The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable and that the worker is entitled to wage loss and medical aid benefits.

A teleconference hearing was held on October 19, 2021 to consider the employer's appeal.

Issue

1. Whether or not the claim is acceptable; and 

2. Whether or not the worker is entitled to wage loss and medical aid benefits.

Decision

1. That the claim is acceptable; and

2. That the worker is entitled to wage loss and medical aid benefits.

Background

On May 22, 2020, the employer submitted an Employer's Incident Report to the WCB indicating the worker injured her lower back in an incident at work on May 19, 2020 that was reported to them the same day. The worker reported feeling a sharp pain in her lower back after exiting her vehicle. The employer noted that the worker was offered modified duties but declined. It was further noted that the worker and her physician indicated this was a re-aggravation/exacerbation of a pre-existing injury.

The worker was seen for an initial assessment with her treating chiropractor on May 21, 2020. The worker reported to her chiropractor that she "…felt her back go out as she was getting out of the car." The worker also reported difficulty moving, with right side sciatica pain, initially a 7/10, now over 10/10. The chiropractor diagnosed the worker with an exacerbation of previous lumbar disc herniations and recommended the worker remain off work, with a possible return to work on June 9, 2020.

On May 29, 2020, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury, noting she continued to work until her pain became unbearable and she contacted the employer to advise of the incident. The worker confirmed she sought medical treatment from her treating chiropractor on May 21, 2020 and was advised to rest. The worker said she hurt her back in 2017, and an MRI taken at the time indicated a bulging disc at L4-L5. At that time, her treating chiropractor told her she might experience flare-ups or exacerbation in the future due to the injury. The worker indicated she was continuing treatment with her chiropractor and taking pain medication as needed.

The employer contacted the WCB on June 1, 2020 to note their concerns with respect to the worker's claim. The employer advised that they did not feel the injury was work-related; that the worker "…was simply getting out of a car and experienced discomfort related to an injury not work related." The employer further noted that light duties were discussed and offered to the worker on May 22, 2020, but the worker declined the offer.

On June 2, 2020, the WCB accepted the worker's claim for a low back injury and the payment of various benefits, including wage loss benefits, commenced.

At a follow-up appointment on June 9, 2020, the worker's treating chiropractor noted the worker could return to modified duties by the following week and the worker returned to work on June 17, 2020. On June 30, 2020, the worker reported she hurt her back again on June 25, 2020 while performing modified duties, and the WCB accepted this as an aggravation of the May 19, 2020 workplace accident. On July 30, 2020, the worker's treating chiropractor cleared the worker to return to her regular duties.

On August 20, 2020, the employer's advocate requested that Review Office reconsider the WCB's decision to accept the worker's claim and provide wage loss and medical aid benefits. The advocate noted the worker had a history of chronic back pain, resulting from a back injury that occurred in 2017; that an MRI performed at that time indicated the worker had a bulging disc at L4-L5; and that the worker sought chiropractic care and was told she would have flare ups or exacerbation in the future. The employer's advocate submitted that the worker's difficulties were related to her ongoing pre-existing low back condition, and were not the result of an accident arising out of or in the course of the employment. The advocate further noted that the worker was offered light duties, and submitted that the worker was not totally disabled and would have been capable of performing those duties. On September 18, 2020, the worker provided a submission in response to the employer's request for reconsideration, and the employer's advocate responded to that submission on September 28, 2020.

On September 30, 2020, Review Office determined that the worker's claim was acceptable and the worker was entitled to wage loss and medical aid benefits. Review Office found that in the course of performing her job duties on May 19, 2020, the worker felt a sharp pain in her lower back while exiting her vehicle. Review Office found that driving to the client's home was part of the job duties, and concluded that the worker suffered an injury arising out and in the course of her duties and the claim was acceptable. With respect to the payment of benefits, Review Office found that the medical evidence did not support the worker was initially capable of performing the modified duties offered by the employer, and observed that at times, workers require time off to heal regardless of whether the employer has modified duties.

On May 6, 2021, the employer's advocate filed an appeal with the Appeal Commission and a teleconference hearing was arranged.

Reasons

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.

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, 

(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(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from 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) of the Act states that the WCB "…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 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.05, Arising Out of and in the Course of Employment, 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.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of that Policy is stated, 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.

