Decision #109/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on July 3, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
On March 19, 2018, the worker, an apprentice electrician, reported to the WCB that he injured his low back and right hip in an incident at work. He reported that around the end of January 2018, he was twisting, lifting and leaning out of a lift to place wire, then was shoveling the following day, and his pain became worse every day after that.
On January 22, 2018, the worker was seen by a chiropractor, who noted that the worker had back pain for five months, worse in the past week. The worker reported he was working on a forklift on January 18, 2018, doing a lot of lifting and pulling wire, and hurt his back. The chiropractor diagnosed the worker with acute low back pain and bilateral leg pain due to discogenic nerve root pressure.
On February 13, 2018, the worker attended for an initial physiotherapy assessment. The worker reported that he had right lower back pain from shoveling and lifting, and it was indicated that this was an insidious onset injury which just got worse. The physiotherapist diagnosed the worker with sacroiliac joint dysfunction due to glute weakness and possibly repetitive motion, and a mild L4-S1 sprain.
On February 17, 2018, the worker attended at a hospital emergency department complaining of low back pain for two months, which he related to lifting heavy objects at work, and was diagnosed with low back pain.
On March 9, 2018, the worker was seen at a minor injury clinic. He reported that for the past two months he had been experiencing pain to his lumbar spine that radiated to his left and right groin and thighs. The treating physician diagnosed him with mechanical lower back pain.
On March 21, 2018, the WCB adjudicator spoke to the worker about his claim. The worker advised that he had pain at the end of January, and while he did not officially report his injury, he mentioned to his co-worker/journeyman that he was having pain in his back when they were sitting in the car. He sought treatment through his benefits, but the pain became worse the more he worked, and he officially reported his injury to the employer on March 8, 2018. He also advised that he did different job duties every day, and more twisting was involved at the end of January 2018. He indicated that the mechanism of injury involved running electrical wire and shoveling snow. In another discussion with the adjudicator on March 23, 2018, the worker provided further information with respect to his job duties, and clarified that he was running wire for three hours on January 18, 2018 and was shoveling snow at the end of that month.
On March 28, 2018, the WCB spoke to the co-worker/journeyman whom the worker had identified. The journeyman confirmed that the worker mentioned his back pain to him around January 18, 2018. He remembered one particular day where the workers were working off the lift and had to get into bad spots to reach things by twisting and turning. He said they were twisting a little bit more that day due to the equipment which was involved, and the worker complained of back pain the next day and kept saying his back was getting worse. The journeyman also advised that he tried to lighten the worker's duties as he knew the worker's back was sore.
At a follow-up appointment at the minor injury clinic on April 9, 2018, the worker reported to the treating physician that he felt he had been "getting better over the past few days" and could return to work on light duties. The physician provided restrictions of no lifting greater than 10 to 20 pounds, sitting, standing and walking as tolerated, and for the worker to avoid lifting from the floor to his waist, to be in place until May 11, 2018.
On April 11, 2018, the worker further advised the WCB that he did not have pain before January 18, 2018, and that his job duties on January 18 also included moving three large spools of wire by himself, weighing over 70 pounds each.
On April 24, 2018, the WCB's Compensation Services advised the worker that they were unable to accept his claim, as they could not establish a relationship between his current difficulties and an accident occurring in the course of his employment.
On April 27, 2018, the worker contacted the WCB to clarify some of the information on his claim. The worker indicated that he had previously experienced back pain on and off, but the specific pain which started around January 18, 2018 did not go away and started getting worse and worse. He said the week of January 18, 2018 was when he did something abnormal, but his back was fine before that. On May 11, 2018, Compensation Services advised the worker that the information he provided was reviewed, but the decision that his claim was not acceptable remained unchanged.
On September 5, 2018, the worker requested that Review Office reconsider Compensation Services' decisions. The worker noted that he kept working and did not report his claim until March 8, 2018 because he was afraid of a possible lay-off due to reporting a claim for back difficulties and did not want to anger his employer as he had already made a claim for a wrist injury.
On October 24, 2018, Review Office determined that the worker's claim was not acceptable. Review Office found that variations in the file information, and the worker's delay in reporting the workplace incident to his employer, made it difficult to establish a relationship between the worker's low back and hip complaints and the work he performed on January 18, 2018. Review Office found that the different and expanding duties provided by the worker suggested that he was unclear as to the cause of his symptoms. Review Office also placed weight on the worker's delay in reporting the workplace incident to his employer, his delay in seeking medical treatment, the attending healthcare providers' reference to low back pain pre-dating January 18, 2018, and the treating physiotherapist's initial assessment that there was no work causation.
