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 31, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On September 29, 2015, the worker filed a claim with the WCB for a left low back injury on September 25, 2015, which they described as follows:

Not sure if it's from doing my job or the long flight to…on the second jobsite. My job involves…a lot of sitting, some bending, awkward positions. I don't recall being in an awkward position out there. For the most part I felt fine on Friday. But on the way driving home I had very minor discomfort on Fri. Sep. 18, 2015 as I was coming from…a jobsite driving home… The discomfort was like I had a bad sleep. That's why I didn't think anything of it. It carried through the weekend. Then my company sent me out to…and when I got off the plane arriving there, I had real issues: very painful to lift my leg, walk up or down steps, painful to bend over, painful to lift with the left side of my body.

The employer filed an Employer Injury Report on September 30, 2015, stating the worker reported the accident in a telephone conversation on September 29, 2015, indicating they had a sore back the previous week. The worker advised the employer they had not lifted anything during the week other than their suitcase which was light. The worker advised they drove back from the work site on Friday and when they arrived home their back was a little sorer. Their back continued to bother them over the weekend and was still bothering them on a flight Monday morning. The worker advised that a doctor prescribed muscle relaxants and physiotherapy and told them they should not sit but walk around or lie down.

On October 5, 2015, a WCB adjudicator spoke with the worker and obtained further information. The worker advised that on returning from a job site on September 25, 2015, they had minor back discomfort but did not think anything of it. The discomfort continued through the weekend, with tightness. On September 28, 2015, the worker got on a plane and when they arrived at the destination, they could barely move their legs and had a lot of lower back pain. The worker indicated they went to the job site for a couple of hours, then left to go to a walk-in clinic. The worker described their job duties as involving computer programming with field work at customer sites. The worker used a laptop computer and a variety of hand tools in doing their job, which could require odd positions with bending and twisting, and working in any range from foot level to above their head. The worker stated they had no issues on the job site on September 25, 2015. They lifted a tool bag weighing approximately 25 to 30 pounds and a personal backpack and unloaded a 20-foot ladder in the shop when they returned.

In a further phone call with the WCB on October 6, 2015, the worker advised they had no prior back issues. The worker said that due to their height and shoulder width, they felt soreness from their shoulders down to their feet from trying to contort into the seat of the plane. The worker stated they might have twisted when they off-loaded something. The worker noted the drive home on September 25, 2015 took approximately seven hours, and over the following weekend, they felt something like a dull lower back ache that worsened during the flight and was very painful after getting off the flight on September 28, 2015.

By letter dated October 7, 2015, the WCB advised the worker that their claim for lower back difficulties was not acceptable as they could not determine an accident occurred arising out of and in the course of the worker's employment.

In a telephone call to the WCB on October 15, 2015, the worker indicated they had no back pain when driving and did not notice pain until they returned and unloaded their vehicle at the shop. The worker felt that the WCB misinterpreted their accident report, noting they had a box of parts in their van that contained manual documentation and additional tools. They unloaded their box, tool bag and ladder at the shop, and felt pain and discomfort after doing so.

In a further decision letter dated October 15, 2015, the WCB confirmed the worker's claim was not acceptable, noting the worker confirmed multiple times that the initial mechanism of injury and back pain occurred while driving back from another province and this correlated with the initial medical information on file. Then, after their claim was disallowed, the worker attributed their injury and subsequent pain to a new mechanism of injury that was not mentioned until later in the claim investigation.

On December 22, 2015, a worker advisor appealed the October 15, 2015 decision to Review Office. On January 19, 2016, the employer responded to the appeal stating that they agreed with the WCB to deny the claim. Both the worker advisor and the employer provided Review Office with additional submissions.

On February 25, 2016, Review Office determined the claim was not acceptable. Review Office indicated the worker and their advisor provided numerous potential scenarios to Review Office and believed the development of the worker's lower back difficulties may have been the result of workplace activities. Review Office stated that they were not able to make that determination, placing weight on the worker's initial statements that the pain and discomfort began after an insidious onset and not in relation to any specific event. Further, the worker was not consistent in their reporting of the dates or mechanisms of their injury to the WCB. Review Office found these inconsistent reports did not support a determination that an accident had occurred.