Other WCB policies which were referred to and considered on this appeal were:

• WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"); 

• WCB Policy 44.05.20, General Premises (the "General Premises Policy"); 

• WCB Policy 44.10.50.50, Travelling on the Job.

Employer's Position

The employer was represented by an advocate and by its Regional Manager, Occupational Safety & Health. The advocate made a submission at the hearing, and the advocate and the Regional Manager responded to questions from the panel.

The employer's position was that the claim is not acceptable, as the worker's injury did not arise out of and in the course of employment. The employer's further position, in the event the claim was found to be acceptable, was that the worker is not entitled to wage loss and medical aid benefits, as the employer offered suitable duties which the worker refused.

The advocate submitted that the worker had a history of back problems dating back to at least 2017, when she suffered a back injury while working for another employer, and probably earlier, as well as a family history of back problems. The worker therefore came to the job with the employer with longstanding chronic back pain for which she was under continual care. The advocate noted that an extensive history of absenteeism from the time the worker was hired in September 2019, reinforced that her issues were not work-related.

The advocate noted that the worker had been told by her treating chiropractor that she would have flare ups or exacerbation in the future. The advocate submitted that the file evidence indicated that the worker's pre-existing back condition could flare up with no inciting event, or with the slightest motion or misstep, and it did not matter where the worker was or what activity she was doing, whether she was going for a walk; skimming her pool; sweeping the floor; getting in and out of her car, at home or at work; or moving the wrong way.

The advocate submitted that there was minimal medical evidence on this claim. The advocate noted that the initial chiropractor's report on May 21, 2020 provided a diagnosis of exacerbation of previous lumbar disc herniations, and indicated clinical findings of reduced flexion due to pain. The advocate noted, however, that pain itself is subjective. The advocate further noted that while the worker told her chiropractor on May 21, 2020 that she felt back pain as she was getting out of the car, this was not corroborated in a report from the worker's attendance at a local emergency department on May 24, 2020, where it was noted that the worker reported no mechanism of injury, that the pain had been gradually worsening over three to four days and that there was no particular inciting incident. The advocate submitted that the emergency department report did not point to an acute workplace injury and subsequent chiropractic reports showed essentially the same findings.

The advocate further submitted that the mechanism of injury was so minor that it would not be expected to produce the type of debilitating symptoms that were claimed. The worker was simply going to exit her car, which was a normal activity of daily living, and she had a flare up of her pre-existing chronic low back pain. The advocate submitted that this was the sort of thing that could happen anywhere and anytime, and did in the worker's case.

The advocate noted that the General Premises Policy states, in part, that the WCB will make a distinction between an injury resulting from a personal cause and one resulting from employment. The advocate submitted that the worker's condition did not result from her employment activities. It was not caused by a hazard of the premises, nor was it an occurrence under the control of the employer. The employer has no control over her body movements or posture, or the frequent flare ups arising from her pre-existing condition.

With respect to the issue of the worker's entitlement to benefits, the advocate submitted that at the most, the worker experienced a minor flare up of her pre-existing condition as a result of the incident, which would not have interfered with her ability to work at least modified duties and would have been of short duration.

The advocate submitted that the evidence did not support that the worker was totally disabled or unable to work modified duties. The medical reports did not provide clinical findings of complete and total disability. The worker was not confined to bed, attended a training session within a day or two of the date of the incident, and was able to drive to and attend chiropractic treatments.

The advocate noted that the employer has a long history of accommodating injured workers, and a vast range of modified duties they can offer. The worker was offered light, sedentary duties with no lifting or bending requirements, but declined those duties, indicating it was better for her to rest and heal.

The advocate submitted that the modified duties which were offered were no more arduous than anything the worker would have been doing at home. Had the demands of those modified duties been compared to the worker's compensable medical restrictions, as contemplated under the Return to Work Policy, they would have been found to be suitable. The advocate submitted that given the worker's refusal to participate in such suitable work, the worker was not entitled to benefits.

In conclusion, the advocate submitted that the worker did not suffer a work injury, nor was she disabled as a result of any such injury, and the employer's appeal should be granted.

Worker's Position

The worker did not participate in the appeal.

