The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A videoconference hearing was held on September 25, 2023 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On June 20, 2018, the worker submitted a Worker Incident Report to the WCB reporting an injury to their lower back that occurred at work on April 11, 2018. The worker described pain after lifting heavy items during a busy time at work, indicating that on the last day they worked, they lifted a particularly heavy item that “…put me on the ground.” The worker noted they had applied for disability insurance, which had recently ended, and thought they could return to work but were still in pain and could barely move. The worker also noted the employer had contacted them and advised that there were no light duties available. The Report included details of the medical attention the worker sought.

The WCB received copies of medical reports from the treating healthcare providers on June 21, 2018. A January 29, 2018 report from the worker’s treating physician noted the worker’s report of on and off low back pain that started 3 months previously, was shooting and burning in sensation, at the middle part of their back, and difficulty walking due to the pain. The physician recorded findings of decreased range of motion in flexion and extension, increased tenderness over the lower lumbar spine and a positive straight leg raise rest on the left side and provided a diagnosis of back pain, not yet determined with further investigation needed. The physician ordered a lumbosacral spine MRI study and outlined restrictions of avoiding movements that triggered back pain (twisting/climbing/bending). In the physician’s chart notes for the worker’s follow-up appointments on February 16, 2018, February 27, 2018 and March 6, 2018, the physician recorded the worker’s report of back pain that started 3 to 4 months previously and was increasing, and noted the worker advised they had experienced back pain for many years but believed it to be more severe than previously. Based upon the worker’s reported symptoms and the clinical findings, on February 16, 2018, the physician diagnosed back pain, not yet determined, and queried a disc herniation or spinal stenosis. The February 27, 2018 chart notes indicated continuing complaints of the same nature, and the physician reiterated their diagnosis and queried disc herniation or spinal stenosis. On March 6, 2018, the treating physician noted the worker still had back pain but no new symptoms since previous appointments and provided a diagnosis of chronic back pain, not yet determined. The medical reporting included the findings from the April 11, 2018 lumbar spine MRI, which indicated a “…very shallow disc bulge” at L4-L5 and a “…large left lateral disc protrusion compressing the left S1 nerve root significantly” at L5-S1. After the treating physician reviewed the results with the worker on May 22, 2018, they referred the worker to a neurologist. On June 21, 2018, the worker attended a further follow-up appointment to complete the forms for their WCB claim. At that time, the treating physician noted the worker’s report of continued pain in their lower back radiating to their left thigh, leg and foot that started while at work, when they attempted to lift a heavy item with their hands using their left knee to support the item after which they experienced very bad back pain.

When the WCB contacted the employer to discuss the claim on June 22, 2018, the employer advised the WCB the worker had not reported an accident or an injury and had not worked since January 2018.

The WCB also contacted the worker on the same date to gather further information. The worker clarified that April 11, 2018 was the date of their medical treatment but advised that a specific injury occurred on January 28, 2018. The worker noted on that date, they removed an item weighing approximately 70 pounds from the equipment they were working on and placed it on a support, due to their back pain because of a previous WCB claim. On that day, the worker stated, they needed to use their left knee to brace and prop up the item as they replaced it on the equipment. The worker advised that on lifting their knee, they experienced intense pain in their back and couldn’t perform their job duties again after that. The worker stated their employer sent them home, and they took a couple of weeks off, hoping the pain would improve, but when it did not, they applied for disability insurance. When asked why they did not report the injury and file a WCB claim in January 2018, the worker advised they did not have a good experience with the WCB on their previous claim and therefore felt the WCB would not support this claim. The worker explained that their current back pain was in their lower back, radiating through their hip, down the back of their left leg and they sometimes experienced tingling all the way down to their left heel. The worker confirmed that the present pain was the same as they had previously, but now also radiated down their left leg. The worker stated their physician referred them to a neurosurgeon, but they did not yet have an appointment date.

On June 28, 2018, the WCB advised the worker that their claim is not acceptable. The WCB noted the worker’s report of lifting a heavy item on January 28, 2018, which caused them significant pain and that they had not worked since that date. The WCB further noted that although the worker sought treatment the next day, they did not at that time report a workplace accident as the cause of their back pain, instead reporting ongoing back pain for 3 months, without a specific cause, to their physician. As well, the WCB noted the worker did not report an incident to the employer. For these reasons, the WCB could not establish an accident occurred arising out of and in the course of the worker’s employment.