On June 23, 2020, the worker's legal counsel filed an appeal with the Appeal Commission. A teleconference hearing was arranged for November 25, 2020. 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 December 6, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal. Pursuant to Decision No. 150/21, issued December 22, 2021, the Appeal Commission determined the worker's claim should be acceptable and granted the worker's appeal.

Subsequently, by letter dated February 8, 2023, the WCB's Corporate and Legal Services advised the worker's legal counsel and the employer that under Section 60.9 of The Workers Compensation Act ("the Act"), the WCB would be asking their Board of Directors to set aside the Appeal Commission's Decision No. 150/21 on the grounds that the Appeal Commission may have misapplied the Act and/or a WCB policy in arriving at that decision.

By letter dated March 1, 2023, the Appeal Commission advised the parties that the WCB's Board of Directors had set aside Appeal Commission Decision No. 150/21, and had ordered that the worker's appeal be re-listed and heard by a new panel. A hearing was subsequently arranged for May 31, 2023.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations, and policies established by the WCB's Board of Directors. As the date of injury is identified as September 25, 2015, 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.

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 applicable Policy for accidents occurring between October 1, 2006 and December 31, 2022 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.

WCB Policy 44.10.50.50, Travelling on the Job, with an effective date of September 9, 1976 to December 31, 2022, provides, in part, that:

Workers are generally considered to be in the course of their employment from the time they arrive on the employer's premises until the time they leave. When travelling is a requirement of the worker's employment, compensation coverage is extended to include travel during working assignments, as well as travelling to and from work assignments.

Administrative Guidelines to that Policy further provide, in part, as follows:

1. Workers who are regularly required to use a vehicle in the course of their work are considered to be in the course of their employment from the time they enter the vehicle at home to the time they return, providing that they are on a route directly associated with their employment. This would include employees such as salesmen and community or field workers, etc. 

… 

3. A worker is considered to be in the course of employment when the worker is being paid for the time spent in transit, or is subject to the control and direction of the employer.

Worker's Position

The worker appeared at the hearing, represented by legal counsel. The worker's legal counsel provided a written submission in advance of the hearing, and made an oral submission at the hearing. The worker gave evidence in response to questions from their counsel, and the worker and counsel responded to questions from the panel.

The worker's position, as outlined by their legal counsel, was that the worker suffered a back injury in the course of their employment, from which they continue to suffer, and their claim should be acceptable.

At the original hearing before the Appeal Commission on November 25, 2020, the worker testified as the nature of their job duties and detailed the nature of those duties undertaken in the week prior to the date of the reported injury. The worker advised that they were away on assignment and had driven their own vehicle to and from the job site where they spent five days working. On the last day, September 25, 2015, the worker loaded up their tools and supplies and drove approximately seven hours back to the employer's premises, arriving at around 9:00 p.m. The worker unloaded their equipment, and in doing so, noted some minor discomfort and tightness in their lower back, on the left side. The worker indicated they did not think much about the symptoms at that time and went home to bed. The next day, the worker went into the office to work a short day.

The worker testified that they flew to another job site on Monday, September 28, 2015. The employer had booked economy cabin seats, as was usual. The worker indicated that due to their body size they are unable to sit comfortably in an economy seat and sought accommodation from the airline, which provided the worker with an adjoining second seat for the flight of approximately 2.5 hours. The worker stated that on arrival, they noted pain in their lower back, extending down into their leg. They tried to stretch out, then hurried to catch their next flight, on which they were again able to have an empty adjoining seat. The worker testified that having an adjacent seat gives them more space, but the confinement and twisting irritates their back.

On arriving at their final destination, the worker walked to loosen up and then picked up a rental car and drove to the customer site where they worked for a couple of hours, walking as needed for relief. The worker noted that on leaving the customer site, they were having more difficulties, including in lifting their left leg into the vehicle. As a result, the worker went to a walk-in clinic for assessment. The worker described that they used medication as well as walking or lying down for pain management. The worker indicated they called the WCB the next morning and also spoke with the employer, then went to work, finishing the job as required over the course of the next three days. The worker advised they were able to continue working by taking walking breaks to loosen up and relieve the pain and stiffness in their leg and lower back.

