The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on March 18, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The employer filed an Employer’s Incident Report with the WCB on June 3, 2014 indicating the worker injured their lower back in an incident at work on May 28, 2014 when the chair they sat on in the employer’s lunchroom collapsed and the worker fell, while on their scheduled lunch break. The incident was reported to the employer on May 31, 2014.

The worker sought treatment at a local emergency department on May 31, 2014 and reported increasing pain in their lower back. An x-ray taken of the worker’s lumbosacral spine indicated “Mild lower lumbar facet degenerative change is suspected” and the worker was diagnosed with a lumbar soft tissue injury. Recommended restrictions were for frequent position changes, rest in supine position and avoiding lifting, pushing and pulling.

On June 16, 2014, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and that current symptoms included a stiff neck, lower back discomfort and pain, loss of mobility with stiffness after sitting for a while, feeling their back tightening up, fatigue and being awoken during the night with the feeling of having to urinate.

On June 19, 2014, the employer contacted the WCB noting concerns with the worker’s claim and provided the WCB with contact information for the worker’s co-workers who witnessed the May 28, 2014 incident. On the same date, the WCB spoke with one of the witnesses who confirmed the worker’s description of the incident. The WCB also spoke with the employer’s safety co-coordinator that same day, who advised they had not witnessed the incident and that it was reported to them on May 31, 2014 when the worker attended for medical treatment.

An initial physiotherapy assessment took place on June 20, 2014. At that time, the worker reported pain in their lower back and left buttock and the physiotherapist noted marked impairment in the worker’s flexion and extension and weakness in the worker’s abdominals, possibly indicating an abdominal hernia. The physiotherapist diagnosed the worker with a compressive injury, lumbar spine, queried degenerative disc disease and recommended the worker remain off work.

The WCB advised the employer on June 25, 2014 the worker’s claim was acceptable despite the delay in reporting the claim until May 31, 2014. The WCB considered the delay reasonable and accepted the worker sustained an injury which arose out of and in the course of their employment.

On June 27, 2014, the employer requested reconsideration of the WCB’s decision to Review Office noting concerns with the decision to accept the worker’s claim including the delay in the worker reporting the injury, no initial discomfort noted by the worker until three days later and the worker’s refusal to accept modified duties offered by the employer.

The WCB received a clinic note from the worker’s treating family physician on July 3, 2014 regarding the worker’s appointment on June 3, 2014. The physician noted the worker’s report of the incident, with “…a bit of back discomfort on the day of the fall. The next day was quite stiff and sore.” Further, the physician noted the worker “Has had multiple back issues in the past.” The worker reported pain radiating down their left leg to their knee and significant pain in their lower back. The physician noted the worker was moving with difficulty and using a cane, with tenderness in their lower back but no obvious neurologic abnormalities. The physician provided a sick note authorizing the worker to remain off work until June 30, 2014. At a follow-up appointment on July 8, 2014, the physician noted improvement in the worker’s back but continued symptoms in their legs with possible radiculopathy. The physician again noted no obvious neurologic abnormalities in the worker’s legs and provided a sick note for the worker to remain off work for an additional six weeks. The physician referred the worker for an MRI.

An August 1, 2014 physiotherapy progress report noted pain radiating down the worker’s right lower leg to the top of their right foot and indicated the previous reporting of pain in the worker’s left leg was in error. The physiotherapist queried a probable disc protrusion and reported the worker was unable to return to work at that time.

A WCB medical advisor reviewed the worker’s file on August 12, 2014 and concluded the worker’s initial diagnosis was of a contusion/strain to the lower back/buttocks with a predicted recovery time over six to eight weeks. As 10 weeks had passed since the workplace accident, the WCB medical advisor suggested the requested MRI study would “…assist in identifying the existence of a significant pre-existing condition.” The advisor further opined the worker was not considered totally disabled and outlined restrictions of limiting prolonged standing and repetitive flexion of the lower back. The restrictions were provided to the employer on August 13, 2014.

