Decision #18/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on December 19, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On April 23, 2019, the worker reported to the WCB that he injured his lower back at work on April 12, 2019. He described the injury as "I was cranking the landing gear of the trailer and I felt a sharp pain in my lower back to the right leg. I continued working and finished my trip." The Employer's Accident Report, filed April 24, 2019, noted that the worker reported that on April 12, 2019, "He was cranking the landing gear for a trailer and injured his back."
On April 20, 2019, the worker attended at a local urgent care centre, where he reported that he was turning a crank approximately eight days ago and began to experience low back pain several hours after exertion. The worker noted the pain was in his lower lumbar area and radiated into both of his legs, particularly on the right. He further reported "…having significant pain which is limiting his ability to move" and "for the most part he has been in bed for the last several days." The urgent care physician noted the worker advised that he had a previous back injury in 2017 which laid him up for approximately three months, and that he had an MRI which demonstrated disc herniation in his lower spine. The worker was prescribed medication for pain relief and muscle relaxants and was told to follow-up with his family physician.
The worker saw his family physician later in the day on April 20, 2019. The family physician noted the worker's complaints of acute low back pain, which increased with walking, bending and prolonged sitting. The physician reported findings on examination of no spinal tenderness, paravertebral muscle spasms in the lumbar region and decreased forward flexion, and diagnosed the worker with an acute lumbar sprain.
On April 26, 2019, a WCB adjudicator discussed the claim with the worker. The worker confirmed the mechanism of injury and that he returned home early in the morning of April 13, 2019. He advised that he rested over the weekend, and by the morning of April 15, 2019, his pain was worse and he was not able to walk. He said he called the employer to report the injury. The worker stated that he applied heat and had a friend perform a traditional treatment on him. He attended the urgent care centre on April 20, 2019, then followed up with his family physician that same day. He advised the adjudicator that currently his back was better, and he was able to move around. He said his employer had not offered him light duties.
On May 28, 2019, Compensation Services advised the worker that his claim was not acceptable as the evidence did not support he had an injury which arose out of and in the course of his employment. Compensation Services advised that based on their review of the claim information, and the worker's delay in reporting his injury to his employer and in seeking medical attention, they were unable to establish a causal relationship between the worker's lower back difficulties and his employment. Compensation Services therefore found that they were unable to accept responsibility for his claim.
On May 28, 2019, the worker requested that Review Office reconsider Compensation Services' decision. In his submission to Review Office, the worker noted that when he had previously injured his back in 2018, he had gone through physiotherapy for four months but it did not help, so he went for "tradition (sic) heat treatments" which had helped a lot. He decided to go with the same heat treatment on April 15, 2019, thinking he would heal quickly with it. After using the heat treatment for a week, however, he realized it was not working, so he went to the urgent care centre and sought treatment from his family physician. The worker further noted that when he arrived home the morning of April 13th, he decided to rest for the weekend as he had the weekend off, and when he did not feel better on Monday, April 15, he told his employer about the incident.
On June 5, 2019, Review Office determined that the worker's claim was not acceptable. Review Office accepted the worker's evidence that he was injured at work on April 12, 2019, but found that he continued working and did not report the incident to his employer until April 15, 2019. Review Office also acknowledged the worker's report that he initially attempted to self-treat his symptoms, but found there was a considerable delay in seeking medical attention and in reporting his injury to the WCB, which impeded their ability to establish a relationship between his lower back complaints and the performance of his work duties on April 12, 2019.
On June 18, 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.
Subsections 1(1) (the definition of "accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered "personal injury by accident arising out of and in the course of employment." Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
WCB Policy 22.214.171.124, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating claims 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. The worker made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that he suffered a lower back injury while cranking the landing gear of the trailer he was delivering, and his claim is acceptable.
