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 teleconference hearing was held on October 14, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The WCB received notice of the claim by a Doctor's First Report sent on January 25, 2021 which reported the worker attended for treatment that day complaining that prolonged standing and bending resulted in low back pain despite ergonomic modifications. The physician noted the area of injury as "Chronic low back pain secondary to repetitive strain."

In the Employer's Incident Report submitted to the WCB on January 29, 2021, the employer stated the worker reported injury to their back to their supervisor on January 24, 2021, indicating they were unable to walk that morning, were in a lot of pain and had an appointment with a physician for January 26, 2021. The worker's supervisor noted the worker had previously complained of a sore back which led to completion of an ergonomic assessment in October 2020.

In a Doctor's First Report to the WCB for an appointment on January 26, 2021, the treating physician noted the worker's subjective complaint of progressive back pain since a position change and working longer shifts due to the pandemic. The worker reported no improvement following an ergonomic assessment and worsening back pain in the previous five days. On examination, the treating physician found limited range of motion with forward flexion, extension, and side flexion on both the left and right sides, and pain with forward and side flexion to the left. The physician noted the worker had pre-existing multiple sclerosis, queried scoliosis, diagnosed mechanical low back pain and recommended workplace restrictions.

The worker filed a Worker Incident Report on February 4, 2021, noting their belief the low back injury was due to long hours of continuous standing at work. The worker confirmed standing on ergonomic mats at work and that they were supplied with a tall chair as a result of the ergonomic assessment. The worker stated that sitting provided relief but when they stood again, the pain returned. Further, the worker noted they first experienced their symptoms sometime in 2020, at first a strain in the middle of their lower back, which increased over time and took longer to go away. The worker confirmed the pain did not travel and they did not experience any numbness or tingling.

At the February 4, 2021 initial physiotherapy assessment, the physiotherapist diagnosed lumbar strain and recommended workplace restrictions.

When the WCB contacted the worker on February 23, 2021 to discuss the claim, the worker confirmed their shifts had changed due to the pandemic and as a result, they worked 11-hour shifts instead of 8-hour shifts. The worker advised they could not recall exactly when their back pain first started but had advised their supervisor by email and would provide a copy of that email to the WCB. When asked what prompted them to seek medical attention, the worker advised it was due to an incident where they woke up in so much pain, they could barely move and slept on the floor that night. The worker confirmed there was no specific incident that occurred at work and attributed their low back pain to their regular duties, noting these involved repetitive bending at the waist to retrieve items and move them to their workstation. The worker confirmed an ergonomic assessment was conducted in October 2020 and they were provided with a tall chair that allows them to sit as needed.

At a follow-up appointment on February 24, 2021, the treating physician noted the worker reported improving back pain and range of motion and ability to tolerate alternating sitting and standing during a reduced 5-hour shift without difficulty. On examination, the physician found full range of motion and that the worker could sit and stand easily. The physician recommended continuing physiotherapy and a return to their regular duties at full hours as of March 1, 2021.

On March 12, 2021, the employer provided the WCB with copies of email communications, a department memorandum and internal incident report with respect to the worker's reported low back difficulties in October 2020, as well as the recommendations from the ergonomic assessment that had been implemented. The WCB advised the worker on the same date their claim was not acceptable as it could not establish there was an accident arising out of or in the course of their employment.

The worker's representative requested reconsideration of the WCB's decision to Review Office on March 21, 2021. The representative noted the ergonomic changes made to the worker's workstation did not resolve their issues with back pain which increased to a point in January 2021 where the worker had to seek medical attention. As such, the worker's claim should be accepted. On May 6, 2021, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker on May 7, 2021.

Review Office determined on May 25, 2021 that the worker's claim was not acceptable. Review Office found the medical information on file indicated the worker had pre-existing conditions and acknowledged that while the worker may have low back difficulties at work, a causal relationship between those difficulties and their work duties was not established.

The worker filed an appeal with the Appeal Commission on June 9, 2021. A teleconference hearing was arranged for October 14, 2021.

