Decision #122/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on September 7, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
In a Worker Incident Report provided to the WCB on July 15, 2021, the worker reported an injury to their lower back resulting from an incident at work on July 1, 2021, which they reported to the employer on July 4, 2021. The worker described:
There was a pain on my bottom hip, like a sharp pain. It was bugging me Thursday during the day and I started watering grass which is when it started bothering me more. I twisted and felt and heard a popping noise.
I worked all day Thursday, Friday and Saturday with the pain.
The worker noted they sought medical treatment, were diagnosed with a compressed disc and placed off work to August 31, 2021.
On July 22, 2021, the Employer provided an Employer Incident Report to the WCB in which the employer noted the worker’s report of an injury to their lower back on July 4, 2021 and that the worker called on July 5, 2021 stating they would not be coming to work as they hurt their back. The employer reported that the worker “didn't indicate at that time if it was work related." The employer reported they received a doctor's note dated July 6, 2021 placing the worker off work until August 31, 2021. When the worker contacted the employer on July 8, 2021, the worker advised their back started to hurt on Tuesday, June 29, 2021 while at work. The employer stated their belief that the worker's injury related to a prior injury.
On contacting the WCB on July 23, 2021, the worker advised that they injured their lower back on June 28, 2021 and that they had been in bed since July 3, 2021. On the same date, the WCB received a copy of the Certificate of Illness from the worker's treating physician indicating the worker was to remain off work to August 31, 2021.
The WCB contacted the worker on July 26, 2021 to gather further information. The worker advised the WCB that on June 28, 2021, approximately mid-afternoon, while they were rolling up a tarp, they felt a sharp pain in their right hip and lower back but did not report it to their employer or coworkers and finished their shift that day. The following day, the worker mentioned to their supervisor their back was in pain and needed to see a chiropractor but did not indicate it was a workplace injury. The worker confirmed they continued to work their regular scheduled duties for the rest of the week, believing the injury would resolve on its own. The worker then advised they were in a lot of pain on the weekend and required help to get into their apartment. On Monday, July 5, 2021, the worker sent a text message to their supervisor advising that they were seeking medical attention for their back at which time, they were advised to rest, use heat and ice and remain off work. The worker advised they had made an initial physiotherapy appointment for July 27, 2021.
On July 27, 2021, the WCB spoke with the worker's supervisor who advised that the worker told them on June 29, 2021 they had a sore hip, and it was out of place and would see their chiropractor for an adjustment. The supervisor confirmed the worker did not advise them their injury was related to work and that the worker continued to work their regular duties for the rest of the week, making complaints regarding their hip but did not report or reference a workplace incident.
When the worker attended an initial physiotherapy assessment on July 28, 2021, they reported to the physiotherapist that the injury occurred when "Pulling a hose, tweaked [their] back, tried to work through it". At that time, the worker complained of right low back pain, through their right glute area and right anterior shin and tingling in their toes. The physiotherapist recorded findings of decreased lumbar spine range of motion in all directions and straight leg raise testing at 30 degrees on the right and 80 degrees on the left and diagnosed lumbar radiculopathy. The physiotherapist noted the worker required pain management and diagnostic imaging prior to starting physiotherapy treatment.
The WCB advised the worker on August 5, 2021 that their claim was not acceptable. The WCB noted the worker had not reported a work-related mechanism of injury to their employer until July 8, 2021 and due to the delay in reporting an injury and the inconsistencies in the reported mechanism of injury, the WCB could not establish an accident occurred arising out of or in the course of the worker's employment.
On August 11, 2021, the WCB received a copy of the worker's July 4, 2021 text message to their supervisor from the worker advising due to back pain the worker would see a chiropractor the next day.
In an August 24, 2021 report the treating physician noted the worker's complaints of throbbing pain, "pulling" feeling, inability to sleep or get out of bed, limping and increased knee pain. The physician also noted the worker's right side thigh muscles were tender and stiff, as compared to the left, and the worker was unable to sit comfortably. The physician further noted they were not sure why the worker was not improving.
On August 31, 2021, the worker requested reconsideration of the WCB's decision to deny their claim to Review Office, noting they attempted to work through the pain from the June 28, 2021 injury but by July 4, 2021, found it too painful and therefore sought medical treatment on July 6, 2021. The worker noted they spoke to the employer on July 8, 2021 to advise of the workplace injury and that they stayed in bed, resting until they saw their treating physician again on August 24, 2021.
On September 10, 2021, the WCB received a copy of the treating physician’s report for the worker’s initial attendance on July 6, 2021. The physician noted they were not initially aware they were examining the worker for a WCB claim and reported the worker's complaints of lower back pain for "the last 2 weeks", which radiated to their right mid-thigh, with a "pulling" feeling. The worker also reported they could not sit, stand or sleep. On examination, the physician found "…certain motions cause pain [spasm], palpitation of the lower back is sensitive for the patient, right sided radiculopathy with SLR [straight leg raise] test". The physician offered a diagnosis of “backache” and recommended pain medications, weight loss, traction and physiotherapy if needed.