Analysis

Issue 1: Whether or not the claim is acceptable.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of her employment. For the reasons that follow, the panel is unable to make that finding.

The advocate acknowledged at the hearing that driving to a client's residence and entering that residence were all part of the worker's job duties. The advocate further acknowledged they did not dispute that the event which gave rise to the claim arose "in the course of" the worker's employment. The advocate confirmed that what was at issue on this appeal was whether this was an event which arose "out of" the employment.

The panel notes that it is clear from the information which is before us that the worker has pre-existing back problems which date back to at least 2017, for which she had been receiving periodic treatment from her treating chiropractor. The worker attended her treating chiropractor the second day after the date of incident, at which time the chiropractor noted the worker felt her back go out as she was exiting the car and diagnosed her with an exacerbation of previous lumbar disc herniations.

The panel finds that the mechanism of injury as described is consistent with a low back injury having occurred. In the employer's Occurrence Report form which the worker completed on the day of the incident, the worker indicated that "As I got out of my vehicle I felt stiff, sharp pain in my low back. It intensified as I tried to stand straight & stretch out…" In a subsequent telephone conversation with the WCB adjudicator, the worker further confirmed that "…she felt the pain as soon as her feet were on the ground from getting out of the car and she held on to the car door so she could push herself up and rest for a few minutes…" The panel is satisfied that the injury did not result from the worker just sitting in her car or putting her foot or feet on the ground, but from the entirety of the worker's actions as she exited the vehicle.

The panel is further satisfied that the injury did not result from a personal cause or personal action, but from the worker's employment. The action or activity of getting out of the car at the client's residence while on her way to see the resident had its origins in the worker's employment or job duties, or in other words, was reasonably incidental and causally related to her employment.

The panel notes that just because the worker had experienced previous flare ups or was prone to flare ups did not mean that the May 19, 2020 flare up of her back condition was not related to her work duties. While the evidence indicates the worker was subject to flare ups, the flare up or aggravation in this case was directly related to her employment activities.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury, being an aggravation of her pre-existing back condition, which arose out of and in the course of her employment. The worker's claim is therefore acceptable.

The employer's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to wage loss and medical aid benefits.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity and/or require medical aid as a result of her May 19, 2020 workplace incident. For the reasons that follow, the panel is unable to make that finding.

The evidence shows that the employer offered modified duties to the worker on May 22, 2020. While the employer has argued that the worker refused the offer of modified duties, the panel notes that the worker had seen her treating chiropractor the day before, and her chiropractor had placed her off work until at least June 9, 2020. The worker subsequently clarified to the WCB that she did not refuse modified duties, but felt that she could not make a decision at that time without speaking to her chiropractor.

The panel notes that the offer of modified duties was made within a very short period of time after the workplace incident, and is satisfied that it was reasonable for the worker to want to seek the advice of her chiropractor in this regard. The panel was unable to identify any indication on the file of any further discussions the employer had with the worker with respect to a return to work. In response to a question in this regard, the advocate was similarly unable to recall any such reference on the file.

File information shows that the employer contacted the WCB on May 27, 2020, and confirmed their ability to offer the worker modified duties. Whether or not specific duties were identified is unclear. In any event, the duties unfortunately do not appear to have been canvassed or discussed with the worker or her healthcare provider at that time.

In the circumstances, the panel is satisfied that the worker suffered a loss of earning capacity as a result of her compensable injury and was entitled to receive wage loss benefits.

In response to a question with respect to medical aid benefits, the advocate stated that in the event the claim was found to be acceptable, they did not feel any of the chiropractic treatments the worker received were the responsibility of the WCB. The advocate noted that the worker attended chiropractic treatment almost continuously prior to the incident, and that all the treatments she received were aimed at her discogenic problems. The advocate submitted that there was nothing different in the worker's complaints or in the treatment she received before and after the May 19, 2020 incident.

The panel is satisfied that given the compensable injury in this case is an aggravation of the worker's pre-existing back condition, medical aid, including chiropractic treatment, was required to cure and provide relief from that compensable injury. That the treatment may have been similar to what she had been receiving would seem to be consistent with the nature of the injury and not inappropriate.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid as a result of her May 19, 2020 workplace incident. The worker is therefore entitled to wage loss and medical aid benefits.

The employer's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of December, 2021