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 by teleconference on April 23, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on August 10, 2018, reporting that she injured her lower back at work when she and a healthcare aide were boosting a patient in bed on August 2, 2018. The worker noted that she thought she might have overextended and twisted awkwardly which caused a strain in her lower back. She did not have immediate pain or discomfort and finished her shift.

The worker was seen by a physiotherapist at an initial assessment on August 4, 2018. In an Initial Assessment Report dated August 14, 2018, the physiotherapist reported the worker described she "was on night shift – lifting patient…& felt more pain the next morning." The physiotherapist diagnosed the worker with a quadratus lumborum (QL) and hip flexor strain and recommended restrictions of no lifting/bending/twisting/assisting/kneeling/push/pull for two weeks.

The worker confirmed the mechanism of injury in an initial discussion with a WCB adjudicator on August 15, 2018. The worker said she self-treated by resting and alternating between hot and cold compresses, then saw the physiotherapist on August 4, 2018. She did not mention any symptoms before the end of her shift as she did not feel any symptoms at work. After her shift, she went home and slept. When she woke up later that afternoon, her lower back felt sore, which she related to boosting a patient during her shift. The worker said she worked her next shift, being the night shift on August 2-3. At the start of that shift, she mentioned to her supervisor that her back was sore, and asked for lighter duties. She finished her shift, then remained off work until August 15, 2018, when she started a graduated return to work program with four-hour shifts as recommended by her treating physiotherapist.

On August 22, 2018, the WCB's Compensation Services advised the worker that her claim was not acceptable as an accident had not been established. Compensation Services noted that the worker did not experience any symptoms when she performed her work duties and was at home when she started to experience pain.

On December 19, 2018, the worker's union representative requested reconsideration of Compensation Services' decision. Included with the request was a report from the worker's treating physiotherapist, who opined that due to the worker's age and activity level, a milder strain injury could take a couple of hours to set in after the mechanism of injury, after the muscle had time to tighten up. The physiotherapist further opined that the mechanism of injury was consistent with a strain injury as diagnosed on August 4, 2018.

On February 11, 2019, the employer's representative provided a submission in support of Compensation Services' decision. Compensation Services subsequently advised the worker that the decision to disallow the claim remained unchanged, and on February 20, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decision.

On February 22, 2019, Review Office determined that the worker's claim was not acceptable as they were unable to find evidence to support that the worker sustained an injury while at work. Review Office noted that in arriving at their decision, they relied on the worker's having repeatedly reported feeling no symptoms or pain at the time of the incident. Review Office also relied on the worker's having indicated on August 15, 2018 that she was not sure what happened, but she thought her injury occurred when she was repositioning and boosting a patient.

On September 30, 2019, the worker's union representative appealed the Review Office decision to the Appeal Commission. An oral hearing was then arranged, and proceeded by way of teleconference on April 23, 2020.

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 that:

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 assisted by a union representative, who provided a written submission in advance of the hearing. The worker's representative made a presentation at the hearing, and the worker responded to questions from her representative and from the panel.

The worker's position was that she sustained an injury at work as outlined in her Worker Incident Report and diagnosed by her treating physiotherapist, and her claim is acceptable.

In response to questions from her representative, the worker confirmed that she worked a 12-hour shift from 7:30 p.m. to 7:30 a.m. on August 1-2, 2018. Between 5:30 and 6:00 a.m. on August 2, she and a healthcare aide had to boost a patient who had slumped down in her bed. The worker noted that the patient was a tiny older woman, and the healthcare aide was a male who was likely in his mid to late 30s, stronger and at least 5 to 6 inches taller than the worker. The worker and the healthcare aide were positioned on opposite sides of the bed, and when they lifted the patient, the healthcare aide lifted her much higher in the bed, which caused the worker to twist her back to lift the patient higher up.