On September 15, 2021, Review Office determined the worker's claim was not acceptable. Review Office found that inconsistencies in the worker's reporting of the mechanism of injury, along with the delay in reporting the injury to the employer, and the fact the worker did not provide the employer with a work-related description of an incident to explain their lower back injury, made it difficult to establish a workplace accident occurred.
The worker filed an appeal with the Appeal Commission on June 2, 2022. A hearing was arranged for September 7, 2022.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 9, 2022, the appeal panel met further to discuss the case and render its final decision on the issue 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 provisions of the Act in effect on the date of the worker’s death apply.
The Act provides in s 4(1) that compensation is provided by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of the employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of the employment arose out of the employment, unless the contrary is proven. Section 28(1) of the Act provides for compensation to be paid where an accident results in the death of a worker.
The term “accident” is defined in s 1(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 it 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.
The worker appeared at the hearing on their own behalf, accompanied by their neighbour as a support person. The worker made an oral submission in support of their appeal and provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position is that the claim should be accepted because they sustained injury to their low back arising out of and in the course of their employment, while carrying out their job duties in late June and early July, 2021.
The worker described to the panel that while pulling a hose from a truck, they gave the hose a yank and as they did so, heard a pop in their lower back causing immediate pain in their lower back that extended into their legs. The worker described having to crawl back to their vehicle and being in such intense pain that they remained in bed for some time afterwards.
On questioning by members of the appeal panel, the worker noted that they first experienced symptoms of neck pain in late June 2021 on folding a tarp at work and that they mentioned this to their employer. It was just a few days later that the worker injured their lower back. The worker confirmed that they had previous back stiffness but not pain. On July 1, 2021, the worker was accompanied to work by their nephew who was helping the worker with their duties. Around midday, the worker was at a site pulling hose off the truck. Although the worker’s duties were generally truck-driving, on this date and the day before, they drove to a site to water newly placed sod. In pulling the 2-inch hose from the truck, the worker had to give it a yank. As they did so, the worker felt a pop in their back. The worker sat awhile leaning on the tire of the truck afterwards, with legs extended and then drove back to the employer’s yard where there were no other staff present, and then went home in their own vehicle. The worker stated that their nephew was there throughout and returned home with the worker, staying there a couple of days.
The worker explained to the panel that the comment in the treating physician’s report of July 6, 2021 that they were having back pain over the previous two weeks was referring to the symptoms the worker had in the week leading up to the incident with the hose. The worker described to the panel their continuing symptoms, noting difficulty with sleeping, legs giving out or locking up. They now use a cane when walking. The worker stated every day is a struggle and that they try to treat their symptoms with chiropractic care when they can afford it, stretches and heat and pain medications. The worker described relying upon friends and neighbours for assistance. The worker described being a hard worker capable of working long days and indicated that they miss going to work.
In sum, the worker’s position is that the claim should be acceptable because the worker injured their low back as a result of an incident that occurred in the course of doing their work.
The employer did not participate in the appeal.
The question on this 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 was injured because of an accident that occurred arising out of and in the course of the worker’s 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 panel reviewed the evidence as to the mechanism of injury as described by the worker in their initial report to the WCB, in their subsequent statements to the WCB, and in their testimony before the hearing panel. The worker initially reported to the WCB that they injured their lower back when they twisted and heard a popping noise while watering grass. The worker indicated that they had some pain already before this occurred but that it worsened afterward. The worker indicated they continued working with the pain. On speaking with the WCB adjudicator on July 26, 2021, the worker advised that they experienced pain in their right hip and low back on June 28, 2021 while rolling up a tarp but did not report it and completed their shift. The worker stated they mentioned their back pain to their supervisor the next day (June 29, 2021) but again did not report any workplace injury or incident. The worker described thinking the pain would resolve on its own but by the end of the day on Saturday, the worker was experiencing a lot pain and had difficulty driving home, requiring help from a neighbour to get up the stairs to their apartment.
The file evidence indicates that the worker advised their supervisor on June 29, 2021 that they had hip pain but did not make any report of an injury arising from work. The worker testified to the panel that the incident with the hose happened on July 1, 2021 and that they did not return to work after that incident. The worker also testified that an injury to their neck occurred on July 1 and that the hose incident occurred on July 3, 2021. The supervisor advised the WCB that the worker continued with their regular duties that week, working through to Saturday and the file contains a text message record from the worker to the supervisor dated July 4 at 7:04 p.m. in which the worker stated that they worked Friday and Saturday watering grass with help from their nephew and that “…my back can hardly sit sleep etc going to see chiropractor tomorrow….”
