The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A file review was held on July 12, 2018 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker, a general labourer, filed a claim with the WCB on October 6, 2017, reporting that he injured his upper/mid/lower back in an accident at work on September 19, 2017. The incident was described as carrying a large job box down a set of stairs. The worker noted that after carrying the job box down the stairs, he felt something in his back, "I felt a strain but I just carried on. I continued working. I finished my shift at 3:15 p.m."

The employer reported on their Employer Injury Report filed with the WCB on October 18, 2017, that the worker contacted them on September 20, 2017 to advise that "his back was giving him trouble" and he would not be in.

On September 27, 2017, the worker attended at a doctor's office, reporting being "unable to bend forward due to back pain" and was diagnosed with a musculoskeletal injury. It was recommended that the worker could return to work with modified duties of no lifting heavy objects for a duration of two weeks.

In a discussion with the WCB on October 13, 2017, the worker advised that the job box he was helping to move was about four to five feet long, four feet deep and three or four feet wide and weighed between 80 to 100 pounds. He further advised that his first symptom was a feeling of something moving out of place and numbness. The worker noted that he didn't mention anything to his employer on the day the incident happened but he did take mini-breaks throughout the day to stretch and complain about his back. The worker further advised the WCB that when he woke up the next day, he had trouble walking and had pain in his whole back. The worker noted that he delayed going to see the doctor until September 27, 2017, as he thought he would rest it a few days and be back at work.

On October 23, 2017, the WCB advised the worker that his claim was not acceptable. The WCB noted that because of the delay in reporting the incident to his employer and seeking medical treatment, the WCB had no evidence that a workplace accident occurred on September 19, 2017.

The worker submitted a request for reconsideration of the WCB's decision to the Review Office on October 30, 2017. The worker disagreed with the WCB's conclusion that the delay in reporting the incident to his employer meant he wasn't injured. On December 15, 2017, the Review Office reversed the WCB's decision and accepted the worker's claim. Review Office accepted that, because the worker woke the next day and advised his employer his back was sore, there was evidence of an injury occurring. Review Office determined that the fact that the worker did not seek immediate medical attention did not mean he hadn't sustained an injury. Review Office also accepted that the mechanism of the worker's injury was consistent with a non-specific strain and the evidence supported, on a balance of probabilities, that the worker was injured while performing his job duties.

The employer filed an application with the Appeal Commission on December 19, 2017. A file review was held on July 12, 2018. As this was a file review, neither the worker nor the employer participated in person.

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 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, 

(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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment states:

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 Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

Employer’s Position

The employer appealed the WCB Review Office decision that accepted the worker's claim, indicating that it should be overturned because the worker had a history of a bad back, did not report the injury on the day it occurred or go to see a doctor immediately. The employer questioned the fact that the worker said that he did not have any significant symptoms but then stated he felt something slip and numbness. The employer thought the worker was a drywaller in his spare time and could have been injured doing that work.

Worker’s Position

The worker was self-represented.

The worker reported that, on September 19, 2017, after carrying a job box down stairs, he felt something in his back. He continued working for the balance of his shift. He did not seek medical treatment but rested and took pain relief medication, thinking a few days rest would allow him to get back to work. He went to see a doctor on September 27, 2017. The worker stated that he did not inform his boss of the injury until the next day because he wasn’t aware of the injury until he got up and had trouble walking and had pain in his back.

Analysis

The issue before the panel is claim acceptability. For the employer’s appeal to be successful, the panel must find that, on a balance of probabilities, the worker’s injury was not caused, aggravated or enhanced by an accident that arose out of and in the course of his employment. In other words, the appeal will not succeed if the panel finds that the worker’s job duties were the cause of his injury or that they aggravated or enhanced a pre-existing condition.

The worker stated that, while carrying a heavy box, which was part of his job duties, he felt something in his back. The diagnosis of the doctor of a musculoskeletal injury is consistent with the worker’s report of the injury. The panel finds that the mechanism of injury indicates that the worker suffered a strain-type injury and the evidence supports a conclusion that the injury arose out of and in the course of employment. The worker did not immediately report the injury to his employer but did so the next day, when he experienced pain and difficulty moving. The delay in reporting is consistent with the type of injury which he suffered, which wouldn’t necessarily cause immediate pain and difficulty moving. The delay in reporting the injury to the employer was not unreasonable.

The worker advised that he did not immediately seek medical attention because he believed that a few days’ rest would result in his ability to return to work. In the panel's view, this length of delay is not uncommon and was not unreasonable in the circumstances. The panel finds that the fact that the worker did not seek immediate medical attention did not mean he hadn’t sustained an injury.

The employer noted that the worker had a history of a bad back. However, the panel finds that the current injury is unrelated to and of a different nature than the worker’s prior injury which was a disc injury. The worker had not been under active treatment for the prior injury. The panel concludes that the prior injury has no bearing on the current claim.

Based on our review of all the information before us, the panel is satisfied that, on a balance of probabilities, the worker suffered a personal injury by accident arising out of and in the course of employment. The panel therefore finds that the worker’s claim is acceptable and denies the employer’s appeal.

The employer’s appeal is denied.

Panel Members

K. Gilson, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Gilson - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of July, 2018