Decision #15/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A teleconference hearing was held on December 1, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On April 2, 2019, the worker filed a Worker Incident Report with the WCB, reporting she injured her right hip, right side of her leg and right heel. The worker attributed her injury to the chair she was using at her workstation and an increase in her job duties which required her to sit more. The date of accident was stated to be February 5, 2019, but the worker noted her symptoms began in January 2019. The worker noted an ergonomic assessment of her workstation was conducted on February 5, 2019, and it was recommended she receive a new chair.
The employer submitted an Employer's Accident Report to the WCB on April 4, 2019. In their Report, the employer noted the worker stated "…symptoms of right hip/pelvic pain with shooting pain to her right heel whenever she would get up from her chair to walk started in January 2019." The employer noted the date of accident and the date it was reported as February 5, 2019, which was the date an ergonomic assessment was conducted and the worker found her chair was broken or listing to the right. It was further noted that the worker had a previous WCB claim for an injury to her right hip/leg as the result of a fall in June 2018. A copy of the February 5, 2019 ergonomic assessment was also provided to the WCB.
On February 8, 2019, the worker was seen by her treating sports medicine physician, who noted that the worker's appointment was for a follow-up of low back pain. The physician noted that the worker reported right foot pain, that she "can’t walk" and that she had been attending physiotherapy twice a week. The physician indicated that on examination, the worker had full lumbar range of motion, a negative straight leg raise and normal power. The worker was diagnosed with "Non Specific Back pain with no ominous or neurogenic features," and anti-inflammatory medications were recommended.
In an initial discussion with the WCB on April 23, 2019, the worker confirmed that her symptoms began in January 2019 and she related them to her chair being broken. The worker advised that her treating sports medicine physician had provided restrictions for her employer, and she began a graduated returned to work on April 9, 2019. The worker received her new chair on April 9, 2019, and it was adjusted on April 17, 2019. The worker advised the WCB that her symptoms had not changed and the pain had been progressive, even with the medication prescribed by the sports medicine physician, and was severe.
On April 25, 2019, the worker attended a follow-up appointment with her treating sports medicine physician. The physician noted the worker was attending for a follow-up for a "right L5 [radiculopathy]," had less shooting pain and was worried about bursae behind her knee. The physician reported the worker had restricted flexion, a negative straight leg raise test and a Baker's cyst in her knee, and noted the worker was "recovering."
On April 29, 2019, the worker underwent an MRI of her lumbar spine, the stated Impression from which was "Degenerative changes with potential right L5 impingement/regional inflammation from subjacent annular fissure." At a further follow-up appointment with the treating sports medicine physician on April 30, 2019, the physician reviewed the MRI results with the worker, confirmed the worker's right lumbar radiculopathy and discussed the mental and physical benefits of the worker being at work.
On May 15, 2019, the WCB's Compensation Services advised the worker that they were unable to establish a relationship between her current symptoms and a workplace accident and her claim was not acceptable.
On June 6, 2019, the worker forwarded additional information to the WCB in the form of chart notes from her treating physiotherapist for treatment she received in 2018, as well as a copy of an email the worker had sent to her section head regarding the increase in her job duties in January 2019. On June 6, 2019, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's report of low back pain radiating to her leg with weakness and the MRI findings supported a diagnosis of lumbar radiculopathy. The medical advisor further opined that radiculopathy was a result of the degenerative changes noted on the MRI and was not supported by the reported mechanism of injury of sitting in a broken chair.
On June 19, 2019, additional chart notes relating to physiotherapy treatment which the worker underwent between January 23, 2019 and March 8, 2019 were provided to the WCB. The treating physiotherapist advised that the worker's early presentation "…supported a diagnosis of pelvic dysfunction (misalignment and significant muscle tightness) along with a right Achilles tendonitis +/- plantar fasciitis." The physiotherapist further noted that the worker made minimal improvement. On July 10, 2019, Compensation Services advised the worker that the new information had been reviewed, but the earlier decision that her claim was not acceptable remained unchanged.