The worker’s representative submitted additional medical information to Review Office on August 25, 2022 and requested reconsideration of the WCB’s decision to deny the worker’s claim. The representative noted that while the worker had chronic thoracic spine pain arising from their previous workplace accident, the worker’s current pain was in their lumbar spine and was the result of the January 28, 2018 workplace accident. The representative included a copy of the worker’s application to a disability insurance program and noted that investigation indicated the worker met the criteria for benefits with a “…severe and prolonged medical condition that prevents [the worker] from pursuing any regular work for the foreseeable future.” As such, the worker’s representative submitted that the medical evidence supported acceptance of the worker’s claim.

Review Office determined on October 24, 2022 that the worker’s claim was acceptable. Review Office considered the evidence and found the worker sustained an injury as the result of an accident that occurred on January 28, 2018. Review Office found the worker’s report of an incident lifting a heavy item on that date, along with the medical evidence of January 29, 2018 noting the worker’s reporting of back pain, and the disability insurance application noting the worker stopped working on January 28, 2018 due to a medical condition, all support the worker injured their low back at work. Review Office returned the file to the WCB’s Compensation Services for further adjudication.

On December 5, 2022, the employer requested reconsideration of the Review Office decision based on new information, including that the date of accident reported by the worker and accepted by the WCB was a Sunday, when the employer’s premises were not open for business. In addition, the employer noted the invoices submitted by the worker leading up to the reported January 28, 2018 accident date did not indicate that the worker would have needed to lift any heavy objects on January 26, 2018.

On January 9, 2023, the worker’s representative submitted information in response to the employer’s reconsideration request, indicating the worker’s recollection of the accident was now that it occurred on January 26, 2018, not January 28, 2018 as previously noted. As well, the representative indicated the information provided by the employer noted a particular job performed by the worker, which did not involve lifting a heavy item; however, the worker advised that their job duties that day did involve removing and lifting a heavy item. Both the employer and the worker’s representative provided further information which the WCB shared with the parties.

On January 30, 2023, Review Office confirmed the worker’s claim was acceptable. While Review Office acknowledged the employer’s attempts to clarify their concerns with the worker’s claim, Review Office preferred to rely on the information provided in closest proximity to the workplace accident. Review Office noted the employer’s accident report indicated the worker reported back pain, shooting down their leg on January 30, 2018 and indicated the incident occurred on the employer’s premises. Review Office found the medical evidence supported a finding that the worker injured their lower back. Review Office agreed the workplace accident occurred on January 26, 2018. As such, Review Office determined the claim was acceptable.

The employer filed an appeal with the Appeal Commission on March 17, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect at the time of the accident are relevant.

The definition of an accident set out in s 1(1) of the Act is “a chance event occasioned by a physical or natural cause” that includes any “event arising out of, and in the course of, employment” as a result of which a worker is injured. When it is established that a worker has been injured as a result of an accident as defined by the Act, the worker is entitled to benefits under s 4(1) of the Act.

Employer’s Position

The employer was represented in the hearing by its current owner and president, with support from the former owner, who was the employer at the time of the worker’s claim. The employer’s representative made an oral submission in support of the appeal and relied upon the written submission provided to the Appeal Commission on September 12, 2023. The former owner provided testimony through answers to questions posed to them by members of the appeal panel.

The employer’s position is that the evidence does not support a finding that the worker was injured as a result of an accident in the workplace in January 2018, noting the delay in reporting of an injury and the numerous inconsistencies in the worker’s reporting and recollections of the events. For these reasons, the worker’s claim should not be accepted.

The employer outlined in their written submission that on Tuesday, January 30, 2018, the worker arrived at work and informed the then owner that their back was quite sore, and they had seen their doctor and would be taking time off work. The employer noted that the worker did not state that they hurt their back at work or that anything occurred at work to cause an increase in the worker's back symptoms. The employer noted that when the former owner was contacted by the WCB on June 22, 2018 and advised of the worker’s claim, the former owner indicated that this was the first they were hearing of it and that the worker had not been at work since January 2018.

In their submission, the employer pointed out numerous discrepancies and inconsistencies in the claim file information, including the following:

• The worker initially reported their injury as occurring on January 28, 2018 but that was a Sunday, when the employer’s business was closed; 

• The worker reported that the injury occurred when lifting a heavy object at work with specific details of that task provided by the worker’s counsel, but the employer’s records do not confirm that such a task took place in January 2018, and further that those records confirm that on January 26, 2018 the worker performed a task that involved a lighter, but similar object than the worker described they were lifting when the injury occurred; 

• The worker claimed that they screamed out in pain, dropped to the ground and were not able to continue working when the injury occurred, and were sent home by the employer, but the employer does not recall or confirm those details, nor are those details contained in the report from the treating physician of January 29, 2018. Furthermore, the employer’s job records indicate that the worker completed their work on January 26, 2018; and 

• The worker did not indicate to their treating physician that an injury occurred at work until June 21, 2018, which was after the worker’s conversation with a WCB claims manager on June 20, 2018 in which the WCB confirmed to the worker that their claim for recurrence of their prior injury on a different WCB claim file would not be accepted and that they would need to make a new claim resulting from a new injury.