The worker returned home on Friday, October 2, 2015 and subsequently sought a second opinion from their own physician and spoke again with the WCB about their injury. The worker confirmed they did not engage in any physical activity other than work during this period.

In response to questions from the panel at the November 25, 2021 hearing, the worker confirmed that they did not return to work for the employer after their return from the trip on October 2, 2015 but did meet with the employer on October 5, 2015 about seeking a second medical opinion.

At the hearing on May 31, 2023, the worker further testified that when they were offloading items at the office on September 25, 2015, they noticed minor discomfort particularly when reaching into their vehicle to pull the boxes and other items up and out. The worker described the equipment as being cumbersome and noted it included their tool bag, laptop, hand tools and a ladder, all of which weighed probably more than 100 pounds in total.

The worker also testified that midway through the first flight on September 28, 2015, they started to notice pain and discomfort in their back, running down their leg, and by the time they landed, they had to immediately get out of their seat as they were in so much pain. Walking between flights helped a bit, but transferring to the next flight was very unpleasant, and the seating on the second flight was no better. The worker described the pain they were feeling as being much worse, consisting of actual pain where they had trouble moving and sitting. The worker confirmed that this was the first time they experienced such pain and that they had never had back issues prior to the events in September 2015.

The worker indicated that currently he cannot remain sedentary with his spine vertical as the pressure on his back causes nerve pain. He cannot sit in a straight back chair, and has to be in a reclined position. He has to remain in almost constant motion to transfer weight to his muscles, and walks slowly with a cane and sometimes with two walking sticks. He said that everything has become more difficult because of his back difficulties.

The worker's legal counsel submitted that the worker was injured as a result of their participation in their job duties during the days leading up to their seeking medical attention on September 28, 2015. Two series of events or incidents were described as having occurred during that time, the first of which was unloading work tools, equipment and other items at the employer's premises after returning from a customer's job site, and the second, flying to the next work assignment, seated in an awkward position.

In response to questions from the panel, counsel submitted that the claim is acceptable based on each of those incidents separately or in combination. Counsel noted that the worker started to experience discomfort on September 25, 2015 when they were unloading materials at the employer's premises, which was part of their job and therefore work-related. The worker was only on the plane because they were travelling to a work assignment, and the increased symptoms and pain they experienced as a result of the flights were also work-related. The events would also be acceptable in combination, with the onset of the worker's symptoms having started when the worker was unloading the materials on September 25, 2015 and their condition and symptoms having been aggravated and worsened by their awkward positioning on the flights to another job site on September 28, 2015.

Counsel submitted that they were relying on the medical reports on file, and referred in particular to the October 20, 2020 report from a neurology consultant. Counsel noted the consultant referred in that report to the worker's complaint of chronic low back pain that started almost five years previously with a back injury at work, and opined that while the worker definitely has some degenerative joint disease, their report of almost continuous pain and spasm over the last five years is not compatible with the normal and natural history of lumbosacral degenerative joint disease.

In summary, it was submitted that the worker has not even been able to return to work since these incidents, which is all as a result of their work-related activity in September 2015, and the panel should find their claim acceptable as a work-related injury, and more importantly, as an ongoing work-related injury from which the worker continues to suffer.

Employer's Position

The employer was represented by their accounting administrator and their human resources coordinator. The employer's representatives provided information on behalf of the employer, and advised that they did not believe the claim is acceptable.

The employer's representative testified that when the worker was being hired, the recruiter or "go-between" advised that the worker usually flew business class because of their size, and asked whether this would be a problem. The representative stated that before the worker was hired, they advised "up-front" that their customer would not pay for that and if the worker wished to upgrade that would be the worker's responsibility.

The representative had testified at the original hearing on November 25, 2020, that when the worker called to advise of their symptoms on September 29, 2015, the employer offered to remove the worker from that job site, but the worker declined. The representative noted that they monitored the worker while they were there, to make sure they were okay, and that they could always have sent backup, but it was never an issue, and the worker was willing and able to complete the job.

Analysis

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

The worker has filed a claim in this case for a left lower back injury. The evidence shows that the worker reported the initial onset of some back pain and stiffness beginning on September 25, 2015 when they returned to the employer's premises and unloaded their equipment after being away for a week at a job site, but that the worker did not think anything of it. While the discomfort continued over the weekend, it was not until disembarking from the 2.5 hour flight to another job site on September 28, 2015 that the worker noted further, more intense symptoms. The worker indicated the symptoms increased over the day, but they would control them with walking and stretching, and they were able to attend the customer's job site and work there for a couple of hours, after which their symptoms had increased to the point they sought medical attention at a walk-in clinic.

