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 is not acceptable. A hearing was held on April 24, 2019 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 April 3, 2018, the worker reported that she injured her lower back at work on February 20, 2018, as follows:

As I was picking up a bag of groceries from the floor to put it on the counter, I felt a sharp pain in the middle of my lower back.

The pain travelled from my lower back down both legs.

There is numbness and tingling in both legs after sitting and then trying to get up.

I finished my shift.

The bag was about 50lbs.

I returned to work March 7 and was able to do full duties. On March 12 I lifted something and felt a sharp shooting pain in the middle of my lower back. I almost fell to the floor, I was not able to walk.

An ambulance was called.

The worker attended at a local emergency room ("ER") on February 21, 2018, complaining of lower abdominal cramps, dysuria and right flank pain for two to three days. She was diagnosed with a urinary tract infection, prescribed antibiotics and discharged.

On March 12, 2018, the worker was taken by ambulance to another local ER where she reported a two week history of back pain, and having developed "sudden sharp cramping abdominal pain" that day. The ER physician noted "Mild diffuse abdominal pain but otherwise benign. No CVA [costovertebral angle] tenderness. Some decreased strength 4/5 to right hip flexion and knee flexion due to pain. Exam otherwise unremarkable." The worker was diagnosed with abdominal pain and a possible urinary tract infection, and was prescribed antibiotics. The physician noted that the worker was pregnant at the time and suggested that the abdominal pain was "Most likely due to spasms of round ligament or compression of enlarged uterus against peripheral nerves."

The worker also attended at her family physician's office on March 12, 2018. A Doctor First Report, filed April 10, 2018, indicates that at the March 12, 2018 visit, the worker reported lower back pain with mechanical movement. The physician provided a diagnosis of a "sprain of back NOS [not otherwise specified]," and noted normal clinical findings. No description of an injury or incident was provided.

The worker saw her family physician again on April 3, 2018. In a Doctor First Report relating to that visit, the date of accident was noted as February 20, 2018 and the accident was described as picking up groceries from the ground and experiencing an acute onset of lower back pain. Subjective complaints, as reported, were "tender to paraspinal muscles lower back and with any L [left] spine ROM [range of motion]." The family physician diagnosed the worker with sciatica, referred her for physiotherapy and recommended she remain off work for eight weeks.

On April 9, 2018, the worker attended for an initial physiotherapy assessment, at which time she reported constant pain, tingling and numbness, limited tolerance for any position and an inability to sleep. The physiotherapist diagnosed the worker with L5 discogenic pain, and noted the worker was to remain off work for two months, as per her physician, and that a return to work was not appropriate at that time.

On April 18, 2018, a WCB sports medicine advisor reviewed the worker's file and opined:

1. The medical information from a February 21/18 ER visit concerns abdominal pain and urinary symptoms. Treatment was administered for a urinary tract infection. There is no mention of a back injury the day prior and no medical information regarding the low back.

2. …While the MOI [mechanism of injury] could be consistent with a low back strain type injury, there is no objective medical information on which to confirm an initial diagnosis.

…

4. On March 12/18, there is a medical report noting a diagnosis of a back sprain with low back pain with movement and normal clinical findings. An ER report from the same date indicates that she was again treated for a urinary tract infection. Pain limited right hip flexion/knee extension is noted but the exam is otherwise reported to be unremarkable. With regards to her back, a diagnosis beyond a minor strain is not demonstrated.

5. To the extent that the Feb. 20 and Mar. 12/18 episodes at work caused an injury to her low back, it would be as minor strain type injuries, of which the anticipated recovery period is a few days up to a couple weeks. Concomitant pregnancy and urinary tract infections would also be contributing factors to her back pain. Disability at this point in time, however would not be medically accounted for in terms of these minor strains from February and March 2018.

By letter dated May 17, 2018, Compensation Services advised the worker that they were unable to accept responsibility for her claim. Compensation Services found that given the delay in reporting to the employer and the medical information obtained from February 21 and March 12, 2018, they were unable to establish a relationship between the worker's current diagnosis and an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act").

On July 11, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the evidence supported a relationship between her lower back difficulties and the incidents on February 20 and March 12, 2018 and her claim should be accepted. The worker stated that diagnoses from her family physician and her treating physiotherapist supported that her difficulties were related to the workplace incidents. She said that she sought treatment on February 21, but the ER physician was more concerned with her urinary tract infection than her low back pain. She noted the March 12 ER report referred to a two week history of low back pain, worse with exertion, and the WCB sports medicine advisor confirmed that the mechanisms of injury were consistent with her job duties and the diagnosis of a back strain.

On August 1, 2018, Review Office upheld Compensation Services' decision that the worker's claim was not acceptable. Review Office noted that the worker had not provided the employer with a specific description of a workplace accident until April 3, 2018. Review Office placed greater weight on the evidence immediately following the reported incidents, in which the worker did not know the cause of her back pain or relate the cause of her back pain to her work. Review Office concluded that the evidence did not support a relationship between the workplace incidents and the worker's difficulties.

On August 20, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by 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 44.05, Arising Out of and in the Course of Employment, states, in part:

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.

Worker's Position

The worker was self-represented, and was provided with the services of an interpreter. The worker made a presentation and responded to questions from the panel with the assistance of the interpreter.

The worker submitted that the evidence on her claim had not been properly interpreted as she was certain she was hurt at work, and her claim should be accepted.