The employer does not dispute that the worker injured their lower back but submitted that the worker’s injury to their low back was not caused by an accident arising out of and in the course of employment, but rather due to an injury outside the workplace that occurred at some time between January 27-29, 2018.

For these reasons, the employer submits that the worker’s claim should not be acceptable, and the employer’s appeal should be granted.

Worker’s Position

The worker attended the hearing and was represented by legal counsel who made an oral submission on behalf of the worker and relied upon their prior written submissions to the WCB Review Office. The worker provided testimony through answers to questions posed to them by members of the appeal panel.

The worker’s position, as outlined in their counsel’s submission, is that although there was a delay in reporting the accident resulting in injury to their lumbar spine, the evidence confirms that the worker did sustain a lumbar spine injury while at work and in the course of work on January 26, 2018, and therefore the claim should be accepted.

Counsel for the worker submitted that because of the worker’s prior experience with another WCB claim, which they perceived as negative, and the worker’s belief that the injury was not that serious, and they soon would recover, the worker chose to claim employment insurance benefits rather than making an accident claim. It was only some 15 weeks later, when the worker’s symptoms were not resolved and their eligibility for employment insurance benefits ended, that the worker decided to pursue a claim with the WCB and advised their medical treatment providers accordingly.

In respect of the date of accident, the worker’s position is that the injury occurred on January 26, 2018. Counsel for the worker explained to the panel that this was the last day worked and that the worker saw their physician on January 29, 2018. Counsel acknowledged that the worker’s confusion in terms of the date of injury was due in part to the worker’s delay in reporting the injury to the WCB. The worker’s position is that the injury occurred on Friday, January 26, 2018 and that they first sought medical attention for the injury on Monday, January 29, 2018 and advised the employer on January 30, 2018 that they were taking some time off due to their back pain.

The worker’s counsel submitted that the worker has a pre-existing back condition, but in the thoracic region of the worker’s back, and that condition has not resulted in symptoms of shooting pain into the worker’s leg. Counsel submitted that the panel should consider the medical reporting indicating that the worker was experiencing back pain in the 3 months before the workplace incident as referring to the pain from the pre-existing condition, which was in the worker’s upper back, and not to the lower back or causing shooting leg pain. Counsel also noted that the worker continued with their regular job duties despite the increase in the symptoms of their pre-existing upper back condition until the injury on January 26, 2018, but after that, they were not able to continue with their physically demanding job duties.

The worker’s counsel submitted that the April 12, 2018 MRI study confirmed the worker sustained a disc protrusion injury in their lumbar spine and that the worker did not have any pre-existing degenerative condition in their lumbar spine. Counsel further noted that there is no evidence of any prior injury to this part of the worker’s lumbar spine.

Counsel for the worker further submitted that the evidence confirms that the employer was aware of the worker’s workplace injury, as the employer’s report to the WCB, provided in early July 2018, confirms that the worker reported they experienced an increase in back pain symptoms, with pain shooting down their leg, after the day’s work in late January 2018, and that the worker planned to take a few days off to see a doctor. Further, the employer’s report confirms that the injury took place on the employer’s premises. As such, the worker’s claim is substantiated by the employer and should be accepted.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the employer’s appeal to succeed the panel would have to determine that, on a balance of probabilities, the worker did not sustain an injury as a result of an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was unable to make such a determination and therefore, the employer’s appeal is denied.

In respect of the date of accident, the worker’s position is that the injury occurred at work on January 26, 2018, which is the last day they worked before seeking medical treatment in relation to that injury on January 29, 2018. The panel noted that this is consistent with the information provided by the employer that on January 30, 2018 the worker advised the former owner that the worker’s back was quite sore, and they had seen their doctor and would be taking time off work. It is also consistent with the information provided by the employer to the WCB in the Employer Injury Report signed by the former owner on June 26, 2018 and received by the WCB on July 5, 2018. In that report the employer wrote that the worker reported injury on January 30, 2018, noting that the worker “…had lower back pain since [they were] hired…. It got worse over the years. [They] saw doctor for compensation last year. Pain got bad in winter but on Jan 30/2018 the pain was shooting down [their] leg. After the day’s work, [the worker] was going to take a few days off & see doctor.” The employer went on in that report to indicate that the injury occurred on the employer’s premises with an explanation that “The final pain did”. The evidence before the panel confirms that the worker worked as usual on Friday, January 26, 2018, was not at work on Sunday, January 28, 2018 when the business was closed, sought medical treatment on Monday, January 29, 2018 and attended work on Tuesday, January 30, 2018 to advise the employer they would be taking time off due to their back pain. Further, the evidence confirms that the worker did not return to their job duties after January 26, 2018. The panel noted that although the Worker Incident Report indicates that the worker was off work since April 11, 2018, which was initially indicated as the accident date in that report, the WCB claim file confirms that the worker advised the WCB on the date of their report that they last worked on January 28, 2018. The panel finds that the confusion in terms of the dates was likely the result of the passage of time between the last day worked and when the worker made their claim to the WCB nearly five months later, and based on the evidence, we are satisfied that the correct accident date for the purposes of this claim is January 26, 2018.

