The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on November 8, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On January 27, 2021, the employer filed an Employer's Incident Report with the WCB, reporting the worker injured his back on January 18, 2021 as the result of an incident at work. The employer noted the worker had a sore back, and by the end of his shift, he "…could hardly move due to pain."

The worker sought medical treatment from his family physician on January 25, 2021, reporting that his "Back started to hurt without any obvious injury" and complaining of lower back pain, radiating into both his lower extremities to the level of his knees. After examining the worker, the physician diagnosed him with "Lower back strain - pain - spasm," noting limited lumbar spine flexion to 90 degrees, extension to 5 degrees and intact lateral movement. An x-ray taken the same date showed disc space narrowing at L5-S1, with some degenerative changes.

On January 26, 2021, the worker attended an initial physiotherapy assessment, reporting that he was operating a grader on January 18, 2021 and started to experience pain that got progressively worse into his lower back to the point where he could not walk. The worker reported to the physiotherapist that he experienced inconsistent sharp, stabbing pain in his low back when bending, lifting, walking, and/or standing, which was sometimes worse, but felt better when he rested. The physiotherapist noted that a straight leg raise test was positive on the left, and the worker's sacroiliac joint, and thoracic and lumbar spine areas were tender. The physiotherapist diagnosed the worker with discogenic low back pain.

At a follow-up appointment with his family physician on January 29, 2021, the physician noted the worker reported improved pain and range of motion, and stated that the worker could return to his regular duties on February 1, 2021. On February 1, 2021, the worker attended a follow-up appointment with the treating physician, who noted the pain and range of motion had improved, but the worker had "…suffered a setback - developed more lower back pain + spasm" and was not capable of returning to alternate or modified work.

On February 2, 2021, the worker provided the WCB with his Worker Injury Report, together with a description of his job duties and detailed information regarding his symptoms. The worker noted he experienced pains in the lower back while at work on January 18, 2021. He also noted he had pain in his legs a few weeks previously and started stretching and walking a lot, which helped. The worker indicated he had been working lots of longer hours due to the weather, including approximately 80 hours the previous week, and by the end of his shift on January 18, 2021 he could hardly stand due to pain in his lower back. He told two foremen that he was hurt, and if he was not at work on January 19, they would know why. He said he could not move for a week due to severe pain, and sought medical treatment on January 25, 2021.

On February 8, 2021, the WCB spoke with the worker regarding his claim. The worker confirmed he had no previous issues with his back and there was no traumatic event or accident that occurred to result in his low back injury. The worker further confirmed he worked regular overtime throughout the year, which depended on the weather. The worker noted he was used to dealing with "…every day aches and pains" and the machine he was operating did not have great suspension, resulting in it being "…very bumpy and even minor bumps will be felt significantly." The worker further indicated he had worked 12 hours on January 17, 2021, and his foreman was aware he was having more frequent and intense back pain over the last few weeks, and may have seen him labouring when he was getting in and out of his vehicle.

The worker attended a further follow-up appointment with his family physician on February 10, 2021, reporting lower back pain was still present but was improving. The physician noted improving bilateral lumbosacral paravertebral tenderness and improved range of motion in flexion. The physician recommended the worker continue with physiotherapy, and again noted that he was not capable of alternate or modified work.

On February 17, 2021, the employer provided the WCB with a list of the shifts the worker worked between December 7, 2020 and January 18, 2021. On February 24, 2021, the worker had another follow-up appointment with his treating family physician, who noted the worker's lower back pain was improving and recommended restrictions of not lifting over 5 pounds and that the worker could start working reduced work hours of 4 hours per day for the next 3 weeks.

On February 25, 2021, the WCB spoke with one of the worker's supervisors. The supervisor confirmed he had spoken with the worker regarding his back difficulties but noted the conversations were "…normal, everyday work banter about having a sore back." The supervisor further confirmed he was not aware of an incident where the worker may have injured his back until a claim was filed on January 18, 2021. The WCB asked the supervisor whether there were any issues with the equipment the worker was using, and the supervisor stated he was not aware of any issues and the equipment used was "pretty new." On the same date, the WCB advised the worker his claim was not acceptable, as they could not establish he suffered an injury arising out of or in the course of his employment.

