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 videoconference hearing was held on February 15, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on September 8, 2020, indicating they injured the right side of their lower back at the hip/tailbone region as the result of an incident at work on September 4, 2020. The worker described that on September 4, 2020, they began to experience sharp pains on the right side of their lower back at their hip/tailbone, which worsened with walking. The worker reported increasing pain over the next two days and reported the injury to their employer on September 6, 2020.

On September 9, 2020, the worker sought medical treatment from their family physician, reporting pain at their right hip, with shooting pain into their right leg made worse with walking, that traveled to their right knee. The physician noted normal range of motion in the worker’s right hip and knee and a negative straight leg raise, diagnosed tibial band pain and recommended the worker remain off work for one week. At follow-up appointment on September 21, 2020, the worker continued to report steady pain at their right hip, into their right leg and knee and the treating physician recommended further time off work.

When the WCB spoke with the worker on September 22, 2020 to discuss their claim, the worker advised no specific incident occurred to cause the difficulties they were experiencing but that they noted sharp pains in their hip and tailbone when they were walking, beginning in early September 2020. The worker advised their job duties involved walking for most of their shift, with symptoms increasing with walking and improving with rest. The worker confirmed there was no change in their duties at the time they first noticed the symptoms and that they reported their difficulties to their employer within two days of initially noticing the difficulties. The worker also noted mentioning their difficulties to their manager and two other co-workers. On September 25, 2020, the WCB spoke with the co-workers who confirmed the worker advised them of the difficulties they were experiencing. The worker advised the WCB on September 28, 2021 that they attempted a return to work on September 21, 2020 but had to discontinue working on September 26, 2020 due to an increase in pain.

At a follow-up appointment with the worker on September 28, 2020, the physician revised the diagnosis to tibial band pain/sciatica taking into account the worker’s report of continuing pain in their right hip and gluteal area, shooting into their right lower leg. When the worker attended for an initial physiotherapy assessment on October 1, 2020, they reported to the physiotherapist they were walking at work on September 6, 2020, when they felt increasing gluteal area symptoms that radiated down their right leg. On examination, the physiotherapist provided a diagnosis of a right sacroiliac joint irritation and recommended restrictions of no lifting or extensive walking. At follow-up on October 8, 2020, the physiotherapist noted the worker had been doing graduated walking and their tolerance had increased. The restrictions were updated to limited walking and standing tolerance, cautious with repetitive lifting and carrying over twenty pounds.

The WCB obtained additional information from the employer on November 6, 2020. The employer advised that the worker informed them they were having back difficulties, and that the worker was not sure what caused it but related it to the walking portion of their job duties. The employer did not note any specific injury and did not report any increase in the worker’s job duties.

On November 25, 2020, the WCB advised the worker their claim was not acceptable as it could not establish there was a causal relationship between the worker’s difficulties and an accident arising out of or in the course of their employment.

On December 24, 2020, the worker submitted to the WCB a detailed chronological report prepared by the physiotherapist, outlining treatment provided, and the worker requested the WCB reconsider the decision the claim was not acceptable. A WCB physiotherapy consultant reviewed the information provided by the treating physiotherapist on January 7, 2021 and noted the worker was initially diagnosed with “…insidious onset of right hip/low back pain…” with no apparent workplace injury identified and the current diagnosis was non-specific/non-radicular low back pain. The WCB physiotherapy consultant opined that without an identified workplace accident, the diagnosis could not be medically accounted for in relation to a workplace injury. On January 8, 2021, the WCB advised the worker there would be no change to the earlier decision.

On February 12, 2021, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted that in August 2020 there had been a change in the equipment they were required to carry while walking, with increased weight, and that their treating healthcare providers identified this change as the cause of their sacroiliac joint and low back issues. Further, the worker noted they reported their injury promptly to their employer and their coworkers had witnessed their complaints of increased back pain. Review Office determined on February 24, 2021 that the worker’s claim was not acceptable. Review Office found that the information on file indicated the worker did have hip and back difficulties while performing their job duties, but the evidence did not support those difficulties occurred while they were in the course of or arose out of their employment.

The worker’s representative filed an appeal with the Appeal Commission on August 30, 2021. A videoconference hearing was arranged for February 15, 2022. 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 May 4, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The definition of “accident” is set out in s 1 of the Act 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…

Section 4(2) of the Act provides that a worker 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. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker, and subsequent to the hearing, on reviewing the additional information obtained by the appeal panel, provided a written submission as well. The worker provided testimony through answers to questions posed by the worker advisor and in response to questions from members of the appeal panel.

The worker’s position, as outlined in the worker advisor’s submissions, is that the worker sustained injury to their right-side low back and hip area as a result of carrying out the daily obligations of their work and therefore the injury was sustained by doing a “thing that is done and the doing of which arises out of, and in the course of, employment”. For this reason, the worker’s claim should be acceptable.

The worker advisor set out that the medical reporting confirms the worker sustained injury to their right low back and hip area. They noted that although the worker has a pre-existing diagnosis of scoliosis, the worker’s present injury is not related to that diagnosis. The medical reporting confirms that the worker developed a repetitive strain type of injury as a result of carrying additional weight for a period of time in August 2020, plus the extensive walking the worker does in the course of their daily work.