On August 22, 2014, Review Office rescinded the June 25, 2014 decision of Compensation Services and found the worker’s claim was not acceptable. Review Office determined that given the worker’s delay in reporting the incident to the employer and seeking medical treatment, along with the delay in the onset of the worker’s symptoms, the worker’s current difficulties were not related to the May 28, 2014 workplace accident. Review Office noted the diagnostic imaging conducted on May 31, 2014 noted degenerative changes in the worker’s lumbar spine but there were no findings that suggested the worker sustained a recent traumatic injury. As such, it could not be established the worker sustained an accident on May 28, 2014 and their claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on May 26, 2020. A teleconference hearing was arranged for March 18, 2021.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury or medical aid as required to cure and provide relief from injury arising out of a compensable accident or other compensation as provided for under the Act.

Worker’s Position:

The worker was represented in the hearing by an advocate who provided an oral submission on behalf of the worker. The worker provided evidence in answer to questions posed by members of the appeal panel.

The worker’s advocate noted that the worker sought medical attention within three days of the accident occurring and as soon as the worker noted symptoms were not subsiding. The employer was made aware of the worker’s fall from the broken chair within an hour of when it occurred, although the incident was not reported to the WCB until the worker sought medical attention.

In answer to questions from members of the appeal panel, the worker noted that at the time of the accident, they were already using pain medication relating to a dental procedure that took place just before the worker returned to the work camp.

The worker’s job duties required the worker to supervise and engage in a variety of carpentry tasks, including crawling beneath portable structures to check and indicate where work needed to be completed by others.

The worker indicated to the panel that the injury occurred near the end of their work cycle and that as they travelled back home after attending hospital for treatment, the journey was made longer as a result of having to make numerous stops due to the injury. When the worker returned home, they sought further treatment from their family physician as well as physiotherapy, as outlined in the WCB claim file.

In sum, the worker’s position is that as a result of falling to the floor from a broken chair in the employer’s lunchroom, while in the course of the workday on a lunch break, the worker was injured. Therefore, the claim should be accepted.

Employer’s Position:

The employer did not participate in the appeal.

Analysis:

The sole issue for determination by the panel is whether or not the worker’s claim is acceptable. In order to grant the worker’s appeal, the panel would have to find that the worker was injured as a result of an accident arising out of and in the course of employment. For the reasons outlined below, the panel was able to make such a finding.

The panel noted that the worker’s Incident Report to the WCB sets out that when the worker sat on a chair in the employer’s lunchroom on May 28, 2014, the chair collapsed and the worker fell to the floor, causing injury to their lower back and buttocks. At the time of the incident, the worker was on their lunch break, during the course of their workday. The evidence of other employees who were present at the time of the incident, as recorded in the WCB claim file, confirms that this incident took place as the worker described.

The worker’s testimony is that prior to the incident, they were not having any lower back symptoms and were able to engage in the physical demands of their job without difficulty. While the worker acknowledges previous back injury and symptoms, these were not causing the worker any difficulty at the time of this incident.

The panel further noted that the medical reporting confirms the worker sought medical attention for injury to their lower back and buttocks at a local clinic on May 31, 2014. The chief complaint noted in the patient report is midline lower back pain. The worker provided a description of how the injury occurred consistent with other reports made by the worker and other witnesses. Treatment with cold pack was recommended and the worker was referred to a nearby medical centre for further assessment.

The worker attended a local hospital for further assessment the same day. An x-ray was taken, and degenerative changes are noted in the worker’s lumbar spine. No acute fracture is noted, and the worker was diagnosed with lumbar soft tissue injury. Restrictions were provided for the following two weeks.

The worker returned to their home community and saw their own physician on June 3, 2014. The medical chart notes from that visit indicate the worker had “a bit of back discomfort on the day of the fall. The next day was quite stiff and sore. Had multiple back issues in the past. Now having quite a bit of pain radiating to the left leg down to the level of the knee and quite significant pain in the low back.... No red flag symptoms.” The physician noted the worker moved with difficulty and was using a cane, and that the worker exhibited tenderness in the lower back but no obvious neurologic abnormalities.”

For the claim to be acceptable, the panel must find that there was an accident as defined by the Act and that the worker was injured as a result. On the basis of the evidence presented in the hearing and the claim file documents, the panel is satisfied on a balance of probabilities that the worker’s lower back was injured as a result of the worker’s fall from a chair in the employer’s lunchroom, on May 28, 2014. The panel finds that this was an accident, as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured.

The panel therefore finds, on a balance of probabilities, that the worker’s claim is acceptable, and the worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of April, 2021