The worker said that the remainder of her shift was easy, as she was simply sitting at her workstation and catching up on her charting. When her shift ended, she walked home, which was about a five minute walk, took a shower, then went straight to bed. She slept for approximately five hours, and when she was waking up, she felt back pain. Her next shift, also a 12-hour shift, started at 7:30 p.m. that same evening. She returned to work for that shift, and on arriving at work, she told her supervisor she had hurt her back. She completed her shift, but instead of performing her regular duties, she asked for and was given very simple tasks helping other staff.

The worker's representative submitted that the timing of the worker's injury was important. She noted the worker started her shift at 7:30 p.m. on August 1, 2018. She had no difficulties with her back at the start of her shift. She was injured near the end of her shift, between 5:30 and 6:00 a.m. on August 2. She finished her shift at 7:30 a.m. on August 2, and went right home to sleep. When she woke later that day, she was in pain. She was therefore symptomatic on the actual day she was injured. The worker returned to work her next shift starting at 7:30 p.m. on August 2, which was technically the same day. When she arrived for her shift, she reported the injury to her supervisor and was assigned lighter duties.

The worker's representative referred to a document she had provided in advance of the hearing, which identified potential hazards and less than ideal conditions for patient handling, including lifting with extended arms, lifting with the trunk twisted or the load off to the side of the body, and lifting during a shift lasting longer than eight hours, all of which she indicated applied in this instance. The representative submitted it was important to note that the healthcare aide was a male, who was stronger and taller than the worker, and that the worker was not expecting such an aggressive or extreme lift. The worker confirmed it was not the kind of lift she would have expected with a very slight patient.

The worker's representative noted that the worker attended an initial physiotherapy assessment on August 4, 2018, or two days after her injury. The worker added that Friday, August 3, 2018 was the start of the August long weekend. She said she worked hard to track down a physiotherapist who was working that weekend, as she was in so much discomfort and knew she should see a physiotherapist as soon as possible. The representative submitted that the worker described the workplace incident to the physiotherapist, and the physiotherapist agreed that the mechanism of injury was consistent with her diagnosis of a QL and hip flexor strain and likely caused her injury.

The worker's representative further noted that they had provided chart notes and a report from the treating physiotherapist, and that in her report, the physiotherapist had provided an explanation for the delayed onset of the worker's symptoms. The representative submitted that the physiotherapist's report and explanation should be accorded significant weight, and the worker's claim should be accepted.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing. The employer's position was that the evidence did not support the worker sustained an injury at work, and the decision to deny her claim was appropriate.

The employer's advocate noted that there was no indication in the worker's initial report to the WCB or in what was indicated to the employer that a lower back injury occurred on August 2, 2018. The worker reported she used the correct techniques, with the assistance of an aide, in boosting a patient in bed. The advocate queried how, if the worker used the proper techniques and body mechanics, had the assistance of a healthcare aide, had a partially independent patient, and experienced no pain or discomfort at the time, the activity of boosting the patient could be related to discomfort she felt hours later when she woke up. The advocate argued that the worker would surely have felt something at the time of the activity if it was the cause of her discomfort. Instead, she continued to work her shift, made no mention of any symptoms and said she felt none, then worked the following shift with some modifications.

The employer's advocate submitted that it was only in retrospect that the worker said she thought she might have overextended and had an awkward twist which caused her strain. The advocate submitted that this is not evidence of a causal link, but rather the worker looking back and attempting to find a reason for back pain that developed sometime later. The advocate suggested it was just as possible that something else could have caused the worker's back pain the next day or the next work shift.

The employer's advocate also argued that information on file indicates it was the worker's physiotherapist who suggested that the incident the worker described would be consistent with her diagnosis. The advocate commented that in their view, this was speculative. The advocate noted that the physiotherapist also reported that the worker lifted the patient and felt more pain the next morning, which differed from what was initially reported to the employer and the WCB. The advocate submitted that the physiotherapist's report should therefore be accorded little, if any, weight.