On November 4, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decisions. The representative submitted that the change in the worker's job duties required her to sit for longer periods of time in a chair that was broken and the broken chair aggravated her pre-existing degenerative condition. On December 18, 2019, the employer provided a response in support of Compensation Services' decision.
On January 16, 2020, Review Office determined that the worker's claim was not acceptable. Review Office acknowledged that the worker had difficulties to multiple body parts, most of which existed prior to January 2019. Review Office noted that the worker sought medical attention for her right leg and had a fall which resulted in back pain as early as June 2018. Review Office acknowledged the worker had a broken chair, but found no evidence to support that the chair played any role in the development of the worker's difficulties. Review Office concluded they were unable to establish a relationship between the worker's difficulties and the workplace.
On July 13, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference 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) 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 a 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 44.05, Arising Out of and in the Course of Employment, provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:
Under The Workers Compensation Act, benefits and services are available to workers who suffer a compensable workplace injury or illness. To be compensable, it must have been the result of an accident arising out of and in the course of the worker's employment.
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 18.104.22.168, Pre-existing Conditions (the "Pre-existing Conditions Policy"), addresses the issue of pre-existing conditions when adjudicating claims. The purpose of the Policy is described, in part, as follows:
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 Pre-existing Conditions Policy:
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 represented by a union advocate. The worker's representative and the worker made a joint presentation at the hearing, and responded to questions from the panel.
The worker's position was that her claim is acceptable and she is entitled to benefits under the Act.
It was submitted that the worker's injury was caused by a hazard of the workplace, namely the broken chair which the worker was required to use to perform her duties. The worker's representative submitted that the chair at the workstation was supplied by, and under the direct care and responsibility of, the employer, and that the WCB's definition of an accident has been met.
The worker noted that her job entails a lot of telephone triage. At the time of her injury, they were extremely busy as one of her co-workers was away on leave. The volume of calls she had to deal with was very high and she was sitting the majority of the time. The chair which the worker was required to use, being broken and leaning to the right side, put her in an awkward posture. The worker's representative submitted that sitting on the broken chair for long periods of time resulted in her injury.
The worker acknowledged that she had an accident in June 2018 where she fell and injured her right ankle and left knee, but noted that she had not hurt her heel in 2018. The worker stated that she was very functional and active prior to the accident. It was submitted that something obviously affected her, where she went from being very functional and active prior to the accident to not being able to function.
It was submitted that sitting on the broken chair led to an aggravation, or possibly an enhancement of her pre-existing degenerative condition.
It was submitted that in arriving at her opinion, the WCB medical advisor relied on incomplete information. It was noted that the medical advisor did not comment on the impact the broken chair would have had, given her pre-existing degenerative condition. With respect to the MRI, the medical advisor only claimed that it showed degeneration due to aging, and ignored the rest of the findings on the MRI. In the worker's view, it is not enough to simply say that this was degenerative. The medical advisor also did not follow-up on concerns or difficulties she had with the medical information. In the worker's view, she should have picked up the phone and spoken to the sports medicine physician to find out what was going on with the worker's condition.
The worker's representative stated they did not believe and were not arguing that sitting on the broken chair for prolonged periods of time caused the worker's injury. Rather, their position was that this aggravated or enhanced her pre-existing degenerative condition.
The worker emphasized the importance of having a detailed and accurate history when dealing with medical conditions. It was submitted that more could and should have been done to investigate her claim.
The worker advised that the pain from her injury has never gone away. She indicated that she has returned to work on reduced hours, and is hoping to get back to working fulltime.
In conclusion, it was submitted that the broken chair aggravated or enhanced the worker's underlying pre-existing condition, and her claim should be accepted.
The employer was represented by an advocate and by the employer's WCB Coordinator. The employer's representative provided a written submission in advance of the hearing and made an oral presentation to the panel.
