The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Their claim is not acceptable; 

2. They are not entitled to benefits after September 22, 2020.

A videoconference hearing was held on May 18, 2021 to consider the worker's appeal.

Issue

1. Whether or not the claim is acceptable; and 

2. Whether or not the worker is entitled to benefits after September 22, 2020.

Decision

1. The claim is acceptable; 

2. The worker is entitled to benefits after September 22, 2020.

Background

A Worker Incident Report was filed with the WCB on August 13, 2020 indicating the worker injured their lower back and hips in an incident at work on August 7, 2020, which was reported to the employer on August 12, 2020. The worker described experiencing a sharp pain in their lower back after getting up from a chair and walking down stairs after an afternoon break. The worker noted on the Report they did not initially report their workplace injury as they thought it would go away.

The worker was seen by their family physician on August 11, 2020, reporting a backache after straining their back. The physician noted “Lower backache muscle spasm noted over the SI (sacroiliac) joints on both sides” and diagnosed the worker with a back muscle spasm. At a follow-up appointment on August 14, 2020, the worker reported continuing back pain and was referred for physiotherapy. The treating physician recommended the worker remain off work until August 21, 2020.

On August 21, 2020, the WCB contacted the worker to gather further information and discuss their claim. The worker advised they had no issues with their back prior to August 7, 2020 and reported getting up out of the chair or pushing the chair out of the way and feeling a sharp pain in their back. They further advised they had mentioned their back difficulties to their co-workers but managed to finish their shift that day. The worker noted small improvements since the workplace accident with being able to sit and stand for longer periods of time. The WCB advised the worker their claim was accepted and would contact the worker further once restrictions, if any, had been provided by the worker’s physiotherapist. The worker’s initial physiotherapy assessment took place on August 26, 2020. The physiotherapist noted a positive straight leg raise test on the right with increased pain in the worker’s right buttock and back and queried a possible disc protrusion and recommended the worker remain off work.

The worker’s file was reviewed by a WCB medical advisor on August 27, 2020. The advisor noted the treating physiotherapist’s query of a disc protrusion however, opined the reported mechanism of injury “…did not involve…abnormal force through the spine…” and provided a diagnosis of non-specific pain, which was not related to the workplace accident of August 7, 2020. As the WCB medical advisor could not relate the worker’s difficulties to a workplace accident, they were unable to provide restrictions for the worker. On September 15, 2020, the WCB advised the worker it had been determined their ongoing difficulties were not related to the workplace accident and as such, their entitlement to benefits would end on September 22, 2020.

Additional medical information was placed to the worker’s file including a request from the worker’s physiotherapist to the WCB on August 28, 2020 for a new chair, September 2, 2020 and September 3, 2020 reports from the worker’s treating physician referring the worker for an x-ray and recommending the worker follow a graduated return to work plan prepared by their physiotherapist, chart notes from the worker’s treating physiotherapist, and a September 4, 2020 x-ray of the worker’s lumbar spine, which noted degenerative changes including minor multilevel spondylosis and lower facet arthropathy at the L5-S1 level.

On October 1, 2020, the worker’s file and the additional medical information was reviewed by a WCB medical advisor. The advisor noted no change to their August 27, 2020 opinion that the worker’s difficulties were not related to the workplace accident. The WCB medical advisor provided that the reduced flexion, reduced results of straight leg raise tests, difficulty maintaining any position and possible loss of bowel control could not be medically accounted for in relation to the reported workplace accident. Further, the WCB medical advisor opined that while the worker’s difficulties may have started at work, the reported workplace accident would not have caused severe back pain for weeks as there was no abnormal force through the worker’s back related to their job duties that would have caused an injury to a disc.

The WCB advised the worker on October 9, 2020 that after review of their file, the previous decision to accept their claim was rescinded and they were not entitled to benefits. The worker’s representative requested reconsideration of the WCB’s decision to Review Office on November 9, 2020. The representative noted the worker continued to experience difficulties from the workplace accident and with the WCB’s decision to end benefits, discontinued physiotherapy treatment and experienced increasing back pain, which caused the worker to go off work. The employer provided a submission in support of the WCB’s decision on December 24, 2020, a copy of which was provided to the worker’s representative on January 4, 2021. A further response was received from the worker’s representative on January 5, 2021.

Review Office determined on January 7, 2021 the worker’s claim was not acceptable. Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker had degenerative changes in their low back and resulting low back pain. However, Review Office could not establish that the worker’s low back difficulties arose out of or in the course of their employment and as such, found the worker’s claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on January 7, 2021 and a videoconference hearing was arranged for May 18, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.

Subsection 4(1) of the Act provides:

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

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 willful 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.

Subsection 4(2) provides that:

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) provides that:

The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Subsection 37 provides that:

Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2) provides that:

Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

The WCB Board of Directors enacted WCB Policy 44.05 Arising Out of and in the Course of Employment, which provides that:

…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.

The Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

While workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

WCB Policy 44.10.20.10, Pre-existing Conditions, ("the Pre-ex Policy") relates to pre-existing conditions and further injuries and in part provides that: 

a. When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. 

b. When a worker has: 

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The Pre-ex Policy provides the following definitions:

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 in the videoconference hearing by a worker advisor who made submissions on their behalf and asked questions of the worker. The worker also addressed questions from members of the panel.