The panel noted that the Saturday immediately following June 29, 2021 was July 5, and that the employer’s records show that the worker attended work Monday, June 28 through Thursday, July 1, but did not work from July 2 to July 5, 2021. The employer further advised the WCB that the worker called in on July 5, 2021 to indicate they were hurt and would not be working but did not at that time relate this to their work. The worker stated they saw their doctor two days after the injury occurred, but the physician’s records indicate the worker first attended with back complaints on July 6, 2021. Although the worker did not report to the treating physician at that time that the injury to their back occurred while completing their work duties, we note that the file also indicates the worker reported to the employer on July 8, 2021 that their back began hurting at work on June 29, 2021.
The panel noted the worker’s difficulties with providing a clear, linear chronology of the events described and considered that this may account for the confusion within the claim file documents as to dates and events reported. The task of determining what, if anything, happened to the worker is, however, made more challenging by the worker’s confusion as to the chronology of events, as well as by the worker’s failure to make a timely report of their injury to the employer or to the treating physician.
The panel also considered the additional evidence provided to the WCB at the request of the hearing panel, by the worker’s nephew. The worker testified that they were assisted with their job duties by their nephew after the initial injury occurred in late June, 2021 and that the nephew was also present when the worker again hurt their low back as described in the report to the WCB and helped the worker to get into their home afterwards. The information provided by the worker’s nephew to the WCB is that they attended work with the worker between June 28 - July 5, 2021, helping the worker in carrying out their job as the worker had hurt their back. The nephew further confirmed their recollection that the worker had a prior injury to their lower back. That week, the worker slipped and fell when pulling a wet hose off the truck, falling to their knees, but the nephew could not recall exactly what day that occurred. The nephew also confirmed having had to help the worker up the stairs into their home at the end of the workday but could not recall when, specifically, this occurred.
The panel reviewed the medical reporting to determine whether this evidence supports a finding that the worker sustained an injury in the course of their work. We note that the worker sought care from their family physician on July 6, 2021 reporting back pain over the previous two weeks that radiated into the post-mid right thigh as well as difficulty with sitting, standing, and sleeping. At that time, the worker did not advise the physician that the pain related to their work activities or any incident. The physician noted their findings, including painful spasm on certain motions and right-sided radiculopathy with straight leg raise test. They recommended pain relief medication as well as weight loss, traction and physiotherapy and provided a note to the employer indicating the worker was unable to return to work until August 31, 2021. When the worker returned for further assessment on August 24, 2021, the physician noted tenderness and stiffness of the “post thigh right side muscles” and indicated they were uncertain what was impeding improvement. Physiotherapy was recommended again, and further pain relief medications prescribed.
On assessment for physiotherapy on July 28, 2021, the worker reported their injury occurred when they pulled a hose, causing a tweaking in their back which they tried to work through but was unresolved. The physiotherapist recorded findings of low back and lumbar range of motion minimal in all directions and straight leg raise test findings at 30 degrees on the right versus 80 degrees on the left. The physiotherapist offered a diagnosis of lumbar radiculopathy and recommended diagnostic imaging and pain management before therapy could begin.
Based upon the totality of the evidence before us, we find that the worker likely did sustain a minor injury to their back early in the week of June 28 – July 2, 2021, more likely than not on June 28, 2021 as reported by the supervisor and as suggested by the nephew’s statement. The evidence indicates that the worker did not report to the employer that this occurred at work but continued to work and did not seek medical attention at that time despite indicating an intention to do so and despite some ongoing pain. In this regard we also note the worker’s evidence, supported by the nephew’s evidence, that the worker was able to continue with their duties with some assistance from the nephew from time to time.
Further, we find that on or about July 1, 2021, the worker again sustained injury to their back while pulling a hose from their truck, in the course of their work, and that this incident resulted in immediate painful symptoms in the worker’s lower back and right hip region as supported by the worker’s report and confirmed by the worker’s nephew who was present at that time such an injury occurred. The initial report by the treating physician relating to the July 6, 2021 assessment supports that the worker had recently sustained a low back injury and the July 28, 2021 report by the physiotherapist supports both the mechanism of injury and the nature of that injury.
The panel noted the employer’s concern that the worker’s low back injury predated this claim. Although there is some evidence that the worker had pre-existing upper back degeneration, we have no medical evidence before us to confirm any prior or pre-existing lower back or right hip condition.
On the basis of the totality of the evidence and on the standard of a balance of probabilities, we are satisfied that the worker sustained injury to their low back and right hip region, arising out of and in the course of the worker’s job duties between June 28, 2021 and July 1, 2021. As a result, the panel determines that the claim is acceptable. The worker’s appeal is granted.
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 16th day of December, 2022