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.

The Act sets out the definition of an accident in s 1(1) 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...

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.

Worker’s Position

The worker appeared in the hearing accompanied by their spouse, as an observer. The worker provided an oral submission to the panel outlining why the appeal should be allowed and offered testimony in response to questions posed by members of the appeal panel.

The worker outlined their belief that they injured their lower back at work and that the other, pre-existing health conditions are not related to, and do not impact the same area of the back as was injured through participation in their work duties.

On questioning by members of the appeal panel, the worker confirmed that they were first diagnosed with scoliosis in their late teens and with multiple sclerosis some 20 years ago.

The worker advised that when they are at work, their back hurts every day and the only relief is when on vacation. The worker confirmed that there was no difference in their symptoms after the ergonomic assessment changes were implemented and that they continued to experience back pain by the end of each shift, which would improve over the course of the evening, after work. The worker confirmed that they followed the ergonomic recommendations.

The worker indicated that they did not have any back pain in their previous position with the employer but that they experienced back pain after starting the new position in October 2020.The worker testified that in early January, approximately 1-2 weeks prior to the January 21 event, other workers noticed and commented that the worker was walking stiffly. At that time, the worker indicated, they were taking over the counter pain medication nightly, with symptoms of tightening in their lower back and pain at night.

The worker explained to the panel that on January 21, 2021 they worked their 5-hour shift and were home by noon. The worker described waking in pain that night at 3 a.m. and moving to the floor to sleep, where they remained most of the next day. The worker confirmed that after the first day, they were able to walk about, and treated their symptoms with pain reliever, ice and heat. After the weekend, the worker sought medical treatment and soon began physiotherapy which they discontinued when the WCB denied the claim.

In sum, the worker’s position is that the lower back strain diagnosed in late January 2021 is the result of and caused by the worker’s ongoing participation in their job duties which include repetitive bending and standing. The claim should be acceptable for this reason.

Employer’s Position

The employer was represented in the hearing by its workers compensation coordinator, who made an oral submission on behalf of the employer and provided answers to questions posed by members of the appeal panel.

The employer’s position is that there is no evidence to support a finding that the worker was injured as a result of an accident arising out of and in the course of their employment, and that therefore, the worker’s claim should not be accepted.

The employer’s representative noted that there is no evidence in the worker’s claim file that the pandemic-related change in the worker’s shift length from 8 to 11 hours, in March or April 2020, had any material impact on or resulted in the development of the worker’s back issues. Further, there is no evidence that the worker sought any medical attention or treatment during this period related to their low back symptoms.

Further, the employer’s representative noted the worker did not indicate to the employer in or around October 2020 that their lower back pain related to or was caused by job duties prior to the change in duties at that time period. When the worker advised the employer of their low back issues, a worksite assessment was conducted, and ergonomic recommendations were made as a result. These recommendations were implemented soon thereafter and were completed by early November 2020. Subsequently, the worker did not raise any further concerns until January 2021 when the worker sought medical attention. When the worker advised the employer on January 24, 2021 that they were unable to walk due to pain and would be seeking medical attention on January 26, 2021, the worker did not state that this was related to any event at work or job duties.

The employer’s representative stated there is no evidence of any specific work incident identified to link any of the worker’s low back issues to their work and further, that the worker advised the WCB that they were prompted to seek medical attention as a result of an incident that happened at home overnight, when the worker awoke in so much pain they could hardly move.

The employer’s representative submitted that the Review Office decision was correct and that the panel should uphold that decision as there is no evidence to support a workplace cause for the development of the worker’s low back symptoms.

Analysis

The issue for determination by the panel is whether the worker’s claim is acceptable. To grant the worker’s appeal, the panel would have to determine that the worker was injured as a result of an accident as defined by the Act, arising out of and in the course of their employment. The panel was not able to make such a finding, as outlined in the reasons that follow.

