Decision #140/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable. A videoconference hearing was held on October 5, 2021 to consider the employer's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
On February 1, 2021, the worker filed a Worker Incident Report with the WCB, reporting she injured her right knee and lower back at work on January 27, 2021. The worker noted she was not able to drive her regular bus unit due to mechanical issues, and by the time she was able to start her route, she was running 40 minutes late. The worker added that:
Since this…was not my regular unit I felt the difference. I adjusted my seat for the gas pedal, and did my best to adjust, but it did not feel good.
At about 9:30 am, about 45 minutes into my route, I felt a stretch in my right leg, starting at the knee.
When I got back to the yard at 10:05 am after my run, the pain was increasing and the pain was going to my lower back. My right side, the whole part of my leg was in pain. I could not put pressure on my right leg, and I was having a hard time walking. There was a lot of pain in my right knee and lower back.
The worker saw her chiropractor on January 27, 2021 for an initial assessment. The chiropractor noted the worker's complaints of lower back pain radiating into her right thigh but did not provide a diagnosis. At a follow-up appointment with her chiropractor on February 5, 2021, the worker was referred to an athletic therapist to work on strength and endurance. On February 8, 2021, the worker attended an initial appointment with an athletic therapist, who noted the worker's report of a constant ache in her low back, that radiated to her right knee, and occasional tingling in her low back, and diagnosed the worker with a lumbar sprain/strain and right sacroiliac joint sprain.
In a discussion with the WCB on February 18, 2021, the worker advised that the bus unit she was given on January 27, 2021 had a very stiff gas pedal and she had to really stretch her leg to reach it. She indicated she tried to move the seat forward so she could reach the pedal better, but the seat would not move. As a result, she "…really had to stretch…" her leg for two hours during her morning run. She noted her knee started to hurt, and by the end of her run the pain had started to go into her lower back. She said she called in for the afternoon run as her right knee was very painful and she could not put pressure on it. The worker advised she sought treatment from her chiropractor, who suggested she remain off work and referred her to an athletic therapist, who she felt was helping in her recovery. The worker further advised she currently felt approximately 40% better and had begun a new position with a different employer.
On March 9, 2021, the worker's file was reviewed by a WCB medical advisor, who opined, based on the medical reports on file, that the worker's current diagnosis was "…non-specific low back pain with radiating features and no overt evidence of lumbar radiculopathy." The WCB medical advisor further opined that "In this case there is no report of a mechanism which would have resulted in the application of a force to the low back such that material tissue injury would have occurred as would be the case with a lumbar sprain/strain injury. It is further noted that the SI (sacroiliac) joint is a very strong/stable joint and as such a relatively significant force is required to result in a sprain of the SI joint. There is no described mechanism of injury in this case which would account for acute SI joint pathology." The medical advisor went on to state that treatment as outlined in the February 8, 2021 athletic therapist's report was appropriate in relation to the current diagnosis, and that most episodes of acute low back pain improve or resolve over a period of days to weeks, rather than months.
On March 29, 2021, the WCB's Compensation Services advised the worker that they were not able to accept her claim, as a relationship between her current difficulties and an accident arising out of and in the course of her employment had not been established. On April 20, 2021, the worker requested that Review Office reconsider Compensation Services' decision to deny her claim.
On April 29, 2021, Review Office determined that the worker's claim was acceptable. Review Office noted that the employer confirmed the worker's description of the incident, indicating it was reported to the supervisor on the day it occurred. Review Office found that the activity of driving a bus arose out of and in the course of the worker's employment, and that the worker would likely have experienced lower back difficulties due to the nature of the job duties and difficulties adjusting the seat.
Review Office further noted that there was no delay in seeking medical attention, and that the chiropractor's documented description of the incident was concordant with the worker's report. Review Office determined that the described mechanism of injury was consistent with the difficulties or injury to the worker's lower back area, which they found to be a soft tissue injury. Review Office therefore determined the worker sustained an accident arising out of and in the course of her employment, and the claim was acceptable.
On May 5, 2021, the employer appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for October 5, 2021.
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 reads 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,
(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, further provides, 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.