The worker submitted that the equipment he was operating had not been properly maintained, making it much harder to lower the legs to the ground. He had to crank hard, and it took him more than ten minutes to do what usually took him 30 seconds. While cranking, his back started to hurt. He could feel the pain going from his back to his legs, but he had to keep going. He said he still had to do the job properly and on time, because he had promised to do so. He said it did not matter what he had to go through, as that is how the transportation industry works.
The worker said that after he lowered the trailer legs, he switched trailers and somehow made it back home, taking painkillers all the way. When he got home, he could not get up and out of bed for two weeks, and his spouse had to do everything for him.
The worker disagreed with the decision to disallow his claim. In his appeal form, he submitted that at the very least, the WCB should have compensated him and covered his pay for the time he was left on hold, up until the adjudicator told him his claim was not approved. He said that if the WCB had to decline his claim, they should have done it in a week or two.
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 unable to make that finding, for the reasons that follow.
The panel notes that the worker's reporting of the mechanism of injury, where he had difficulty cranking the landing gear on the trailer, is generally consistent throughout the file. The panel accepts that the incident occurred. Based on all of the information which is before us, however, the panel is unable to accept that the worker was injured as a result of that incident.
In arriving at our decision, the panel finds that there were significant delays in reporting the incident or injury and in seeking medical attention. The worker did not report an injury to the employer at the time of the incident. He continued working, switched the trailers and drove well over 800 km home. The worker did not tell the employer he had hurt his back until the following Monday, April 15, 2019, when he was scheduled for his next shift. The worker then waited until the following Saturday, April 20, to seek medical attention, and it was not until three days after that, on Tuesday, April 23, that he filed his claim with the WCB. The panel finds that these gaps in time were significant and make it more difficult to establish a relationship between the worker's lower back difficulties and the April 12, 2019 incident.
The worker said he continued working on April 12, 2019 because he had to get the job done and get home, but this does not explain why he did not report an injury at the time of the incident or soon after it. The panel notes that in the Worker Incident Report, the worker stated that the reason for the delay in reporting and in seeking medical treatment was that "It was not that bad at first." The panel has difficulty reconciling that statement with the worker's evidence that he could not get up and out of bed for two weeks following the incident.
With respect to the delay in seeking medical attention, the worker indicated that he opted to try traditional heat treatments, which he said had helped a lot with a previous back injury. The worker described those treatments at the hearing as applying heat and ice to his back, which he would do himself. The worker indicated that he decided to try heat treatments as opposed to considering physiotherapy, as physiotherapy had been ineffective in treating his previous back injury. The panel noted that the worker's evidence with respect to physiotherapy treatments was inconsistent, with the worker having also indicated at one point that the previous treatments were effective and having said that the WCB could have at least still approved physiotherapy on this claim and he could have tried it again.
The panel finds that there is a lack of clinical evidence to support the worker's claim for a lower back injury as related to the April 12, 2019 incident. The worker stated in this evidence at the hearing that at the initial appointment with his family physician:
…he looked into the history, there's an x-ray available for the back from the last year, and he says it's the same thing because he touched it and he felt. The pain was similar to what happened the last time, so he examines it, it's going to be the same. And he says there's no need of x-ray this time, because he knows.
The evidence shows that the worker had two previous claims for back difficulties, in 2017 and 2018 respectively, which he said were accepted by the WCB. The panel is satisfied that the worker would have known the process for reporting to the WCB and the need to report an injury in a timely way.
The worker also acknowledged at the hearing that he had been paid benefits under the two previous claims. The worker said that in this instance, he was scheduled to do two or three shifts in each of the two weeks following the April 12, 2019 incident, which he missed and for which he was not being paid or receiving sick pay. In spite of this, he did not file a claim with the WCB until more than 10 days after the incident.
In conclusion, based on our review of the available evidence, the panel is unable to find that the worker's low back difficulties were causally connected to the workplace incident on April 12, 2019. The panel is further unable to find that the incident aggravated or enhanced his pre-existing low back condition.
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 his employment. The worker's claim is therefore not acceptable and he is not entitled to benefits under the Act.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of February, 2020