The panel acknowledges the employer’s concern that the file evidence is replete with inconsistencies in respect of the details of the worker’s claim. As outlined above, for example, there are multiple accident dates recorded. The inconsistencies, compounded by the fact that the worker did not report an injury at work to their treating medical care providers or the WCB until June 2018, has caused some challenges for the employer in responding to the claim. While the panel does not accept the employer’s assertion that the inconsistencies necessarily point to the conclusion that there was no accident or injury sustained by the worker while at work on January 26, 2018, we agree that these circumstances highlight a need for a close examination of the evidence.

The panel considered whether the mechanism of injury as described by the worker could result in injury to their lumbar spine. We accept the worker’s description of using their left knee to help to hold the heavy object in place while they secured it. Although the worker did not provide this information until June 20, 2018 when first speaking with the WCB case manager, this is the description of the mechanism of injury most proximal to the date of accident. The panel finds that the described body positioning could involve some twisting or rotation of the lower spine and that lifting a heavy awkward item and holding it in place in this position could have caused stress or strain upon the worker’s lumbar spine. While the exact weight of the item being lifted and held in place by the worker using their left knee is not known, we are satisfied that there is evidence it was a heavy and awkward object to hold in such a position. The panel also noted that the described mechanism of injury correlates with the findings outlined in the initial medical reporting. The physician’s chart note of January 29, 2018 indicates that the worker presented with back pain that radiated into their left leg and difficulty walking. The clinical findings from that assessment note “Tenderness over the lower lumbar spine Positive straight leg raise test on the left side Positive figure of 4 test bilaterally, painful at the left side” and the physician queried disc herniation, spinal stenosis and order a lumbosacral spine MRI study. The physician’s chart notes detail similar clinical findings and diagnoses offered in their assessments after the worker was removed from employment.

The employer has also raised a concern that the worker had a pre-existing back condition which was already symptomatic at the time of this event. Counsel for the worker distinguished the injury of January 26, 2018 as being to another region of the worker’s back, separate from the worker’s history of mid-back complaints. The panel noted that while the medical chart notes indicate the worker initially attributed their back pain to their prior back injury and periodic symptom flareups, the evidence in relation to the worker’s prior injury, from another WCB claim file, indicates that as of February 9, 2017, the worker did not have any low back symptoms. In a report from a WCB call-in examination in relation to that claim, the WCB medical advisor specifically noted the worker walked with a normal gait, had no tenderness to palpation of their lumbar spine and negative findings on straight leg test bilaterally, and concluded the worker had non-specific mid-back pain. The panel accepts and relies upon this evidence as supporting the worker’s position that their pre-existing back condition is unrelated to the clinical findings reported on January 29, 2018.

The employer also submitted that the worker’s lumbar back injury was more likely than not the result of an accident or cause outside the worker’s employment, pointing to the evidence that in December 2018 the worker reported an increase in symptoms after lifting a deer. The panel makes no findings in respect of the worker’s condition in December 2018 but considered the employer’s concern that there may be another cause for the worker's condition after January 26, 2018. As detailed above, in this case, even the worker initially attributed their symptoms to another cause, being their pre-existing mid-back condition, but this is not supported by the medical findings. The panel also noted that the absence of specific evidence to support the employer’s position that the worker injured their low back between January 27-29, 2018 while away from work. As such, this is speculation on the part of the employer, and the panel is satisfied that there is no evidence of any other cause for the worker’s lumbar spine injury than the incident claimed by the worker.

On considering the totality of the evidence before us, and applying the standard of a balance of probabilities, the panel is satisfied that the worker was injured on January 26, 2018 as a result of an accident arising out of and in the course of their employment. Therefore, the worker’s claim is acceptable, and the employer’s appeal is denied.

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 6th day of October, 2023