The employer was represented by its Senior HR Administrator, who participated in the appeal by teleconference. The employer's position was that the worker's difficulties were not work-related and the claim should not have been accepted.
The employer's representative noted that the original decision by Compensation Services determined that there was not enough evidence to support the worker's claim. That decision was overturned by Review Office based on medical information which the employer was not privy to at the time. The representative noted that they rely on the WCB who originally determined there was not sufficient medical information to accept the claim, then overturned that decision. The representative noted that they did not understand why the decision was overturned where the medical evidence was the same and had been found to be insufficient to support the claim.
The employer's representative indicated that they did not dispute that the worker was working the day she was injured, that the bus she normally drove broke down and she had to take a different bus. The representative submitted, however, that a bus is a bus, and that the replacement bus was essentially equivalent to the bus the worker normally drove. The representative noted that they had confirmed with the worker's supervisor that the seat on the replacement bus the worker was given had been replaced the day before, and that the mechanics to move the seat forward and back was working.
The employer's representative also pointed out that the worker resigned from her position with the employer on February 3, 2021, while she was off work and on claim. The representative stated that the worker's last day of employment with the employer was February 16, 2021, and she never returned to the workplace. The representative noted that the worker accepted a position with another employer doing the same tasks, and the evidence indicates she was already working at a different location driving bus at that time.
In conclusion, the employer's representative submitted that there was no significant event or accident on January 27, 2021 that would have caused an injury to the worker, or such a degree of injury, and the medical evidence did not support that the worker was injured.
The worker was self-represented and participated in the appeal by videoconference. The worker noted that the evidence was on file and she did not really have anything to add. The worker responded to questions from the panel in the course of the hearing.
The issue before the panel is whether or not the claim is acceptable. For the employer's appeal to be successful, the panel must find, 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 panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the evidence before us, on file and as presented at the hearing, the panel is satisfied that the worker sustained an acute injury to her lower back as a result of the duties and tasks she was performing at work on the morning of January 27, 2021, and that her claim is acceptable.
The panel notes that the employer's representative acknowledged at the hearing that they did not dispute that the worker was working the day she was injured; that the bus the worker normally drove broke down; and that the worker had to take a different bus to perform her duties that day. The representative further acknowledged that the question was whether what the worker described as having occurred would have resulted in an injury.
The employer's representative further acknowledged that what they were suggesting was that because of the medical evidence, particularly the medical opinion from the WCB medical advisor, they did not believe that an injury arose out of the worker's duties and the tasks she performed on January 27, 2021.
In response to questions from the panel, the worker agreed that the replacement bus she was given was similar in terms of size and the number of passengers it could carry to the bus she normally drove, but noted that it was from a different company and there were differences. With respect to problems with the seat, the worker indicated that it was not that she could not move the seat forward, it was that she could not set it in that position. She said that because she could not push the seat forward enough, she had to stretch her leg to reach the gas pedal all the time, and that this, plus the fact that the gas pedal was very stiff, was why she felt so uncomfortable. The worker noted that she was also nervous and stressed, because she had not been with the employer that long and was late starting her duties.
The panel is satisfied that the mechanism of injury as described was consistent with the worker experiencing an injury to her lower back area. The panel accepts the worker's evidence that she was unable to move her seat forward and had to really stretch her leg to reach the gas pedal over a period of approximately two hours while performing her work duties that day. The evidence further shows the worker was unable to complete her duties that day; that she reported the injury to her employer and immediately sought attention from her chiropractor.
The panel is further satisfied that the worker sustained an injury to her lower back area on January 27, 2021 which was causally connected to the nature, conditions and obligations of her employment that morning and that the injury occurred within the time of employment while she was performing her work duties.
The panel acknowledges the employer's comments with respect to the WCB medical advisor's March 9, 2021 opinion, but is satisfied that the evidence supports, on a balance of probabilities, that the worker's claim is acceptable for a low back injury.
The panel would add that, as previously stated, the issue is claim acceptability. The panel is therefore not dealing on this appeal with issues relating to ongoing benefits, including the duration of any benefits the worker may be or have been entitled to receive, and makes no comments in that regard.
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 employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of December, 2021