The worker noted that in February 2018, in addition to doing her own work, she had to fill in for another worker who was on leave. She said things were a mess and she had to do everything, including laundry and putting groceries away. She had to lift heavy burdens, and that was when she felt something cracking in her back. The worker said that even though she was pregnant, she managed to finish all the work she had to do on February 20, 2018, but when she got home, she was in considerable pain and went to the ER the next day.

The worker said that when she attended the ER on February 21, 2018, she told them she was suffering with back problems, but the nurse and doctor did not listen or understand her. They asked if she was pregnant, and determined she had an infection. They then focused on the infection, even though she told them that was not why she was there, and they gave her a prescription for the infection. She noted that the doctor said they could not do anything about her back, as she was pregnant and an x-ray would not be good for the baby.

The worker said that the attending doctor gave her one week off work. She returned to work on March 7 and worked through to March 12, 2018, when her co-workers had to call an ambulance and she was taken to a second ER. She told the doctor at that ER that she was there because of her back, and he said she might have a problem with her disc, but they could not do anything because she was pregnant and she could not have an x-ray. They told her to see her family doctor and to go for physiotherapy. The worker said that her treating physiotherapist subsequently told her she had a disc problem and had probably hurt her back while lifting heavy things.

The worker said she called her employer following her first injury and explained her back problems, and they told her they would have the WCB papers prepared for her to sign. She waited for those papers, but did not receive them. At that point, she called the WCB and filed her claim.

The worker stated that she had no problems with her pregnancy. Her problem was, and still is, her back. The worker noted that the birth of her child was ultimately very difficult because of her back problems. The worker submitted that if the problem had been her pregnancy, things would have improved after the birth of her child, but she still has back pains.

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 be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. In order to do so, the panel must find that the worker's low back difficulties are causally related to her work duties. The panel is unable to make that finding.

The panel finds that early medical reports on file do not support that the worker suffered a workplace injury. The panel notes that we would have expected to see low back problems identified early on in the medical reports and the worker being tested for such problems by a number of people, even if an x-ray was not possible. Medical records from the ERs which the worker attended on February 21 and March 12, 2018, however, are silent in this regard. The emergency treatment record from February 21, 2018 identified the reason for the visit as pregnancy issues, and the diagnosis as urinary tract infection. The emergency treatment record from March 12, 2018 reports the reason for the worker's visit as abdominal pain, and provided a similar diagnosis of urinary tract infection.

In her submission to the panel, the worker commented that the attending ER practitioners were not listening to her or understanding what she was saying or why she was there. The panel places little weight on this comment, which appears to have been raised for the first time at the hearing. The panel expects that if the worker had presented with such complaints, they would have been recorded and investigated.

The panel notes that the Doctor First Report from the worker's family physician relating to her visit on March 12, 2018 did indicate that the worker was complaining of lower back pain with mechanical movement and provided a diagnosis of a back sprain (not otherwise specified). No reference to a workplace injury or incident was provided, however, and the report was not filed until April 10, 2018.

Information on file shows that the first reference to the worker having suffered a workplace injury was on April 3, 2018, in the Doctor First Report which was filed following the worker's visit to her family physician on that date. The worker also reported her injury to the WCB on April 3, 2018, which was six weeks after the initial date of incident.

The panel finds the lack of a reference to a workplace injury closer in time to the workplace incidents to be significant. While the worker indicated at the hearing that she was waiting for the employer to prepare the WCB forms and that this was why she did not file a claim earlier, the panel finds that this is not consistent with the information on file.

In this regard, the panel notes that copies of text messages and emails on file show that the employer had asked the worker more than once whether she suffered a workplace injury and whether she was filing a WCB claim. In a text message on February 26, 2018, the employer's Assistant Director wrote: "…did you injure yourself at work?" In response, the worker wrote that "The pain started on Tuesday last week at work because I was feeling pain on my back and my lower stomach and I took Tylenol to finish the end of the day. The next day I went to the hospital, and they said that I probably lifted heavy objects to have back pains…" The Assistant Director responded by email on February 27, 2018, stating: "…you state you may have lifted something heavy - was this during work hours and if so will you be filing a claim through worker's compensation?" In a further email later that day, the Director for the employer wrote, in part: "I am assuming this is not a workers comp claim as you have not advised me this was an injury at work."

The evidence further shows that the worker was uncertain as to the cause of her injury, and did not provide an accident description until April 3, 2018. As indicated above, in the February 26, 2018 text message to the employer, the worker stated that the hospital said she probably lifted heavy objects to have back pains. In her initial conversation with the WCB adjudicator on April 5, 2018, she similarly stated that the ER physician on February 21, 2018 suggested that "most likely her back was sore because she might have lifted something heavy," and that the ER physician on March 12, 2018 told the worker she "may have lifted something heavy." She further noted that her family doctor had told her on April 3, 2018 that "she must have lifted something heavy to cause the pain in her lower back." The panel notes that these comments are entirely speculative.

When the adjudicator asked the worker on April 5, 2018 what had happened, the worker said she thought it was a flour bag or maybe a watermelon that was heavy, and she felt some back pain after the groceries were unloaded. She said that her back hurts if she does laundry or groceries. She also said that there was no specific movement on March 12, 2018 but that the laundry basket is heavy to carry.

The panel notes that the worker further commented at the hearing that her workload had increased in February 2018 due to a co-worker being on leave. The panel is unable to place any weight on this comment, which was again raised for the first time at the hearing and is not supported by any information on file.

Based on the foregoing, the panel is unable to find that the worker's low back difficulties are causally related to her work duties. As a result, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her employment, and her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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 21st day of June, 2019