The evidence as to the onset of the worker’s symptoms is inconsistent. The worker stated both that the symptoms are related to the increase in daily working hours that began in March or April 2020, and that they had no symptoms prior to the change in duties in or around October 2020. The worker advised the employer in early October 2020 that their new job duties were “killing” their back but then did not seek any medical attention until an acute incident at home some 3 ½ months later.

The event that precipitated the worker seeking medical attention took place on January 21, 2021 while the worker was at home sleeping after completing a week of work. There is no evidence of anything out of the ordinary that took place the previous days at work that might have caused or aggravated an injury to the worker’s low back. The worker’s job duties at that time involved a variety of tasks carried out through each day that the worker was able to successfully complete until January 21, 2021 when they experienced this acute pain event.

The worker suggested to the panel that the injury is the result of cumulative strain caused over a period beginning in March or April of 2020 and continuing through to January 2021. We note while there is evidence of a change in the worker’s shift schedule that took place in March or April 2020, the worker did not make any complaint to the employer as to low back issues until early October 2020 after they were moved into a new position in a different department. At that time, the worker advised the employer of their back pain noting in an email dated October 5, 2020 that “My back is killing me ever since I started working in here” referring to the new department. In this same email, the panel noted the worker also references workplace stress and a preference for the work in the previous position. As a result of this notification, the employer initiated an ergonomic assessment process and then, soon afterward, made the recommended modifications to the worker’s workstation. The worker testified there was no improvement in their symptoms resulting from these changes, but they did not follow up further with the employer until late January 2021.

The medical reporting confirms the first medical attention to the worker’s lower back was on January 25, 2021 when a telephone consult took place. The assessing physician reported to the WCB the worker’s injury of chronic low back pain secondary to repetitive strain based upon the worker’s description of prolonged standing and bending, with worsening low back pain despite ergonomic modifications. On January 26, 2021, the worker saw another physician in the same clinic who recorded findings that include limited range of motion with forward flexion, extension and side flexion, pain with forward flexion and side flexion especially on the left side, scapular asymmetry with Adams forward bend and full strength, normal reflexes and tone of lower extremities. The physician noted the worker’s pre-existing diagnosis of multiple sclerosis, queried scoliosis and diagnosed mechanical low back pain with workplace restrictions. An x-ray taken January 27, 2021 indicated pre-existing thoracic and thoracolumbar scoliosis, but no other abnormalities.

On initial assessment for physiotherapy on February 4, 2021, the worker described low back and post hip pain, with occasional sleep disturbance, aggravated by prolonged standing at work. The physiotherapist noted reduced lumbar spine range of motion in all ranges and tight paralumbar, gluteal, and piriformis muscles bilaterally, and diagnosed lumbar strain.

The treating physician again assessed the worker by telephone on February 8, 2021, noting the worker reported improving back pain and that they were able to tolerate standing for a few hours and walking up to 4-5 hours, improved with stretching. On further assessment on February 24, 2021, the physician recorded full range of motion, normal gait and easy sit/stand. At that time, the physician recommended continuing physiotherapy and home exercises, with a return to regular work hours and duties, with caution as of March 1, 2021.

It is clear to the panel from the medical reporting that the worker presented with a lower back or lumbar strain in late January 2021, but other than the worker’s belief that the injury is the result of their repetitive employment activities, there is no evidence to support a finding that the worker’s lower back condition was caused by or the result of the worker’s cumulative job duties nor by any incident at work. Although the worker experienced lower back symptoms at work, the timing of symptomatic presentation is not evidence of a causal link between the worker’s job duties and those symptoms. Further, the evidence as to the nature of the worker’s job duties and the worker’s ability to continue carrying out those duties until January 21, 2021 also does not support a finding of any causal link between the worker carrying out their job duties and the development of their symptoms.

On the basis of the evidence before us, the panel is not satisfied, on the standard of a balance of probabilities, that the worker’s low back difficulties developed as the result of or were caused by the worker’s continuing occupational duties and we are unable to find that the worker was injured as a result of an accident arising out of and in the course of employment. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of November, 2021