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 hearing was held on May 30, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On February 17, 2022, the employer provided an Employer’s Accident Report to the WCB indicating the worker injured their right shoulder, back and leg in an incident at work on February 14, 2022 after lifting a large box with another employee. The employer noted the worker finished their shift that day and reported the incident to them on February 15, 2022. On February 18, 2022, the worker completed a Worker Incident Report, reporting that on February 14, 2022, after “…moving a long box that was about 300 lbs, as I was putting the box down, I leaned over. That is when I felt a pain in my shoulder and right side.”

When the employer contacted the WCB on February 23, 2022, they indicated that the worker contacted them on February 18, 2022 about returning to work, and that they told the worker a return to work could begin on February 22, 2022 as the treating physician removed the worker from work for a week. The employer noted the worker had not returned to work or contacted the employer since that time, and further, that they were waiting on a functional abilities form from the treating physician. The employer confirmed modified duties were available for the worker.

In speaking with the WCB on February 23, 2022, the worker confirmed the mechanism of injury and noted that the coworker who helped them to lift the box noticed their difficulties after the incident. The worker described symptoms of consistent shooting pain from their right shoulder into their right hand, with the feeling of a bulge in their lower back and shooting pain down their right leg and numbness into their right foot. The worker stated that on the day of the incident, they tried to “walk it off” but on lifting another item afterward, they felt shooting pain through the right side of their body. The worker confirmed seeking medical treatment on February 15, 2022 and that the physician removed them from work until February 22, 2022, with a diagnosis of pulled muscles or nerves in their shoulder affecting their sciatica. The worker stated that the employer offered modified duties, but they were unable to work due to pain and inability to drive.

On March 1, 2022, the WCB received the Doctors First Report related to the worker’s February 15, 2022 appointment, in which the physician noted the worker’s report of lifting a heavy box and “suddenly developed lower back pain on right” with “sharp pain radiated towards scapula causing tingling down right arm” that “also radiating down right lower limb”. On examination, the physician recorded full range of motion in all directions in the worker’s neck, no tenderness in the worker’s right scapula, full range of motion in the right upper limb and spine with tender paraspinal muscles in the lumbar region on the right. The physician provided a sick note indicating the worker should remain off work until February 21, 2022 on modified duties. In the Functional Abilities Form provided on February 28, 2022, the physician noted the worker should not perform any carrying duties at all, had full abilities to walk, stand or sit, should not climb stairs, and could occasionally bend, twist, squat or kneel. The physician recommended no reaching overhead or below shoulder level, or repetitive motions, and that the worker should not lift any weights until cleared by a physiotherapist. On March 3, 2022, the worker was cleared to return to work at full time hours with the modified duties in place for approximately two to three weeks, to be reassessed after physiotherapy.

On March 1, 2022, the employer contacted the WCB with concerns regarding the worker’s claim. The employer noted the coworker who was with the worker when the incident occurred advised that they did not see the worker injure themselves and the worker did not mention any symptoms. The employer advised that the worker’s supervisor provided the same information. Further, the employer advised they had a comprehensive modified work program in place and had asked the worker to have a functional capacity form completed by their treating physician when seen on February 15, 2022, which the worker did not do. The employer reiterated that they arranged with the worker to return to work on February 22, 2022, noted that when they contacted the worker, they were advised the worker was seeking further medical on February 23, 2022 as they had fallen at home and their back was too sore for them to attend work. The worker provided a completed Functional Abilities Form to the employer on February 28, 2022, noting they were cleared to return to work on March 3, 2022. The employer advised the WCB that the worker had not reported any difficulties with their back prior to the February 14, 2022 incident but did note some employment related issues prior to that date.

The employer provided the WCB with contact information for the worker’s coworker and supervisor and on March 2, 2022, the WCB spoke with the coworker. The coworker advised they were working with the worker on the day of the incident and had moved the box with the worker. The coworker advised the worker did not complain about their back immediately after moving the box and did not mention any difficulties for the remainder of their shift. The coworker noted that the next day, the worker advised that they hurt their back while moving the box the day before.

On March 4, 2022, the WCB spoke again with the worker who provided further details regarding the incident. They noted the coworker saw them wince when they attempted to lift the box and that they reported the incident to their supervisor immediately afterward.

