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 videoconference hearing was held on March 29, 2023 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 June 27, 2019, reporting an injury to his lower back that occurred at work on May 23, 2019 and was reported to the employer on June 26, 2019. The worker reported he lifted a heavy item, weighing approximately 60 pounds, and tweaked his lower back. The worker noted he did not immediately report the injury as he did not think it was that serious and he felt he could self-treat it. He noted he saw a family physician on June 22, 2019 and a sports medicine physician on June 26, 2019.

The employer provided the WCB with an Employer Incident Report on July 15, 2019. The employer indicated the worker advised a co-worker on June 24, 2019 that he tweaked his back at the end of the season and it had not yet healed. When the employer followed-up with the worker, the worker advised he felt his lower back tweak while lifting a heavy item. The employer noted the worker had reported the incident to a safety officer on June 21, 2019, but had not reported the incident to a supervisor until June 25, 2019.

The WCB contacted the worker on July 25, 2019 to discuss his claim. The worker confirmed the mechanism of injury and indicated he performed the task of lifting the particular item twice per day but was not sure what was different on May 23, 2019. The worker advised he worked alone and there were no witnesses to the incident. The worker confirmed he did not report the incident or seek medical treatment right away, as he felt the injury was not that serious and he self-treated it with ice. The worker indicated he had been working long hours on an expedition for 12 weeks. He said he had seen a medical technician on perhaps May 31, 2019, who provided him with a report which he would forward to the WCB. After returning from the expedition, he had also seen a family physician on June 22, 2019 and a sports medicine physician on June 26, 2019.

On July 26, 2019, the worker provided the WCB with a June 5, 2019 medical report of the worker's attendance with the medical technician. The technician noted in that report that the worker attended for various issues, including left-sided back pain since May 23, 2019 when he lifted a heavy item using only his right hand "…in a right lateral flexion/extension movement" and felt immediate discomfort in his lower left back area. It was noted that the worker reported localized discomfort, extending to the inferior edge of his buttock area. On examination, the medical technician reported the worker had no visible deformities, some discomfort with deep palpation of the "…left side glute medius and superior border of glute maximus." The technician noted the worker had very good mobility with "…discomfort felt when returning to anatomical position from forward flexion." Straight leg and well leg raise testing was noted to be negative. The technician noted the worker was able to walk on his toes and heels with no issues, had good balance, and was able to perform a squat. It was recommended the worker use a sauna, stretch out his lower back and glute area, and avoid aggravating movements.

The WCB also spoke with the worker on July 26, 2019, who advised that he had been seeking regular medical attention for a previous injury, and due to ongoing pain, he had discussed his back injury with the medical technician at a follow-up appointment for the previous injury on June 5, 2019. The worker noted he had never hurt his back before and he thought this was just a strain which would get better quickly. The worker indicated he had been performing the exercises he had been given and was doing fairly well but continued to experience some pain from time to time.

A report was received from the worker's June 22, 2019 visit to a family physician, which indicated the worker reported pain in his lower back. The physician noted findings of a negative neurological examination and full range of motion, diagnosed the worker with a sacroiliac joint sprain, and recommended he attend for physiotherapy.

The WCB also received a July 29, 2019 report from another family physician, who noted the worker reported much improved lower back pain. The physician recorded normal range of motion, no pain on palpation to paraspinals and sacroiliac joint, and negative straight leg raise and FABER testing. The physician provided a diagnosis of low back pain.

On September 3, 2019, the WCB received confirmation that the medical technician's chart notes indicated the worker injured himself on May 23, 2019 but that he first sought medical attention on June 5, 2019. On September 4, 2019, the WCB advised the worker that a work-related accident had not been established given the delays in seeking medical treatment and reporting the accident.

On September 19, 2019, the worker requested that Review Office reconsider the WCB's decision. In his submission, the worker noted he was working 12-hour days, 7 days a week in an extremely remote location when the May 23, 2019 workplace accident occurred. He noted he decided to wait until a previously scheduled appointment with the medical technician on June 5, 2019 to seek treatment for his back injury, hoping he would recover in the meantime. The worker further noted he was still recovering from the workplace accident and required further treatment.

On December 3, 2019, Review Office determined that the worker's claim was not acceptable. Review Office noted the worker's report of a specific injury to his low back on May 23, 2019, but found that the delay in reporting the incident to the employer and the worker's ability to continue working his regular duties involving long hours and strenuous work impeded their ability to establish an injury occurred. Review Office noted that the worker was assessed by the medical technician on June 5, 2019 with respect to a concern with his lower back after lifting a heavy item with discomfort, but found that the examination findings and diagnosis offered were generalized and did not support an acute injury caused by a workplace accident on May 23, 2019.