On January 20, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing 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 220.127.116.11, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation, and states, in part, that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
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.
The worker was self-represented and was accompanied by his spouse at the hearing. The worker provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker maintained that he was injured at work on January 18, 2018 and his claim should be accepted.
The worker stated that he noticed severe back pain at the end of the workday on January 18, 2018. He said that when he sat down in the company truck, he felt a sharp pain in his back. He told his journeyman who was with him that he could not sit properly and his back was killing him. He went to work the next day, but could not do much. His journeyman said he should go see someone, so he went to see the chiropractor on Monday, January 22, 2018.
The worker said the chiropractor asked him if he had ever had back pain before. The worker said he told the chiropractor he had a sore back on and off over the previous five months, as it is hard work and they always have back pains at work, but the pain on January 18 was nothing like that and it would not go away. The worker said the chiropractor treated him right away on January 22, by adjusting his back, and he went for several treatments after that. The first two treatments helped, but then his back kept getting worse and worse, and started affecting his hips and legs.
The worker said he tried to treat himself and to find help where he could. He thought his back pain should go away with treatments, and he could not afford to take time off. His journeyman knew his situation and gave him light duties and helped him at work. As his back was not getting better, he and his journeyman went to see the employer's safety officer on February 13, 2018 to tell him the worker could not do heavy work anymore. The safety officer told the worker to take a few days off, and he stayed off work from February 14 to 16. On February 17, 2018, he went to the hospital emergency department for further treatment and medication. The worker said that he kept working as long as he could, until March 8, 2018, when the pain was so bad he could not do anything and his journeyman told him he could not keep working and had to make a claim to WCB.
The worker said that he told the WCB from the beginning that he had not paid attention to exactly when he was hurt or what he was doing at the time. When he first reported his injury, he remembered that he had been pulling and clipping wires. He said he told the adjudicator everything he remembered doing, that he had been working a lot in the lift, which involved significant twisting, leaning out and working around various obstacles. When asked by the WCB to specify the date of the injury, he was able to identify the date as January 18, being the Thursday following his wrist claim and before his January 22 chiropractor visit. He later remembered that he had also carried spools of wire the day he was hurt. The worker stated that he kept calling the adjudicator when he remembered things he had been doing at the time which could have contributed to his injury. He said that he could not point to any specific thing, just that he lifted and twisted the wrong way, and all he knew was that at the end of the day on January 18, 2018, he could not sit properly and had a sharp pain in his back.
The employer did not participate in the appeal.
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 his employment. The panel is able to make that finding, for the reasons that follow.
Based on our review of all of the evidence before us, on file and as provided at the hearing, the panel is satisfied, on a balance of probabilities, that the worker suffered a workplace injury to his lower back on or about January 18, 2018 and that his claim is acceptable.
The panel finds that the worker was consistent in reporting that something happened on or about January 18, 2018. While the worker could not point to a particular task or action that day which caused his low back pain, the panel finds that this is not fatal to his claim. At the hearing, the panel carefully reviewed with the worker the tasks he was performing at the time. The panel accepts the worker's evidence that these tasks involved a significant amount of heavy lifting and twisting and turning in awkward positions, and his submission that a workplace injury occurred on or about January 18, 2018.
The panel is satisfied that information obtained by the WCB from the worker's co-worker/ journeyman supports that something happened to the worker's back on or about January 18. The journeyman's account of the nature of the job tasks on that day, the "bad spots" the workers had to get into, and the twisting and turning that was involved in performing those tasks, is consistent with and supports the worker's evidence.
With respect to concerns regarding a delay in seeking medical attention, the panel notes that the worker attended the chiropractor on Monday, January 22, 2018, being four days after the date of incident. The panel accepts the worker's evidence that he received treatment for his back on that date, in addition to further treatments for his back on January 31 and at four or five more visits between February 3 and February 12, 2018. Medical information on file further indicates that the worker attended an initial assessment with the physiotherapist on February 13, 2018. The panel does not accept that there was a significant delay in this regard.
With respect to concerns regarding a delay in reporting to the employer, the evidence further shows that the journeyman, who supervised the worker, was aware of the worker's injury at or about the time it occurred. Information on file, including copies of text messages provided in advance of the hearing, support that the employer's safety officer was also made aware of the worker's back difficulties by February 13, 2018.
The panel notes that while there are references to the worker having back issues prior to the January 18, 2018 incident, we are unable, based on the information which is before us, to assess whether the worker had any pre-existing back conditions or what effect any such conditions may have had on the worker's injury or any ongoing back difficulties.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a low back injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of August, 2019