On March 4, 2022, the WCB spoke with the worker’s supervisor, who stated the worker did not report the incident to them on February 14, 2022, but did so on February 15, 2022. Further, the supervisor noted the worker told another coworker they injured their back moving a pail and yet another coworker they did it moving a door. The supervisor stated the worker did not appear to be in any discomfort at work on February 14, 2022.

On March 8, 2022, the WCB advised the worker their claim was not acceptable as it could not be established that they sustained an injury in an accident arising out of or in the course of their employment.

On March 10, 2022, the WCB received a copy of the Physiotherapy Initial Report for the worker’s attendance on March 4, 2022 and March 8, 2022. The physiotherapist noted the worker was assessed for four areas, with the assessments focusing on the worker’s neck, shoulder and back. The physiotherapist noted the worker’s complaints of numbness and tingling into both of their hands but worse on the right, sharp pain with neck movement, tightness, and pressure bilaterally in their lower back, again worse on the right. Some neurological testing was noted to be positive with reduced range of motion and decreased strength indicated. The treating physiotherapist provided a diagnosis of cervical radiculopathy and sciatic nerve and recommended the worker remain off work as they were totally disabled due to pain.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on May 11, 2022. The representative submitted the worker consistently reported the mechanism of injury, with the coworker confirming they lifted a heavy box at work on February 14, 2022, and their treating healthcare providers support the worker injured their right shoulder, back and leg at work and their claim should be accepted.

Review Office found on June 16, 2022 that the worker’s claim was not acceptable. Review Office noted inconsistencies in reporting on the file and found the evidence did not support the worker sustained an injury arising out of or in the course of their employment on February 14, 2022. Review Office further found the evidence provided by the worker’s coworker and supervisor did not indicate the worker suffered a physical reaction or injury or gave indication of an injury to either of them; therefore, Review Office could not establish an accident occurred.

The worker’s representative filed an appeal with the Appeal Commission on January 18, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act provides that compensation is payable by the WCB when a worker suffers personal injury by accident arising out of and in the course of employment. The Act defines “accident” in s 1(1) as follows:

In this Act,

"accident", subject to subsection (1.1), includes

(a) a chance event occasioned by a physical or natural cause,

(b) a wilful and intentional act that is not the act of the worker, or

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made an oral submission on behalf of the worker. The worker provided testimony in the hearing through answers to questions posed by the worker advisor and by members of the appeal panel. The worker’s sister appeared in the hearing as a witness in support of the worker’s claim, providing testimony in response to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the claim is acceptable because the evidence confirms that the worker sustained injury because of an accident arising out of and in the course of their employment. Therefore, the appeal should be granted.

The worker advisor noted the evidence confirms the worker made a timely report of the nature and circumstances of their injury to the employer and to the WCB as required, and further, that the worker has been consistent in their description of how their injury occurred. The worker advisor submitted that the medical reporting confirms an injury occurred and demonstrates a causal relationship between that injury and the mechanism of injury in the workplace accident as reported by the worker. The worker advisor relied upon the February 15, 2022 report from the worker’s family physician who provided a note indicating the worker would be off work for one week, and the March 4, 2022 report from the treating physiotherapist.

The worker advisor outlined that the evidence of the co-worker confirms that they assisted the worker in moving a heavy box on February 14, 2022, as described by the worker, and further that the co-worker helped the worker with moving something else after they moved the box. This evidence, the worker advisor submitted, corroborates the worker’s report of the events causing injury. Furthermore, the worker advisor noted that the co-worker also confirmed that the next day, the worker told them that they hurt their back the previous day.

The worker advisor noted the employer confirmed the worker had not previously made any complaints regarding back pain or injury.

The worker’s sister testified that the worker resided with her at the time of the incident in February 2022 and that she saw the worker on the morning of February 14, 2022, and recalled that the worker was “moving freely, normally.” The witness testified that later that day after the worker returned from work, the worker said they were injured and in a lot of pain and noted that the worker had difficulty with stairs. The witness testified that the worker told her they felt pain when lifting a box with another worker. The witness confirmed that they recalled these events as they later helped the worker to submit their claim to the WCB.