On March 11, 2021, the employer provided the WCB with contact information for another two of the worker's supervisors. The WCB spoke with the first of the two supervisors on March 12, 2021. The supervisor confirmed he was aware the worker was making complaints about his lower back, but indicated he could not provide specific details about those complaints. The supervisor further advised that the equipment the worker was operating was "…fairly new, with good suspension, although they will bounce on rough road, and come with adjustable air-ride seats. There were no defects that were reported."

On the same date, the WCB also spoke to the second supervisor, who confirmed the worker reported directly to him. The supervisor advised he was not aware of any injury to the worker in the workplace. The supervisor further noted the worker had advised him his back was sore, but did not identify a specific accident or injury. On March 15, 2021, the WCB advised the worker that additional information had been gathered from his supervisors, but there would be no change to the decision that his claim was not acceptable.

On April 20, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker provided a detailed submission, describing his job duties and symptoms, as well as statements from four co-workers, three of whom indicated they witnessed the worker in pain after his shift on January 18, 2021, from a reported sore back. The worker provided further written submissions to Review Office on May 12, 2021 and June 3, 2021 in support of his request for reconsideration. On June 10, 2021, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on June 23, 2021.

On June 24, 2021, Review Office determined that the worker's claim was not acceptable. Review Office acknowledged the worker was having lower back pain while at work and that his foremen/supervisors and co-workers were aware of these difficulties. Review Office noted however, that having lower back pain at work did not mean the pain arose out of the worker's performance of his job duties. Review Office found the worker provided different reasons for why his lower back was sore and was unsure of the cause of his lower back difficulties. Review Office concluded that a causal relationship between the worker's job duties and his lower back difficulties could not be established.

On January 12, 2022, the worker's representative submitted additional documentation to Review Office, and requested that Review Office reconsider the decision to decline the claim. Included with that submission were chart notes from the treating family physician; a Notice of Incident form the worker completed with the employer on January 25, 2021; diagnostic imaging reports from January 25, 2021 and March 7, 2021; a March 24, 2021 report from the worker's treating sports medicine physician; and a June 16, 2021 MRI of the worker's lumbar spine. A copy of the submission was provided to the employer, who provided a further submission on March 1, 2022, and the worker's representative responded to that submission on March 10, 2022.

By letter dated March 16, 2022, Review Office advised the worker that the additional information had been reviewed, but there would be no change to the decision that his claim was not acceptable.

On April 28, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as January 18, 2021, the applicable legislation is the Act as it existed at that time.

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, 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part:

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.

Worker's Position

The worker was represented by a worker advisor, who made an oral presentation at the hearing, and noted they were also relying on their written submission to Review Office. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position was that the totality of the evidence supports that the worker was injured by accident arising out of and in the course of his employment, and his claim should be accepted.

It was submitted that the evidence indicates the worker believed his low back injury surfaced weeks prior to January 18, 2021 from working additional hours operating a grader, culminating January 18, 2021 with his experiencing a significant increase in his low back pain and difficulty moving as a result of the bouncing or banging associated with operating a grader.

The worker's representative submitted that the worker's duties entailed working overtime. The specific dates and volume of overtime the worker worked between early December 2020 and January 18, 2021 are on file, and show he worked four consecutive 12-hour shifts leading up to Christmas, and a few 12-hour shifts after Christmas, the last of which was January 16, 2021, after which the worker worked two consecutive 8-hour shifts.

The worker's representative noted that the worker and his supervisor indicated that operating graders exposes workers to bouncing, while two supervisors also reported that it was common among equipment operators to experience sore backs. The representative submitted that this suggests that such equipment operation represents an employment hazard capable of causing a lower back injury.

The worker's representative submitted that the worker reported his work-related injury to the employer towards the end of his January 18, 2021 work shift, and also reported a work-related injury to the first physician he saw, as well as a physiotherapist. Written statements from four co-workers, on file, attest to their knowledge that the worker was hunched over and barely able to walk by the end of his January 18, 2021 work shift. The representative noted that whatever the condition of the worker's back was before, the status of his back by the end of his January 18, 2021 shift represented a significant change, and submitted that this was evidence not only of his being injured during work, and because of, work, but also in the course of his employment.

Employer's Position

The employer was represented by its Workers Compensation Coordinator, who made an oral submission at the hearing and responded to questions from the panel.

The employer's position was that they agreed with the Review Office decisions that the worker's claim was not acceptable, and requested that those decisions be maintained and the appeal be dismissed.