The worker's representative appealed the Review Office decision to the Appeal Commission on August 8, 2022, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker is employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA").

Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Subsection 4(2) of the GECA provides that a federal government employee who is usually employed in Manitoba is entitled to receive compensation at the same rate and under the same conditions as are provided to a worker under The Workers Compensation Act of Manitoba (the "Act").

The Appeal Commission and its panels are bound by the Act, regulations under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.

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 as provided by Part 1 of the Act.

The WCB's Board of Directors has established Policy 44.05, Arising Out of and in the Course of Employment, with respect to determining whether an injury is the result of an accident arising out of and in the course of employment. The Policy states, 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 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.

Worker's Position

The worker was represented by a worker advisor, who submitted additional documentation in advance of the hearing and made a presentation to the panel. The worker and his representative responded to questions from the panel.

The worker's position was that the evidence supports he sustained an injury to his back arising out of and in the course of his employment, and his claim should be acceptable.

In response to questions from his representative and the panel, the worker provided further detail with respect to the job site and working conditions, his duties, and the workplace incident. The worker noted that he was working on a 12-week expedition at a very remote location, during which time he worked an average of approximately 12 hours per day, 7 days a week. The worker noted that most days they would travel in a group from the base camp to a field camp which was approximately 45 minutes away by vehicle. His job duties involved a lot of physical work, and he would be outside at least half the day, in very cold temperatures.

The worker noted that the accident occurred at the end of the work day, and near the end of the 12-week expedition, when they were rushing to get things finished and packed up. The worker said that the others had prepared their vehicles to return to base and were waiting for him. He went to pick up the last item, which was the heavy item weighing between 50 and 60 pounds. The worker indicated he had to take that item to the field camp each day and bring it back at the end of the day. As he was lifting the item, he immediately felt a sagging or tweaking in his lower back section and sharp pain. He managed to load the item on his vehicle and strap it up, and they returned to base.

The worker said that after dinner that night, on the way to the lounge at the base camp, he told the field coordinator he had tweaked his back and it hurt, particularly when he walked. The worker said it was a casual conversation, and he was more concerned about being able to do his work at the time than filling out paperwork. The worker said he did not think the injury was serious. He noted his back was quite painful, but not excruciatingly so.

The worker said he did not seek medical attention right away as he could still walk and do his work. He noted that the medical technician is the only medical person at the base camp, and while she was technically available outside her work hours, that was for emergencies or open wounds, and he did not feel this was an emergency. He noted he was not at the base camp during the day, and already had a follow-up appointment scheduled with the medical technician in the near future. He said he would not have been able to travel back to the base alone during the day to see the medical technician, as they only travelled to and from the field camp in groups for safety reasons, given the numerous potential dangers.

The worker said that when he saw the medical technician on June 5, 2019, she did a manual evaluation of his back. The worker noted that they can fill out reports at the clinic, but the clinic is very basic, and there is no imaging available and no other medical clinic nearby.

The worker's representative submitted that on a balance of probabilities, the mechanism of injury of lifting a 50 to 60 pound item, in an environment of sub-zero temperatures could cause a lumbar back or sacroiliac strain. That the worker suffered such an injury is evidenced by the immediate onset of sharp pain he experienced when lifting the heavy item at the field camp. The representative noted that the worker had no back or lumbar pain history before this incident and had never experienced any form of back trauma in the past. Lifting this heavy item was part of the worker's duties, and the injury was therefore caused by an accident which arose both out of and in the course of his employment.

The worker's representative submitted that the delay in seeking medical attention was minimal in the circumstances. The worker was not near any medical facilities and was working extremely long hours, seven days per week. Given the unusual, isolated nature of the work at the remote location, the delay of 13 days for obtaining medical assistance was not unreasonable, especially as the pain was not completely disabling. The representative submitted that the worker's explanation that he thought the issue would resolve in a few days was reasonable. Once the worker found the injury was progressing instead of recovering, he sought medical attention.

The worker's representative submitted that there was no delay in reporting the injury to the employer. The worker mentioned he injured his back to his field coordinator that night. He also mentioned his back injury to the medical technician, who was in charge of the medical services, within 13 days of the accident. The representative noted that the worker advised both of these individuals in the same manner as with his previous injury where he had pulled another muscle. The representative submitted that the delays were minor and were insufficient to prove that the accident did not occur.

In conclusion, the worker's representative submitted that the claim is acceptable and the worker's appeal should be granted.

