Decision #150/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim for compensation was not acceptable. A teleconference hearing was held on November 25, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed a claim with the WCB for a left low back injury on September 25, 2015 in which the worker described the injury as follows:
Not sure if it's from doing my job or the long flight to…on the second jobsite. My job involves…a lot of sitting, some bending, awkward positions. I don't recall being in an awkward position out there. For the most part I felt fine on Friday. But on the way driving home I had very minor discomfort on Friday, September 18, 2015 as I was coming from…a jobsite driving home... The discomfort was like I had a bad sleep. That's why I didn't think anything of it. It carried through the weekend. Then my company sent me out to…and when I got off the plane arriving there, I had real issues: very painful to lift my leg, walk up or down steps, painful to bend over, painful to lift with the left side of my body.
The Employer Injury Report of September 30, 2015 indicated the worker reported the accident on September 29, 2015 in a telephone conversation indicating they had a sore back the previous week. The worker advised the employer they had not lifted anything during the week other than their suitcase which was light. The worker advised they drove back from the work site on Friday and on arriving home their back was a little sorer. Over the weekend it was still bothering them and on a flight Monday morning the worker still found their back was bothering them. The worker advised that a doctor prescribed muscle relaxants and physiotherapy and told them they should not sit but walk around or lie down.
On October 5, 2015, a WCB adjudicator spoke with the worker and obtained further information. The worker advised that on returning from a job site on September 25, 2015, they had minor back discomfort but didn't think anything of it. The discomfort continued through the weekend, with tightness. On September 28, 2015 the worker got on a plane and upon arrival at the destination, could barely move their legs and their low back was in a lot of pain. The worker indicated they went to the job site for a couple of hours and then went to a walk-in clinic. The worker described their job duties as involving computer programming with field work at customer sites. The worker uses a laptop and a variety of hand tools in doing the job, which can require odd positions with bending and twisting and working in any range from at their feet to above their head. The worker stated they had no issues on the job site on September 25, 2015. They lifted a tool bag weighing approximately 25- 30 pounds and a personal backpack and unloaded a 20-foot ladder in the shop upon return.
In a further phone call with the WCB on October 6, 2015, the worker advised they had no prior back issues. The worker said that due to their height and shoulder width, they felt soreness from their shoulders down to their feet from trying to contort into the seat of a plane. The worker stated they may have twisted when off-loading. The worker noted the drive home on September 25, 2015 took approximately seven hours and over the weekend following, they felt something like a dull low back ache that worsened during the flight and was very painful after flying on September 28, 2015.
The WCB advised the worker by letter dated October 7, 2015 that their claim for low back difficulties was not acceptable on the basis that it could not determine that an accident occurred, arising out of and in the course of the worker’s employment.
In a telephone call to the WCB on October 15, 2015, the worker indicated that they had no back pain when driving and did not notice pain until they returned and unloaded their vehicle at the shop. The worker felt that the WCB misinterpreted their accident report, noting they had a box of parts in their van that contained manual documentation and additional tools. They unloaded their toolbox and a ladder at the shop and felt pain and discomfort after doing so. In a further decision dated October 15, 2015, the WCB confirmed that the worker's claim was not acceptable, noting the worker confirmed multiple times that the initial mechanism of injury and back pain occurred while driving back from another province and this correlated with the initial medical information on file. Then, after their claim was disallowed, the worker attributed their injury and subsequent pain to the flight and the economy seating.
On December 22, 2015, a worker advisor appealed the October 15, 2015 decision to Review Office. On January 19, 2016, the employer responded to the appeal stating that they agreed with the WCB to deny the claim. Both the worker advisor and the employer provided Review Office with additional submissions. On February 25, 2016, Review Office determined the claim was not acceptable. Review Office indicated the worker and their advisor provided numerous potential scenarios to the Review Office and believed the development of the worker's lower back difficulties may have been the result of workplace activities. Review Office stated that it was not able to make this determination, placing weight on the worker's initial statements that the pain and discomfort began after an insidious onset and not in relation to any specific event. Further, the worker was not consistent in their reporting of the dates or mechanisms of their injury to the WCB. Review Office found these inconsistent reports did not support a determination that an accident had occurred.
The worker’s representative filed an appeal with the Appeal Commission on June 23, 2020. A teleconference hearing was arranged for November 25, 2020. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On December 6, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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,
(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.