The panel is satisfied that the medical reports closest in time to the date of injury support the worker sustained an injury to their lower back in the period of time between September 25 and 28, 2015. The worker attended a walk-in clinic at the jobsite location on September 28, 2015, where the physician reported the worker's injury as a herniated disc. Clinical findings of a positive left straight leg raise at 15 degrees, decreased deep tendon reflex and decreased range of motion on back flexion were noted. The physician also noted the worker's complaint of low back pain, gradual over the last week, significantly worse today after flight, and left leg paresthesia.

The worker was seen by their family physician on October 5, 2015, who reported that the worker "has herniated disk in back" and noted an impression of low back pain. The physician noted the worker reported that nothing specific happened but that there was onset of pain after getting back on a plane and the worker reported they never had similar pain previously. The lumbosacral x-ray taken that day indicated mild disc space narrowing at L3-L4 and L4-L5. The physician also requested an MRI.

The worker was also assessed by a physiotherapist on October 5, 2015, who noted the worker's report of pain on unloading equipment and further symptoms on flying after that. The physiotherapist recorded sharp radiating pain with hip flexion, radiating to outer hip and anteriorly into the inguinal crease and hip flexion more limited on left than right. The physiotherapist noted a diagnosis of low back strain/disc irritation and recommended a few weeks of treatment.

The worker's evidence confirms that there was no one moment of acute injury but that their symptoms appeared gradually, and worsened over a few days and were aggravated by sitting and by awkward positioning. This is consistent with the worker's report to the treating healthcare providers throughout.

While there is no indication that a specific incident or event occurred to directly cause an injury to the worker, the panel is satisfied that the activities or duties the worker was performing on September 25 and 28, 2015 fall within the definition of an accident under the Act as "a thing that is done and the doing of which arises out of, and in the course of, employment," that causes injury. The panel accepts that the worker's activities on their return from a job site on September 25, 2015 of unloading their tools and equipment at the employer's shop were job duties which were related to the obligations of their employment. The panel is further satisfied that the worker was acting in the course of their employment while flying to and from their next work assignment, consistent with the Travelling on the Job Policy. The panel is not aware of any evidence that the worker did anything else to cause an injury between September 25 and 28, 2015.

The panel accepts the worker's evidence that they had not experienced back pain or difficulties with their back prior to September 25, 2015. The panel is not aware of any evidence to the contrary. In the circumstances, and based on the medical findings for the period close in time to the worker's claim of injury, the panel is satisfied that the evidence supports the worker sustained an injury to their lower back as a result of their activities arising out of and in the course of their employment between September 25 to 28, 2015.

The panel is further satisfied that the evidence supports that the injury started on Friday, September 25, when the worker was unloading their vehicle at the employer's premises, and experienced minor pain and discomfort. The evidence indicates the worker's symptoms continued about the same over the weekend, and then increased or became worse on Monday, September 28, during and after the worker was on the flights to the new job site. The panel is satisfied that the worker's pain and symptoms were aggravated by the worker's flights, and by their awkward positioning during those flights.

The panel notes that the worker reported the injury to the employer and the WCB almost immediately, in the morning of September 29, 2015. The worker continued to work at the customer's location, while accommodating for his difficulties, and was able to complete the assignment and return home later that week. The worker sought further medical attention or a second opinion from his family physician on his return.

Finally, counsel has argued that the worker has continued to suffer from back issues and been unable to return to work since September 2015, all of which is due to their work-related activity in September 2015, and the panel should accept this as an ongoing work-related injury from which the worker continues to suffer. The panel notes, however, that the issue which is before us at this time is claim acceptability. The panel is therefore unable to address issues concerning the severity or duration of the worker's back difficulties or benefits where such issues have not been considered or dealt with by the WCB.

In conclusion, based on the foregoing and on a balance of probabilities, the panel finds that the worker suffered an injury by accident arising out of and in the course of their employment, and the claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of July, 2023