The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on February 18, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on February 6, 2019 reporting that he injured his lower back in an incident at work on February 4, 2019 when he was “…pulling a wheeler through heavy snow…” and “…felt a sharp pain in my lower back.”

The worker sought medical treatment at a local emergency department on February 6, 2019. The emergency physician noted that the worker had back pain that “…started yesterday after he lifted heavy boxes at work” and diagnosed the worker with low back pain. It was noted that the worker had a pre-existing herniated disc. Pain medication was provided and it was recommended the worker follow-up with his family physician.

On February 11, 2019, the employer’s representative advised the WCB that the worker had not reported an accident to the employer. The representative noted that the worker had requested a personal day on February 5, 2019 then contacted the employer on February 6, 2019 to advise he would not be at work as he hurt his back. In a further conversation with the employer’s representative on February 13, 2019, the WCB was advised that the employer was contacted by the worker on February 6, 2019 who advised he would not be in as he hurt his back and the employer provided the worker with forms offering modified duties.

In a discussion with his WCB adjudicator on February 13, 2019, the worker advised that he did not recall a specific incident that caused his lower back injury on February 4, 2019 but that due to heavy snow on the ground, he had to pull a dolly through the snow and believed that was what caused the injury to his lower back. He confirmed that he had requested February 5, 2019 off as a personal day and noted that his back got worse throughout the day on February 5. He called an ambulance and was taken to a local emergency room. He was examined by a doctor, who provided him with medication. The worker advised that he contacted his supervisor while at the hospital to let him know he would not be in to work the following day. The WCB adjudicator asked if the worker had been provided with modified duties by the employer and the worker advised he had not but he would not have gone in to work if he had been. The worker further advised that he remained off work but would be having a functional abilities form (FAF) completed by a physiotherapist at an upcoming appointment.

On February 19, 2019, the worker was advised that his claim was not acceptable. The WCB determined that an accident arising out of and in the course of the worker’s employment could not be established due to the delay in reporting the incident to the employer, the inconsistencies in the worker’s reporting and the medical information on file.

The worker requested reconsideration of the WCB’s decision to Review Office on February 22, 2019. The worker noted in his request that he injured his back at work and has continued to have symptoms since the accident on February 4, 2019.

Review Office determined on March 19, 2019, that the worker’s claim was not acceptable. Review Office could not find evidence to support the worker suffered an injury in the course of his job duties. Review Office found that the worker reported three different versions of the accident that led to his back injury and that the worker reported “nothing out of the ordinary” when he woke on February 5, 2019. Review Office noted that the worker reported to the WCB and the treating emergency department doctor that he injured his back on February 4, 2019 however, he did not report the injury to his employer until February 6, 2019 after requesting a personal day on February 5, 2019 and not reporting the injury to his employer.

The worker’s representative filed an appeal with the Appeal Commission on October 30, 2019. An oral hearing was arranged.

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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides 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.

WCB Policy 44.10.20.10, 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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation, a written copy of which was also provided to the panel. The worker responded to questions from his representative and the employer’s representative, and from the panel.

The submission provided that the claim should be acceptable because evidence supports that the worker suffered an injury after an increase in pulling activities at work as a result of significant accumulated snowfall and winds that occurred on and around the injury date of February 4, 2019.

As a result of the snow accumulation and drifting, the worker needed to pull/drag his two-wheel cart/dolly rather than push the cart as he normally would on a flat and unobstructed path. The worker claims to have had thirteen to sixteen deliveries on that day. He noticed his back pain part way through his shift but felt it would subside.

The worker took a personal day to visit a relative in the hospital on February 5, 2019. At the time of requesting the day off, the worker did not have debilitating pain symptoms. The worker self-treated his pain symptoms he did have with stretches and a hot shower in the morning of February 5, 2019. The pain worsened throughout the day, resulting in his ability to ambulate being compromised. He called for an ambulance to obtain immediate medical attention. The medical records show that he was treated with pain medications and advised to rest for 3-5 days and to follow up with his physician.