The WCB has established Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Out of Policy”) which sets out 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 WCB has also established WCB Policy 188.8.131.52, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, 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.
The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy goes on to provide that 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, but that 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 worker appeared in the hearing, represented by legal counsel. The worker’s counsel provided the panel with an oral submission in the hearing. The worker’s representative also provided written submissions in advance of the hearing and provided a further written submission in response to the additional information obtained by the panel subsequent to the hearing. The worker offered testimony in response to questions posed by their counsel and in response to questions from the appeal panel.
The worker’s position, as outlined by their legal counsel, is that the worker injured their back while in the course of their employment and therefore the worker’s claim should be acceptable.
The worker testified as to the nature of their job duties and detailed the nature of those duties undertaken in the week prior to the date of the reported injury. The worker advised that they were away on assignment and had driven their own vehicle to and from the job site where they spent 5 days working. On the last day, September 25, 2015, the worker loaded up their tools and supplies and drove approximately 7 hours back to the employer’s premises, arriving at around 9:00 p.m. The worker unloaded their equipment and on doing so, noted some minor discomfort and tightness in their lower back, on the left side. The worker indicated they did not think much about the symptoms at that time and went home to bed. The next day, the worker went into the office to work a short day.
The worker testified that they flew to another job site on Monday, September 28, 2015. The employer had booked economy cabin seats, as was usual. The worker indicated that due to their body size they are unable to sit comfortably in an economy seat and sought accommodation from the airline, who provided the worker with an adjoining second seat for the flight of approximately 2.5 hours. The worker stated that on arrival, they noted pain in their lower back, extending down into their leg. They stretched out and then hurried to catch their next flight, on which they were again able to obtain an empty seat beside them. The worker testified that having an adjacent vacant seat allows more space, but the confinement and twisting irritates their back.
On arriving at their final destination, the worker walked to loosen up and then picked up their rental car and drove to the customer site where they worked for a few hours, walking as needed for relief. The worker noted that on leaving the customer site, they had difficulty in lifting their left leg into the vehicle. As a result, the worker went to a walk-in clinic for assessment. The worker described that they used medication as well as walking or laying down for pain management. The worker indicated they called the WCB the next morning and also spoke with the employer, and then went to work, finishing the job as required over the course of the next three days. The worker advised that they were able to continue working by taking walking breaks to loosen up and relieve the pain and stiffness in their leg and lower back.
The worker returned home on Friday, October 2, 2015 and subsequently sought a second opinion from their own physician and spoke again with the WCB about the injury. The worker confirmed that they did not engage in any physical activity other than work during this period.
The worker testified that their back condition has worsened with time and that they now walk with the aid of a cane or walking sticks, cannot take the bus and have difficulty sleeping due to pain. The worker stated their body is “very positionally sensitive” and indicated that twisting and moving causes pain.
In response to panel questions, the worker confirmed that they did not return to work for the employer after their return from the trip on October 2, 2015 but did meet with the employer on October 5, 2015 to advise that they were seeking a further medical opinion. The worker further confirmed that their job required them to fly approximately 6 times during the 9 months they worked for the employer and that the employer made all flight arrangements, as well as other travel arrangements. The worker confirmed that the photograph on the WCB claim file shows the worker seated on an airplane.
The worker advised the panel that the MRI studies were ordered by their treating family physician and the worker further described their symptoms as including referred pain down their leg, occasional muscle spasms, dull chronic pain in their lower back, and muscular tightness in their lower back and buttocks which causes compression on the nerves. The worker confirmed that they have been seeing their treating chiropractor regularly since late 2015 and that they consulted with an orthopedic surgeon in 2016, who advised they were not a surgical candidate. The worker also indicated that they saw a physiotherapist on only one occasion, for assessment on October 5, 2015.
The worker’s legal counsel outlined the worker’s position that the worker was injured as a result of their participation in their job duties during the days leading up to their attendance for medical treatment on September 28, 2015. The worker’s counsel acknowledged it is not possible to ascertain which of the series of events of that week caused the onset of the worker’s symptoms but suggested that the worker’s back condition was aggravated by loading and unloading of tools and equipment on September 25, 2015, by driving from the jobsite to the employer’s premises on September 25, 2015 and by flying to the next jobsite on September 28, 2015, seated in an awkward position. The worker’s lawyer indicated that each of these events is an accident as defined by the Act, and further, that the Arising Out of Policy provides that generally an injury 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, which is the case here. The worker’s counsel also emphasized that there is no evidence of any other incident or activity that would have brought on the worker’s symptoms, outside the duties of the worker’s employment.