The employer's representative submitted that the circumstances did not meet the test of an accident under subsection 1(1) of the Act. The representative reviewed the Review Office decisions at some length, and asked that the panel give significant weight to Review Office's analysis of the claim. The representative noted that the employer agreed that the worker provided different causes for the onset of his low back difficulties, including bouncing in the grader, working lots of overtime hours, and having performed physical jobs for many years. The representative also agreed that no specific event or mechanism of injury was indicated as being responsible for the symptoms the worker experienced on January 18, 2021, and simply experiencing pain does not demonstrate that the worker's back pain arose out of the performance of his general duties.

The employer's representative submitted that the worker's family physician noted there was no obvious injury and diagnosed the worker with nothing more sinister than a lower back strain. The representative submitted that additional medical information which had been submitted to file appeared to point to pre-existing degenerative low back changes as being the basis for the worker's difficulties. In particular, the representative noted that the June 16, 2021 MRI of the worker's lumbar spine described degenerative changes and disc desiccation at multiple levels. The representative submitted that these conditions were pre-existing, and were likely responsible for the worker's complaints prior to January 18, 2021. It was submitted that nothing the worker did around December 2020 to mid-January 2021 was responsible for the development of the disc desiccation, and the worker's pain due to the disc desiccation and degenerative disc disease could have come on at any time, whether he was working or not.

The representative further submitted that nothing the worker was doing at work around that time would have caused an aggravation of these pre-existing conditions. The representative submitted there was no material change in the worker's duties: he drove the grader previously, and worked overtime on a regular basis. He was not working overtime on January 17 or 18, 2021. Nothing significant happened in the workplace on January 18, 2021, other than that the worker's pain increased. There is no evidence the worker's condition was made worse by what he was doing. Further, or in any event, even if there was an aggravation, one would expect it would have returned to its pre-injury status with time off work and treatment.

In conclusion, it was submitted that on a balance of probabilities, the issues relating to the worker's back pain were solely related to the worker's pre-existing degenerative changes and established multi-level disc desiccation. It was further submitted that there is no evidence an accident occurred on January 18, 2021, and no basis to accept the claim, and the appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding, for the reasons that follow.

The panel is satisfied that the evidence shows that there is a significant amount of bouncing and banging or jerking when operating a grader, which is hard on the operator's back. The worker indicated that the bouncing is constant when driving, and he would get thrown around. If the grader catches on something, it stops. The worker also indicated that there was no suspension in the grader he was operating. The worker said he would always be operating the same grader, unless it was in the shop being repaired. The panel notes that the supervisor had indicated the equipment was fairly new, with good suspension, but there is an absence of information as to whether any specific inquiries were made or investigation was done to determine its condition at the time. In the circumstances, the panel accepts the worker's evidence that the grader he was operating did not have good suspension.

The panel is satisfied that the evidence supports, on a balance of probabilities, that the worker suffered an accident arising out of and in the course of his employment on January 18, 2021. While a specific event was not identified, the evidence indicates that the worker was having some back problems prior to January 18, 2021, but his symptoms changed significantly by the end of his shift that day, and were out of proportion to what he was experiencing in the preceding weeks or at the beginning of his January 18 shift. The worker indicated at the hearing that he would have spent virtually the entire shift in the grader. The evidence indicates that the worker was able to go to work and perform his duties throughout the day, but had great difficulty getting out of the grader at the end of his shift and was in significant pain. Statements from his co-workers confirm that he was fine at the beginning of the day, but was "hunched over," "obviously in a lot of pain" and "could hardly walk" at the end of his shift.

The panel notes that the treating physician diagnosed the worker with a sprain/strain injury. While the worker indicated he continues to suffer from his injury and has not returned to work, there is a lack of medical information to indicate that the worker suffered anything more sinister than a sprain/strain injury as a result of the workplace incident.

The panel accepts that there is evidence that the worker has a pre-existing degenerative disc condition, and has what may be called a "back at risk." The panel does not accept, however, that the worker's difficulties in this case were solely attributable to the worker's pre-existing condition. Based on the evidence which is before us, the panel is satisfied that the worker suffered a compensable low back injury within the environment of a pre-existing degenerative disc condition.

The panel therefore finds, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment, and that his claim is acceptable.

The worker's appeal is granted.

Panel Members

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 6th day of January, 2023