listed as the worker's neck up until August 8, 2016.
Review Office accepted that there was a change to the workplace, but could not find a relationship between the worker's work duties and her worsening back conditions after she discontinued working. Review Office therefore found that the worker's lower back difficulties were not related to her workplace duties.
On October 10, 2017, a worker advisor acting on behalf of the worker submitted additional information and requested that Review Office reconsider their decision. The worker and the employer each provided further submissions which were shared with the parties. On December 14, 2017, Review Office advised that there was no change to their earlier decision.
On December 21, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
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.
The worker was assisted by a worker advisor, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.
The worker's position was that she injured her low back while performing her job duties following changes in her work area, and her claim is therefore acceptable.
It was noted that the worker had worked for the accident employer for 13 years without having any back difficulties until there was a significant change to the bag search area. The worker said that she first noticed her low back symptoms while she was doing searches on or about May 2, 2016, and reported that her injury was directly due to the change in the work area where searches were performed. The evidence showed that the same mechanism of injury was reported to the WCB, the employer and her physician.
The worker described the changes to the work area and to the procedure for conducting searches as of March 2016 in detail. The worker stated that in addition to the table top having been lowered, the changes included that there were now two lanes of rollers leading to the workstation table top, instead of one. At the end of the lane for the bags which were to be searched, there was a 6" high metal stopper which could not be moved. The worker had to physically lift the bags over the metal stopper and place them on the table where she would conduct the search. She would also have to turn and check a computer monitor to analyze a screen image of the bag before searching it. The worker stated that after the changes, the onus was on one person to search all the bags which had to be searched. She would also have to reach across the two lanes to collect empty bins from the far lane, so they could be returned to the front.
The worker advisor submitted that this was a significant change to the work area and the way the work had to be performed, and that given the worker’s tall stature, this accounted for her specific left-sided low back injury. The worker described how she would be crouching down because of the lowered table top, bending her back awkwardly, lifting bags which would be very heavy over the stopper, analyzing the image of the bags and searching them, all while she was hunched over.
It was submitted that the medical evidence and the worker's testimony supported that her paraspinal muscular injury was medically accounted for with respect to her work duties. The August 10, 2016 report from her family physician confirmed that the worker's left-sided low back symptoms were related to the changed configuration of the bag search area and the significant bending and lifting at work. The physician provided a diagnosis of a left lumbar paraspinal muscular injury, and removed her from her employment due to her injury as of August 10.
It was submitted that the relationship between the worker's employment duties and her lower back injury were supported by statements from co-workers. Those statements confirmed that the table was too low, being just above knee level, and was very hard on the back. They confirmed the added element of lifting and reaching across to the other lane to grab the bins, and that other people had also complained about the changed height of the bag search table and experiencing back pain working in this area.
The worker advisor noted that the WCB historically looks for a change in work duties and whether there is a specific work action which is responsible for a workplace injury. It was submitted that in this case there were both, being the change to the work area which then required the reaching and lifting actions with each bag search.
It was submitted that continuing to work in that environment from March through August 2016 caused repetitive strain injuries and accounted for the worker eventually having to be off work. The worker advisor submitted that there did not have to be a specific accident on which to accept a claim. The diagnosis of a paraspinal muscular injury was a repetitive type of injury related to the employment, which satisfied the definition of an accident under subsection 1(1)(b)(ii) of the Act, and the worker's claim should therefore be accepted.
The employer was represented by legal counsel and by its general manager. Legal counsel made an oral submission at the hearing and the employer's general manager responded to questions from legal counsel and the panel.
The employer's position was that the evidence did not support that the worker's difficulties arose out of and in the course of her employment, and her claim should not be accepted.
Legal counsel submitted that the worker's duties were not repetitive. The worker did not have to search bags and bend over all day. Her timesheets showed that in May 2016 she worked an average of 1.9 hours per day in the area in question, and rotated between five different positions in that area. In the bag search position itself, she was not searching all bags, but only those which were singled out by another worker. Starting in May 2016, her hours also decreased to 24 to 30 hours per week, as opposed to 40 hours per week.
In response to questions from legal counsel, the employer's general manager stated that the workers rotated between all five positions in the area in question, although there was only one position where the operator was mandated to rotate every 30 minutes. The general manager stated that the timesheets would only indicate the area or department where the worker was deployed during the workday, and not the position she was working in when she was there.
The general manager said that the worker's evidence with respect to the variance in tables from the previous configuration was correct; that a new process and procedure were introduced which also impacted technology and the configuration of the table makeup. There were now split lane tables, with a variance in height of approximately 2" from the crown down to the table at the end. The general manager stated that the only other change, as indicated, was that there was now a secondary lane, from which empty bins would be retrieved by the worker. He described the particular duties as involving more repetitive duties, as opposed to repetitive motion.
The employer's legal counsel submitted that the evidence showed there were no major changes to the work configuration in March 2016. The only real change was that the search tables were lowered approximately 2", which was not a big difference. Further, while the changes to the tables were made in March 2016, the worker only started having pain in May 2016. There was therefore no link between the tables being changed and the worker's pain which was said to have started more than two months later.
Legal counsel also noted that the accident was not reported to the employer until August 2016, or three to four months after the worker said she started having pain. The worker was on vacation from August 1 to 5, 2016, and only reported her injury when she returned to work from her vacation. It was submitted that the worker's injury or worsening of her pain was therefore not related to her job duties but to her vacation, and the claim was therefore not acceptable.
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. The panel is able to make that finding, for the reasons that follow.
Based on all of the evidence, on file and as presented by the parties at the hearing, the panel is satisfied, on a balance of probabilities, that the worker suffered a lower back injury as a result of her work duties, consisting of discogenic lower back pain as diagnosed by the treating physiotherapist, and/or a left paraspinal muscular injury as diagnosed by her physician.
The panel finds that the worker's injury is consistent with the mechanism of injury as described, including in particular, lifting heavy bags over a 6" stopper or barrier. While much of the focus in this case has been on the lowering of the height of the table top by 2", the panel places greater weight on the addition of the metal stopper which resulted in the worker having to lift the bins and bags over the stopper, rotate and place them down on the table so they could be searched. Based on the detailed description of the worker's movements, the panel is satisfied that this also required an awkward, twisting motion.
The panel notes that the worker advised at the hearing and the general manager confirmed that the fixed metal stopper has since been removed and replaced with a metal bar which workers can lift, so that they are able to slide the bins or bags over to be searched. Workers therefore no longer have to pick up and lift items over the stopper.
The panel acknowledges that a lot of information was provided with respect to the worker's hours and the time she spent working in different areas in the workplace. The panel has carefully reviewed that information. The parties acknowledged at the hearing that the focus in this case is on only one of the five positions within a particular area or department. The evidence indicated that the worker spent an average of approximately two hours per day working in that area. The evidence also indicated that there were five different positions in that area and that workers would rotate through these positions to a greater or lesser extent. There was no breakdown, however, as to which position the worker was occupying when she was working in that area or how much time she spent working in the bag search position in particular between March and the end of July 2016. In response to a question from the panel as to whether she would have spent more time in any one position that another between April and June 2016, the worker said that was why she told the first adjudicator that it felt like she had worked more in the bag search position in May, which was when her back started to feel sore.
Based on our careful review of all of the evidence, the panel is satisfied, on a balance of probabilities, that the worker's job duties in the time leading up to her going on vacation at the end of July 2016 were sufficient to result in her workplace injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a lower back injury by accident arising out of and in the course of her employment. The worker's claim is therefore acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of July, 2018