Finally, the worker’s counsel submitted that the decision of the Review Office is based upon the application of a higher standard than is applicable here, in that the review officer was of the view that based upon variations in the worker’s reporting of the cause of injury, the worker was not credible and therefore the worker’s reports could not be relied upon and the claim could not be allowed.
The worker’s counsel provided further submissions in response to the medical information obtained by the panel following the hearing. In those submissions, counsel noted that the medical information confirms the worker’s complaints that their symptoms began while in the course of their job duties in September 2015 and further that there is evidence of damage to the worker’s lumbar spine, particularly from L2 – S1. As well, the worker’s counsel noted the worker’s own comments in response indicating the report of October 20, 2020 contained a misdiagnosis, and that the reports from other treating physicians contradict this diagnosis.
In sum, the worker’s position is that their testimony and the medical reporting support a finding that the worker was injured in the course of and as a result of participating in their work duties in late September 2015, and that for this reason, the claim should be acceptable.
The employer was represented in the hearing by a human resources manager and a payroll administrator.
The human resources manager provided information on behalf of the employer but did not take any position with respect to the worker’s appeal.
The employer’s representative testified that when the worker was recruited to the job, the recruiter noted the need to accommodate the worker’s body in travel and told the employer that the worker sometimes takes time to adjust after travel. The employer’s representative noted that when the worker called to advise of their symptoms on September 29, 2015, the employer offered to remove the worker from that jobsite, but the worker declined. The employer’s representative also noted that when tools and equipment required for any job exceed 25 pounds in weight, the employer will ship those to the site so that the worker would not have had to transport, load or unload anything heavier than that.
The issue on appeal is whether the worker’s claim is acceptable. For the panel to grant the worker’s appeal, we would have to find that the worker was injured as a result of an accident arising out of and in the course of the worker’s employment. As outlined in the reasons that follow, that panel was able to make such a finding and the worker’s appeal is therefore granted.
The panel noted the worker reported initial onset of some back pain and stiffness beginning on September 25, 2015 upon their return to the employer’s premises and unloading their equipment after a week away at a jobsite, but that the worker did not think it amounted to anything. It was not until disembarking from the 2.5-hour flight to another jobsite on September 28, 2015 that the worker noted further symptoms, of greater intensity, which they testified increased through that day but could be controlled with walking and stretching so that the worker was able to attend a customer site and work there for a few hours. On completing their workday, the worker’s symptoms had increased to the point where they sought medical attention at a walk-in clinic.
The panel considered the medical reporting most contemporaneous to the date of the worker’s claim, noting that there is no medical reporting indicating any prior history relating to the worker’s low back.
The walk-in clinic physician consulted in the jobsite location on September 28, 2015 reported the worker’s injury as a herniated disc with clinical findings of a positive left straight leg raise at 15 degrees, decreased deep tendon reflex and decreased range of motion on back flexion. The physician also noted the worker’s complaint of low back pain and left leg paresthesia.
The worker’s treating family physician reported on October 5, 2015 that the worker “has herniated disk in back” referencing the worker’s report that nothing specific happened but that there was onset of pain on getting back onto a plane and noting that the worker reported they never had similar pain previously. The lumbosacral x-ray taken that date indicates mild disc space narrowing at L3-L4 and L4-L5. The physician requested an MRI as well.
The worker also consulted and was assessed by a physiotherapist on October 5, 2015 who noted the worker’s report of pain on unloading equipment and further symptoms on flying thereafter. The physiotherapist recorded sharp radiating pain with hip flexion, radiating to outer hip and anteriorly into the inguinal crease and hip flexion more limited on left than right. The physiotherapist noted a diagnosis of low back strain/disc irritation and recommended a few weeks of treatment. The panel noted the worker testified they did not return for further physiotherapy as the WCB did not accept the claim.