The worker advisor outlined the evidence that the worker walks some 20-25 km daily while wearing a belt carrying items including a one-litre water bottle, first aid kit, hand sanitizer, pens, an extra battery, a radio device and two phones. The normal weight of the loaded belt is approximately 10 lbs, which is loaded mostly to the right side of the belt. In August 2020, the worker also carried two additional radio devices for a period of time on a trial basis, adding just over 2 lbs to the total weight of the belt. The worker advisor also noted that the worker had increased their hours from part-time to full-time approximately four months previously.

The worker advisor stated the medical evidence confirms the worker’s symptoms resolved with time and treatment and the worker was able to return to their work. With respect to the pre-existing diagnosis of scoliosis, the worker advisor confirmed there is no evidence that this was causing the worker any difficulty immediately prior to this injury and that the worker had received treatment to address symptoms arising from this pre-existing condition approximately three years earlier with no further treatment required since then.

The worker advisor noted that the worker is not a large person and that the increased weight of the belt carried in their work represented some 8% of the worker’s total body weight, which was unevenly distributed toward the worker’s right side. This is where the worker’s hip and low back symptoms developed.

The worker advisor relied upon the July 26, 2021 opinion provided by the treating physiotherapist in support of the worker’s position that they sustained a repetitive stress injury as a result of undertaking their work duties within the environment of the worker’s pre-existing scoliosis, and as confirmed by the worker’s recovery when placed off work and therefore under decreased physical stress in the area of injury.

The worker provided testimony as to their specific daily work duties, noting that they spend most of their workday walking. Although the worker was in a supervisory role, they spent most of their day doing the same work as the staff supervised, plus less than half an hour daily of office-based work. The worker described the contents of their belt to the panel, indicating the purpose of each item. They noted that the primary radio is used for team communications and the additional radios, in August 2020, were for communication with another team and as a test of potential new equipment. The three radios together weighed approximately 4 lbs. The worker confirmed that they increased their work hours as of April 23, 2020 from 21 to 35 hours weekly. As a result, they walked much more each week.

The worker testified that they first noted symptoms a few days before making their claim, in early September 2020. Initially, the worker experienced sharp, shooting pain in their lower back between their spine and hip. The pain would shoot down the worker’s right leg, causing them to lose footing sometimes. The worker recalled being completely off work approximately 2-4 weeks. During that time, they rested, received physiotherapy and did at home exercises. They used medication to control symptoms and wore a belt to stabilize their pelvis. The worker described returning to work on a gradual basis over the course of several months, noting that with a move to a new employer, their daily work hours increased to 10-hour shifts. The worker confirmed that although they enjoy hobbies including hunting and fishing, they were not able to do these during the time when they were recovering from this repetitive strain injury. On questioning by members of the appeal panel, the worker noted they were recovered to the extent they are able to work 8-hour shifts and walk some 30,000 steps daily.

The worker provided additional information about their pre-existing diagnosis to the panel, noting that they were diagnosed in 2016 or 2017 and treated primarily with home-based core strengthening exercises. The worker indicated that they were able to manage those symptoms, which were located in their middle to upper back, with functional strength training.

In response to the additional medical information obtained by the appeal panel following the hearing, the worker advisor submitted that the chart notes support the worker’s testimony that their scoliosis was not problematic after the initial treatment provided.

In sum, the worker’s position is that they suffered a repetitive strain injury as a result of carrying the heavy work belt with most of the weight distributed on the worker’s right side. In the context of the worker's pre-existing scoliosis and the number of kilometres walked each shift, the weight of the tool belt more likely than not resulted in the worker’s injury. As the worker was injured by a hazard of the employment, the claim should be acceptable.

Employer’s Position

The employer appeared in the hearing represented by its director of human resources, who participated in the hearing, providing a brief submission on behalf of the employer.

The employer did not take a position in respect of the issue on appeal but provided information to assist the panel. The employer’s representative noted that the submission on behalf of the worker accurately captured the facts related to the worker’s claim. The employer’s representative confirmed that the program the worker was employed in was moved to another organization in September 2020 and noted that the worker’s graduated return to work was with the new employer. The employer’s representative noted that this change was voluntary for all program staff who had the option to move to a different employer with the program or remain with the employer. The worker opted to move with the program to the new employer and therefore was deemed to have resigned from the employer.

The employer’s representative confirmed that the worker was required to carry three radio devices for a period of time. The program was trying new equipment for a period of time in August 2020 and the worker would have worked five shifts during the trial period. The employer’s representative also confirmed an increase in the worker’s status from part-time to full-time occurred in April 2020.

Analysis

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to find that the worker sustained an injury as a result of an accident as defined by the Act, arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The Act defines accident as a chance event occasioned by a physical or natural cause that includes any “thing that is done and the doing of which arises out of, and in the course of, employment” as a result of which the worker is injured. This aspect of the definition of accident includes injuries sustained by workers as a result of participation in their usual job duties where it can be established that undertaking those duties caused the injury.