The employer's position was that they agreed with the Review Office decision that the worker's claim was not acceptable.
The employer's representative submitted that there is no evidence of an injury arising out of and in the course of the worker's employment.
The employer's representative submitted that the worker's symptoms were a continuation of her symptoms following her June 6, 2018 fall, in the backdrop of long-standing degenerative disc disease. The representative submitted that the evidence indicated that the worker was still struggling with the symptoms from her 2018 fall, including right leg pain, but also had heel pain now. The representative questioned how the worker's heel pain, or her right hip and back pain, would have been caused by sitting in her chair.
The employer's representative noted that prolonged sitting had always been a part of the worker's job, and there had been no substantive change in her job to account for the increase in pain problems in 2019. She submitted that there was no evidence that sitting for a longer period of time in a job in January 2019, where the job normally entailed sitting for most of the day, would have resulted in the degenerative changes found on the MRI.
Referring to information she had provided in advance of the hearing, including a workstation assessment in 2011, the employer's representative noted that the worker had back and workstation complaints dating further back than 2018.
The employer's representative submitted that the medical documentation supports that the worker's difficulties are not compensable. The representative noted that the MRI spells out unequivocally that the findings are degenerative. The representative reviewed the terminology on the MRI, and argued that the various symptoms which are identified on the MRI and were referred to by the worker in her submission are degenerative changes. She submitted that there is no evidence that these degenerative changes were caused by the workplace accident or that sitting in the chair caused them to worsen in any way or to be aggravated.
The employer's representative submitted that the worker's chair was not broken, but rather near the end of its useful life. The representative submitted that the worker was not even aware there was a problem with the chair prior to the February 5, 2019 assessment.
In conclusion, the employer's representative submitted that sitting at work was not an injurious activity, and added that it could not be stressed enough that sitting is a normal activity of daily living, whether in the workplace or at home. The representative therefore submitted that the claim is not acceptable and the worker's appeal should be dismissed.
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.
Based on our review and consideration of all of the evidence, on file and as presented at the hearing, and the submissions of the parties, the panel is unable to make that finding.
The panel acknowledges that the worker's chair was broken and subsequently replaced. The panel notes that the evidence indicated the worker did not appear to have been aware of the chair being broken until February 5, 2019, when the ergonomic assessment was done. The worker stated in her Worker Incident Report that her symptoms started in January 2019. In response to questions from the panel at the hearing, the worker stated that the symptoms related to her heel occurred sometime between January 17 and January 23, 2019.
The panel is not satisfied that the worker's symptoms and injury are causally related to the worker's use of her chair while performing her work duties or a workplace accident. The panel notes that the worker and her representative acknowledged at the hearing that sitting in the broken chair did not cause her injury, that the worker had a pre-existing degenerative condition. The panel is further satisfied that the evidence does not support that the broken chair aggravated or enhanced her pre-existing degenerative condition.
While the worker argued that further consideration should have been given to particular symptoms or wording in the MRI, the panel is unable to accept that argument. The panel is satisfied that the April 29, 2019 MRI was very clear, and indicated that the findings were degenerative in nature.
The panel questioned the worker at the hearing with respect to her daily work duties, and the change in the volume of her work duties when her co-worker went on leave. The worker indicated that the change in the volume of work occurred after the co-worker left on leave and that the co-worker went on leave on January 11, 2019. The panel notes that the worker indicated that after the co-worker went on leave, the rotation schedule changed and one of their roles or tasks was taken away. The panel is satisfied that even after January 11, 2019, the worker was not sitting all the time.
The panel acknowledges that the worker has a busy and stressful job, but is unable to find that she sustained an injury as a result of prolonged sitting or her broken chair. The panel agrees that sitting in a chair is a part of life and a normal activity of daily living, and is unable to find that mechanism of injury, as described, resulted in a compensable injury.
Based on the foregoing, 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. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
D. Loewen, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of January, 2021