The worker offered testimony that there were items in the way of the area where they were working on February 14, 2022, and they needed to move these items to accomplish their assigned work for that day. The worker and a co-worker picked up a box and moved it into an adjoining space. While trying to put the box down in such a way as to avoid damaging the surface below it, the worker testified that “I overextended myself, which pulled on the right side of my body, and once I put it down, I knew something was wrong at that point.” Afterward, the worker walked down a hallway and tried to pick up a half-filled five-gallon pail, but when they did so, “…it was like a lightning bolt shot through the right side of my body. And I said, I can’t even – there’s no way I can lift this. So then I went out. I told my supervisor at the time that that’s, you know, like I hurt myself….” The worker testified that the supervisor offered them some pain relief medication which the worker took, and they continued with their work for the balance of the day. The worker confirmed that they had difficulty getting out of bed the next day and took more medication, but it “…it wasn’t till later on that I started to seize up after going to see the doctor.” The worker confirmed that they attended work on the morning of February 15, 2022, and completed a report there, notifying the WCB by phone, and then went to see a doctor.

On further questioning, the worker described that when they put down the box on February 14, 2022, they felt pain on their right side from their neck all the way down through to their leg, including in their back and shoulder. The worker confirmed that they got a ride to work on February 15, 2022, and then used public transportation to get to their doctor’s office. The worker confirmed that they had been seeing the same doctor for a few years.

In sum, the worker’s position is that the evidence supports the worker’s claim that on February 14, 2022, they injured themself while moving a heavy box while performing their job duties and therefore, the claim should be accepted.

Employer’s Position

The employer was represented in the hearing by the firm owner, who made a submission outlining the employer’s position in respect of the worker’s claim.

The employer’s position is that the WCB correctly determined that the claim is not acceptable, noting the evidence from the co-worker does not support the worker’s description of how and when the injury occurred and that the evidence from the worker’s supervisor also does not confirm the information provided by the worker.

The employer disputed the worker’s assertion that there are no first aid kits at the employer’s worksite. The employer confirmed that the worker completed an incident report on February 15, 2022, and then went for medical attention. The employer further noted that at the initial medical assessment, the worker received a medical note recommending one week off work and then a return to work with restrictions in place, which the employer was able to accommodate; however, the worker did not show up for the modified duties offered.

In sum, the employer’s position is that the WCB and Review Office correctly determined that the evidence does not support the worker’s claim and therefore the claim should not be accepted.

Analysis

The worker’s appeal is with respect to the acceptance of their claim by the WCB. For the appeal to succeed, the panel would have to determine that the worker sustained personal injury as a result of an accident arising out of and in the course of 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 noted the worker’s report to the WCB described an injury sustained in their right shoulder, back and leg that occurred upon lifting a heavy box and placing it “in a bad way down pulling my shoulder back and leg.” In reporting the circumstances of the injury to their family physician on February 15, 2022, the physician noted that the worker “Lifted a large box at work yesterday – weight about 270 lbs – suddenly developed lower back pain on right” with sharp pain radiating towards the scapula, tingling down the right arm and radiating down the worker’s right lower limb. The panel considered that the file evidence from the co-worker who assisted with lifting and moving the box supports the worker’s description of the task undertaken, although the co-worker did not recall noticing the worker’s injury until the worker mentioned it the next day. The co-worker’s statement to the employer provided by a text message on February 23, also confirms that they had to help the worker with picking up another item later the same day, which supports the worker’s description of requiring assistance in moving a pail after the box incident. While the co-worker did not confirm that they noticed the worker hurt themself, the panel accepts that it is nonetheless possible to have occurred without the co-worker noting it, given the worker’s own evidence that they continued working through the balance of the day and did not have any other difficulty until attempting to move the pail, which the co-worker assisted with.

The panel also considered the mechanism of injury as described by the worker and note that the worker’s reporting of how the injury occurred has been consistent throughout the claim, including in the reporting to their treating physician and treating physiotherapist. We accept that it is possible that in the process of setting down a heavy box, the worker could have caused injury to their back. The panel also noted the testimony of the worker’s sister that the worker had difficulty with stairs after this event occurred. Further, the panel finds that the worker’s report of an initial moment of pain and then, later, a subsequent increase in symptoms, which they first noted on waking the next day and reported to the employer that morning, is consistent with the clinical findings of tender paraspinals noted by the family physician on February 15, 2022.

The panel is satisfied on the basis of the evidence before us and on the standard of a balance of probabilities that on February 14, 2022, the worker sustained an injury by accident arising out of and in the course of their employment. Therefore, the claim is acceptable, and the worker’s appeal is granted.

Panel Members

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 30th day of June, 2023