The worker’s position in this case, as outlined in the worker advisor’s submission to the panel, is that as a direct result of a change in the equipment that the worker was required to carry as part of their regular job duties in early August 2020, the worker sustained a repetitive strain injury to their right low back and hip region and therefore the claim should be accepted.

The panel considered the worker’s testimony as to the nature of their job duties, noting the worker’s estimate that at the time of the injury, they typically walked some 25,000 – 27,000 steps daily as a requirement of their work. While doing so, the worker carries a number of items with them, attached to a belt worn at their waist level that normally weighs approximately 10 pounds. The items are situated on the belt primarily on the right side, although not exclusively.

The worker testified that in August 2020, they were required to carry two additional communications devices, adding weight to the worker’s belt of just over two pounds for a total weight of 12.29 pounds. As noted by the worker advisor, although the increase in weight could be considered slight of itself, the total weight of the belt represented approximately 8% of the worker’s body weight, which was unevenly distributed to the right side of the worker’s body. The impact of this change in weight-load is supported by the treating physiotherapist who noted in their July 26, 2021 letter to the worker advisor that the worker:

“…walked having the same seeming innocuous forces but it became symptomatic without a significant specific incident but consistent continuous use. [The worker] at the same time of the increase in the [weight] of [their] weight belt reported [they] also had an increase in [their] work hours…. Walking 27,000 steps a day with an increase in weight of [their] work belt and the increase in [their] hours caused [them] to become symptomatic.”

The panel also noted the evidence of the worker’s pre-existing back condition of scoliosis of their thoracic and lumbar spine, which had been previously treated and was not causing any symptoms to the worker prior to this injury. As noted by the treating physiotherapist in their July 26, 2021 opinion: “Considering the pre-existing condition, the increase in weight, the number of steps taken in a shift, the increase in hours from 21 hours a week to 35 hours a week as [the worker] switched from part time to full time status hours, there is a strong objective premise for a diagnosis of repetitive strain for the causation of [their] symptoms.”

The panel considered the opinion provided by the WCB physiotherapy consultant who reviewed the worker’s file on January 7, 2021. The WCB consultant concluded that the worker’s initial diagnosis was of “…insidious onset of right hip/low back pain. There is no clear workplace injury identified….The current diagnosis is non-specific/non-radicular low back pain.” The physiotherapy consultant noted they were unable to state whether the diagnosis of non-specific/non-radicular low back pain was accounted for in relation to the workplace injury in the “absence of a clear workplace injury.”

The panel considered whether the proposed mechanism of injury as described by the worker could have resulted in the injury sustained by the worker. In their first medical report of September 8, 2020, the treating physician diagnosed tibial band pain based on the worker’s report of right hip pain shooting into their right leg, worse with walking. In the physician’s September 9, 2020 chart note, they outline a diagnosis of musculoskeletal pain that the worker reported “started at work” with “no direct injury”, made worse with moving. On September 14, 2020 the physician noted a query as to tibial band pain and that the worker indicated there was no trauma. On September 21, 2020 the physician’s chart confirms that the worker reported they are taking it easy and walking is improved, with relieved symptoms. Diagnostic x-ray findings from September 28, 2020 indicate a normal lumbo-sacral spine. On September 28, 2020, the physician noted the worker reported that restarting work resulted in the same pain and indicated a query as to radiculopathy.

The panel noted that although the WCB physiotherapy advisor was not able to provide an opinion based on the worker’s report of no “clear workplace injury”, the treating physiotherapist was unequivocal in their July 26, 2021 opinion that there was a causal link between the worker’s repetitive workplace activity of extensive daily walking and their August 2020 increase in the weight of the tool belt carried, to the noted “…reflex changes indicating a nerve root irritation…[that] quickly resolved with a decrease in stress to the area controlling [their] hours, walking time, stairs climbed and lifting. [The worker] was wearing the same work belt but the symptoms improved with less stress….” The treating physiotherapist concluded that the worker’s injury “…should be considered repetitive soft tissue strain…to [their] left sacro-iliac joint/piriformis muscle….” The panel noted that the WCB physiotherapy advisor’s comment that there was no evidence of a workplace event to cause an injury was provided prior to the worker’s submission to Review Office with the detail as to the change in their belt-load in August 2020, and further, was provided prior to the opinion of the treating physiotherapist as to the impact of the increased weight-load in the context of the worker’s extensive walking and pre-existing condition.

On the basis of the evidence before us, including the worker’s testimony and the medical reporting of the treating physician and physiotherapist, the panel is satisfied that a causal relationship can be established between the August 2020 change in the worker’s job requirements relating to the increased tool belt weight in the context of their ongoing daily work activities and the injury to the worker’s right-side low back and hip region noted in early September 2020. We rely upon and accept the treating physiotherapist’s opinion that these activities could result in the kind of repetitive-strain injury the worker reported.

The panel is therefore satisfied that on the basis of the evidence before us and on the standard of a balance of probabilities that the worker was injured as a result of an accident, in this case, doing “a thing that is done and the doing of which arises out of, and in the course of, employment”. Therefore, the worker’s claim is acceptable, and the worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of June, 2022