Employer's Position

The employer was represented by a Senior Regional Occupational Health & Safety Advisor, who was accompanied by a Section Head for the department. The employer's representative made a submission at the hearing and responded to questions from the panel.

The representative submitted, on behalf of the employer, that the worker was injured in the course of his employment with the department, and his claim should be accepted.

The employer's representative noted the worker was working at a field camp in a very remote location. The representative submitted that visiting a medical station was an appropriate way to seek outside medical attention for an injury sustained at work, and the worker's visit to the medical technician should be considered the first report by the worker to a medical practitioner.

The employer's representative submitted that the work at that remote location was heavily-tasked and fast-paced because of the short period of time they had to complete the objectives of their expedition. The representative stated that the employer acknowledged the worker likely sustained an injury while completing the task of lifting and moving a heavy item, which was a task he was reasonably expected to perform at the field camp.

In conclusion, the employer's representative confirmed that it was their position that the worker should be entitled to compensation for the injury he sustained, in spite of any delays in reporting.

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 an injury as a result of an accident arising out of and in the course of his employment. The panel is able to make that finding for the reasons that follow.

Based on our review and consideration of all of the evidence which is before us, on file and as presented at the hearing, and the submissions of the parties, the panel is satisfied, on a balance of probabilities, that the worker suffered a back injury in the performance of his job duties on May 23, 2019.

The panel notes that the mechanism of injury of lifting a particular heavy item and feeling sudden pain was consistently reported throughout. The worker provided further detail and clarified at the hearing that he was lifting that item from floor level at the end of the work day to take it to his vehicle, and was rushing to complete this task so the group could return to base.

The panel is satisfied that it was not unreasonable in the circumstances for the worker to wait until June 5, 2019 to seek medical attention for his injury. The evidence shows that the worker was located at a very remote location, where there was only one medical technician and no other medical services were available. The worker was able to continue working, and had a scheduled appointment in the near future with the medical technician for an unrelated previous injury. The worker was hoping the injury would heal, and did not feel that this was an emergency. He could not travel back to the base camp alone for an appointment, and did not feel he could sacrifice a whole day of work at the field camp, given the tight timelines they were under.

The evidence shows that the worker attended the medical appointment with the medical technician on June 5, 2019. The medical technician assessed him with respect to three separate injuries, including the back injury, noting findings of discomfort with certain movements and diagnosing the worker with lower back pain. No imaging was performed, as this was not available at the worksite. The panel notes that the appointment with the medical technician was also very close to the end of the expedition, when the worker would be leaving the worksite. The worker indicated that he specifically sought treatment from a sports medicine physician almost immediately after his return from the expedition, as he was concerned about his ongoing back symptoms and felt that he needed to see a specialist for help.

The panel notes that there is limited medical information on file. The worker indicated in his Worker Incident Report and in conversation with the WCB that he sought medical treatment from a sports medicine physician on June 26, 2019, which was shortly after he returned from the remote location. Although there are references on the claim file to requesting a copy of the treating sports medicine physician's report with respect to that attendance, the panel was unable to locate such a report on file.

The panel further notes, however, that in a letter from the worker's current treating sports medicine physician dated June 20, 2022, which was submitted by the worker's representative in advance of the hearing, the sports medicine physician makes reference to the worker's June 26, 2019 attendance at the same sports medicine clinic, as follows:

He was seen at the [clinic] previously on June 26, 2019, after having sustained an injury at work…He saw one of my colleagues, [name], following an injury he sustained to his back on May 23, 2019, after lifting a [heavy item]. He was diagnosed with lumbar strain and ongoing mechanical pain. He was treated with a referral to physiotherapy. [Physician's name] did send a report to the WCB.

The panel places weight on that reference to the worker's attendance with the sports medicine physician on June 26, 2019.

With respect to the matter of reporting the injury to the employer, the worker indicated at the hearing that he told the field coordinator that same evening that he injured his back, although the coordinator did not appear to remember this. The worker also reported the injury to the medical technician on June 5, 2019, and the employer indicated in their Report that the worker reported the incident to a safety officer on June 21, 2019.

Apart from that, the panel notes that the worker sustained two other injuries in the course of the 12-week expedition which do not appear to have been reported. The panel notes that the employer became aware of the injuries, but does not appear to have insisted that the worker was required to make reports or at least to report an injury immediately, and given the isolated location, tight timelines for the expedition and culture of the workplace, it appeared to have been accepted that workers would work through injuries whenever possible and injuries did not need to be reported.

Based on the foregoing, the panel finds on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of his employment. The panel therefore finds that the worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of May, 2023