The worker testified that they sought further treatment from a chiropractor and the November 4, 2020 report from the treating chiropractor indicates the worker first attended on November 26, 2015 complaining of lower back pain with a pulling pain down the back of their left leg. The worker indicated that their symptoms were controlled by walking short distances and aggravated by sitting and laying down. The chiropractor noted the worker to have difficulty walking erect and weakness to the leg, with abnormal station and gait and numbness into the leg exacerbated by testing, and stated that the worker “was showing all the signs and symptoms of a herniated disc.”
The worker also sought treatment at a sport medicine clinic on December 4, 2015 for a second opinion with respect to this injury, indicating left low back pain with intermittent radiation to both buttocks when standing and down both legs to behind the knee with sitting. The treating physician recorded findings including full lumbar flexion and normal extension, normal straight leg raise and normal heel and toe walk, with some paraspinal tightness. The diagnosis offered was back strain and the worker was advised to treat with weight loss and anti-inflammatory medication.
The WCB noted that the worker’s report of the onset and cause of injury were not consistent, in that the worker attributed the symptoms in some cases to driving and loading and unloading equipment on September 25 and at other times to flying on September 28. The panel does not agree that this means the worker is not credible, but rather understands that the worker was not certain what caused or aggravated their low back symptoms. The worker’s testimony to the panel outlined that they noted some discomfort on September 25, when they returned to the employer’s premises at the end of the day but that the symptoms were not significant until September 28, when the symptoms worsened after the worker disembarked from the first flight and again after the second flight, and again after working a few hours at the customer’s site. The worker’s testimony confirms that there was not any moment of acute injury but that their symptoms appeared gradually and worsened over a few days and were aggravated by sitting and by awkward positioning. This is consistent with the worker’s reports to the treating medical professionals throughout.
While there is no evidence here of any specific incident or event that directly caused the worker to sustain an injury, the Act defines an accident to include any “thing that is done and the doing of which arises out of, and in the course of, employment”, that causes injury. Further, the Arising Out of Policy sets out that an injury arises out of employment if the activity giving rise to it is caused by some hazard resulting from the nature, conditions, or obligations of the employment.
Based upon the medical findings for the period following the worker’s claim of injury, the panel is satisfied that there is evidence the worker sustained injury to their lower back as a result of activities arising out of and in the course of their employment over the course of the period from September 25-28, 2015.
The worker’s counsel submitted that the diagnostic findings as outlined in the May 11, 2016 MRI study are all causally related to the worker’s accident. The panel noted that this study revealed “Multiple degenerative changes of the L-spine including further narrowing of the already narrow canal by lipomatosis….Multilevel compression of the thecal sac and caudal fibers most pronounced at L4-L5 with spinal canal stenosis. Multilevel not significant foraminal narrowing.” At L4-L5 in particular, the MRI showed loss of height of the intervertebral disc and central broad based disc bulging, narrow spinal canal and associated pronounced facet arthropathy and hypertrophy of the flava ligaments. Disc bulging was also noted at L2-L3 (minor), disc protrusion at L3-L4, and central disc protrusion at L5-S1.
The panel rather finds that the May 2016 imaging confirms the worker has a multilevel degenerative back condition with changes noted at all levels below L2. Although the worker’s counsel submitted that these findings relate to the workplace accident, we do not agree that the evidence supports such a conclusion. Given the mechanism of injury and gradual onset of symptoms, as well as the extensive multilevel degeneration revealed by the MRI, we find that the evidence supports that the worker’s degenerative back condition is a pre-existing condition. There is no evidence before the panel of any work-related activity or incident that could possibly have caused the extent of the back condition revealed by the May 11, 2016 MRI.
The panel is satisfied that the evidence supports a finding that the worker sustained a minor injury to their back, in the nature of a soft tissue strain-type of injury, as was diagnosed by both the treating physiotherapist and the treating sport medicine physician, in the environment of this pre-existing, extensive degenerative condition. Further, there is no evidence to support that this minor low back injury in any way enhanced the worker’s pre-existing condition and the panel specifically does not accept that the worker’s ongoing back issues some 6 years after the accident are causally related to the compensable injury.
We are satisfied on the basis of the evidence and on a standard of a balance of probabilities that the worker sustained a minor soft tissue injury to their low back arising out of and in the course of participating in their continuing job duties. This injury was the result of an accident as defined by the Act and the worker’s claim should therefore be acceptable. The worker’s appeal is granted.
K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of December, 2021