The worker reported his injury prior to his February 6, 2019 shift. During the hearing, the worker stated that he did not claim his injury was from lifting heavy boxes to the emergency room physician. He hurt his back dragging/pulling what turned out to be a heavy load that was a result of the snow accumulation and not from the product on his cart.

The worker first noticed his back pain on the injury date of February 4, 2019 came from a particular delivery at a location that had a longer and obstructed pathway. The worker completed his shift with multiple deliveries using his two-wheel cart in the snow. He felt his back pain was the result of an accumulation of the effort and strain he went through to deliver his product on that day.

Employer's Position

The employer’s representative participated in the hearing by teleconference. The representative requested that the decision to deny entitlement to claim benefits be upheld. The basis for this position was that there was no clear mechanism of injury to support the injury arising out of and in the course of employment.

The representative noted inconsistencies in the worker’s injury report and a delay in reporting the injury as further reasoning to not accept the claim.

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 an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel was able to find that the claim is acceptable, and that the injury was a result of the worker’s employment activities.

The worker's representative and the panel questioned the worker with respect to the timing and circumstances surrounding the accident and the reporting of such. The medical reports were reviewed, and clarifications provided.

The panel notes that the worker’s employment activity of transporting merchandise via a two-wheel cart through accumulated snow is a plausible mechanism of injury. It is reasonable to accept that a strain type injury, and/or an exacerbation of a pre-existing condition could take place under the conditions noted by the worker. The panel finds the worker suffered a strain injury in the environment of a pre-existing condition.

The panel does not view the reporting timeline to be extraordinary. The accident took place during the day on February 4, 2019. The worker experienced back discomfort that was not unlike previous days at the conclusion of his workday. The next morning, February 5, 2019, he self-treated his injury with stretches, pain medication and heat, expecting that the pain would subside. Instead it grew progressively worse to the point that he was debilitated by mid-afternoon of that same day. After receiving emergency medical attention, the worker notified his employer that he was unable to attend work for his next shift on February 6, 2019. He did this by leaving a message on the company phone messaging system for his supervisor. The panel notes that the worker delayed returning signed documentation to his employer relating to his injury. This, in itself, does not preclude acceptance of the claim.

The panel considered the inconsistencies in the worker's reporting of the injury. The emergency physician noted moving heavy boxes on his report. The product merchandise that the worker was transporting by 2-wheel cart were not in boxes, and individually would not be considered heavy. The emergency room physician or triage personnel likely interpreted the worker's job actions and recorded such as heavy boxes as opposed to heavy load. The WCB adjudicator could not identify a traumatic incident or repetitive job task based on the information collected from the worker. The panel understands that the worker intended to communicate that he did not experience a traumatic and instantaneous injury. The pain was a result of a strain. It became evident part way through his shift on February 4, 2019 when he performed a delivery that was particularly onerous. He described this event with the words “sharp pain” and continued to complete his other deliveries that day without remarkably different pain levels. This was consistent with what he considered to be “normal” given his previous back injury and pre-existing condition. The delayed onset of the more extreme symptoms could be explained by his initial self-treatment routine. (Stretches, heat and pain medication). The pain continued to worsen the next day until he became debilitated.

The physiotherapist report dated February 14, 2019 indicates discogenic back pain which is consistent with the worker’s declared symptoms. Recovery timeframe of 6-10 weeks was suggested with restrictions for the first 3-4 weeks. A follow-up appointment on March 15, 2019 with the worker’s physician confirmed "acute exacerbation, chronic lower back pain." The physician noted decreased range of motion in the flexion of the lumbar spine and tenderness to the bilateral piriformis muscle regions. This is consistent with the earlier reporting of the injury. The physician stated the worker "seems to be progressively getting better."

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did suffer an 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 granted.

Panel Members

B. Hartley, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of April, 2020