The worker’s onset of pain was, at least in part, due to the movements involved in rising from their chair and pushing the heavy and awkward chair out of the way to leave the workstation and go for a break. While the WCB’s medical advisor concluded these activities did not involve sufficient force to cause injury, the worker advisor presented their disagreement with that position. The amount of force required is only one of the variables in the equation, and the WCB’s medical advisor does not appear to have considered other factors, such as the condition of the worker’s spine, how they rose from the chair, the weight of the chair, or even the space in which the accident occurred.

The worker advisor outlined their position that the worker's claim is acceptable and the worker is entitled to wage loss benefits as a result of the August 7, 2020 workplace injury.

The evidence establishes the worker had not fully recovered from the compensable injury and there was a loss of earning capacity beyond September 22, 2020 as a result. The worker advisor stated that the medical information supports that the compensable areas of injury were confirmed as being the lower back and hips and that the WCB accepted these injuries as non-specific pain / strain injuries before rescinding their decision and ending the worker’s entitlement to benefits as of September 22, 2020.

The worker advisor submits that, consistent with the Pre-ex Policy, the symptoms and the restrictions that the worker experienced beyond September 22, 2020 were a combined effect of a previously undiagnosed pre-existing condition and the compensable injury.

Employer’s Position

The employer’s representative provided a written submission supporting the decision of the Review Office that there is no further entitlement to wage loss beyond September 22, 2020 and, the WCB decision of October 9, 2020, which reversed acceptance of the claim.

The employer representative presented the following narrative that sums up their position.

“With respect to the matter of whether or not the claim is acceptable, it is our opinion that given the October 1, 2020 medical opinion from WCB medical advisor, all of the changes in the worker’s description of how they injured herself, the delay in seeking medical attention and the delay in reporting the injury to their employer, it is not possible to establish that the worker was injured in the course of performing their job duties…on August 7, 2020, as the worker claims.”

Analysis

For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker was injured during the course of their employment on August 7, 2020 and that there is entitlement to benefits beyond September 22, 2020. The panel was able to conclude that a compensable injury occurred and that there is entitlement to benefits beyond September 22, 2020 for the reasons that follow.

The panel finds that the worker suffered an injury related to their rising and moving away from their workstation. The worker’s inability to pinpoint the specific movement that caused the injury was not determinative to the panel as to whether a compensable injury occurred.

The panel also finds that there was no significant or material delay in reporting the incident that occurred on a Friday afternoon. The worker called their employer and spoke to a co-worker to report their expected absence several hours ahead of the worker’s next scheduled shift on the following Monday morning. The worker advised the co-worker that they had hurt their back on Friday while at work. The worker followed protocol and spoke with another co-worker on Tuesday to advise of their workplace incident on the previous Friday. The employer incident report was completed after the worker reported the outcome of their physician visit on Tuesday, August 11, 2020.

With respect to the specific matter of the mechanism of injury, the panel carefully considered the WCB medical advisor’s opinion dated August 27, 2020 that stated, in part:

Non-specific pain would be related to an accident at work if the accident involved abnormal force through the low back. Examples of movements that would cause such a dx would be sudden heavy lift/push/pull, a slip and fall, a fall from a height, an acceleration/deceleration, a direct blow, a sudden forceful bend or twist, or prolonged awkward positioning of the back. The workplace accident reported here did not involve such any such abnormal force through the spine, so a dx cannot be confirmed in relation to the workplace accident of August 7, 2020.

The panel notes that on the date of the workplace injury, the worker was sitting for a prolonged period of time in a chair that the worker would place a cushion on the seat of, as they found the chair to be uncomfortable to sit in without the cushion. During the hearing, the worker described the cushion as follows:

It’s ever since they brought that big chair in [the workplace], it’s an old chair. So when I sat on it I could feel like, it felt like the bars or the wood in the seat. So that’s why I went to [retail store] on [street] and I asked them, I took the measurements of the seat and they had a cushion perfect for that. There’s gel in it and it’s sponge. So that’s what I used, so it was more cushiony.

It is the panel’s view that the fact the worker felt the need to purchase this item supports that the chair was not providing the required body support. In this context, the panel accepts that the worker was exposed to “…prolonged awkward positioning of the back.” The combination of this awkward positioning and the worker’s movements as they rose and moved away from their workstation resulted in an injury to the worker’s back on August 7, 2020.

The absence of previous medical history related to back pain or injury supports the worker’s position that the incident that occurred on August 7, 2020 was a compensable injury. This is supported by the worker’s long-term physician’s commentary that he provided no treatment or diagnosis of a back problem in the past.

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 workplace back injury occurred within an environment of pre-existing degenerative spinal changes as noted in the x-ray of the worker on September 4, 2020. The panel finds that this was an accident as defined by the Act, as an injury arising out of and in the course of the worker’s employment. The lack of history of back/hip problems as cited by the worker’s physician supports the conclusion that an injury occurred in the course of the worker’s employment. 

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

The panel also accepts that the worker had not recovered from their injury when the claim was terminated effective September 22, 2020. The panel’s position is supported by the physiotherapist’s progress report dated September 23, 2020 of an exam that occurred on September 21, 2020. Although the worker was in the process of returning to work on a graduated basis under the supervision of their physiotherapist at that juncture, the exam notes confirm ongoing symptomology resulting from the August 7, 2020 workplace injury. As a result, the panel finds that the worker is entitled to benefits beyond September 22, 2020.

Panel Members

B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of July, 2021