The employer's advocate further submitted that while the worker indicated at the hearing that she twisted her back because the healthcare aide was a male and taller, because he lifted the patient higher, and because the boost was not what she anticipated, this was the first time any of this had been mentioned. The advocate stated that this description of the incident, one and one half years after the fact, was significantly different from what the worker initially reported and what was on file. The advocate indicated that they would have expected the worker would have reported this at the time if this was what took place.

In conclusion, it was submitted that on a balance of probabilities there was no evidence of a link between the worker's work activities and the development of a strain injury, and the worker's appeal should be dismissed.

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. The panel is able to make that finding, for the reasons that follow.

There is no dispute, and the panel accepts, that the worker suffered a sprain/strain injury to her lower back, which was diagnosed as a QL strain and hip flexor strain. The question is whether or not that injury was the result of, or causally related to, a workplace incident. Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is satisfied that the worker's injury was causally related to her August 2, 2018 workplace incident.

In arriving at that conclusion, the panel finds that the worker's reporting of the mechanism of injury is generally consistent throughout the file. In response to questions from her representative and from the panel, the worker provided a further description and details of the incident at the hearing, including further information as to the height and strength of the healthcare aide, the positioning of the worker and the healthcare aide, and what occurred as they boosted the patient on August 2, 2018. The panel finds that this description and the additional details are consistent with the information on file, and accepts the worker's evidence in this regard.

The panel is further satisfied, on a balance of probabilities, that the worker was injured as a result of that workplace incident. While it was noted that the worker reported she used proper body mechanics and techniques, the panel is satisfied that what actually occurred when boosting the patient was unexpected and resulted in an awkward twisting motion which could, and did, result in the worker being injured.

The panel notes that the worker confirmed at the hearing that she used proper body mechanics and techniques, but stated that what she meant by that was that:

I had put the side rails down, had the bed level. I did use proper mechanics until…the healthcare aide had boosted the patient higher in the bed and which caused me to twist my back. That twisting motion was not proper body mechanics and that is where my back injury came from.

In addition, while the worker has indicated she did not experience symptoms at the time, the panel is satisfied that her symptoms developed within a relatively short period of time after the workplace incident. In this regard, the panel notes that the evidence shows that the incident occurred towards the end of the worker's August 1-2 shift, and her duties for the remainder of that shift were not physically demanding. The worker advised that she is generally exhausted by the end of a 12-hour shift, and she immediately went home and slept for approximately five hours.

The panel places weight on the report of the treating physiotherapist who opined, in response to an inquiry from the worker's union as to why there would have been a delay in the development of the worker's symptoms, that:

Due to [the worker's] age and activity level a milder strain can set in a couple hours after the original mechanism of injury after the muscle has had time to tighten up.

The panel accepts that explanation, and is of the view that it is reasonable in the circumstances that the worker would have begun experiencing the symptoms of her workplace injury later in the day, after she had slept and was waking up.

The panel is also satisfied that there was no delay in reporting the injury to the employer. There is no dispute that the worker reported her injury to her supervisor at the beginning of her next shift, which occurred on the same calendar day as the workplace incident. The panel notes that the attachment to the Incident Report which the employer filed with the WCB indicated that the worker had reported she was injured during her August 1-2, 2018 night shift. The employer's advocate advised at the hearing that this would likely have been noted when the worker reported her injury to her supervisor at the start of her August 2-3 shift.

The panel is further satisfied that there was no significant delay in seeking medical attention. The evidence shows that the worker arranged to see a physiotherapist and began treatment on August 4, 2018, two days after the workplace incident.

Finally, the panel notes that information on file, which was confirmed at the hearing, indicates the worker's injury had resolved and she was back at work performing her regular 12-hour shifts by September 19, 2018. It is the panel's understanding that this is within the typical recovery time for a sprain/strain injury of this nature, and is consistent with the treating physiotherapist's report that the average recovery time for the diagnosis of a QL and hip flexor strain can be anywhere from four weeks to three months.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. The worker's claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of June, 2020