Decision #61/24 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker’s claim is acceptable. A videoconference hearing was held on April 24, 2024 to consider the employer'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 July 18, 2023, reporting they injured their neck and back at work on July 14, 2023. The worker described being on the telephone with a coworker when they started to experience an ache, and having to discontinue the telephone call due to increasing pain. That evening, the worker noted pain in their upper back/neck area, inability to turn sideways and stiffness. The worker felt the cause of their pain was related to their increased workload on July 14, 2023, noting they were unable to take breaks that day. The worker noted they self-treated their injury with a heating pad and reported the incident to their employer on July 16, 2023, when they were supposed to work overtime but could not due to pain.

On July 17, 2023, the worker attended for an initial physiotherapy assessment, reporting feeling immediate pain in their neck and back when standing up from their chair after a busier than usual day. The worker reported pain at their neck and low back stiffness which spread on the left more than the right to their hip and upper thigh and worsening pain with sitting. The physiotherapist noted reduced range of motion and tenderness in the worker’s lumbar and cervical spine areas and diagnosed the worker with postural/acute sprain/strain of the cervical and lumbar spine. It was recommended the worker only work half days, be allowed to self-pace and take frequent micro breaks. The WCB spoke with the worker on July 24, 2023 to discuss the claim. The worker confirmed on July 14, 2023, after a busier than usual day, they were on the telephone with a coworker when they started to experience pain in the upper back and neck area. They then ended the telephone call, stood up and felt a sharp pain in the same areas. The worker noted they were working from home that date, and had supplied their own desk and chair and was using a headset when speaking to the coworker. The worker advised they were scheduled to work overtime on July 16, 2023 but advised their supervisor and manager they were not able to work all of the scheduled overtime due to a back ache. On July 17, 2023, they attended for physiotherapy and were provided with stretching and exercises to perform and had not missed work except for the physiotherapy appointment.

The employer submitted the Employer’s Incident Report to the WCB on August 2, 2023, indicating the worker’s reporting of “…feeling pain in their upper back and neck as they were sitting at their desk working at home” on July 14, 2023. Included with the Report, was an objection letter completed by the employer’s representative. The representative submitted the worker’s claim should not be accepted by the WCB as the worker did not report their injury as being work-related and did not advise the employer they would be filing a WCB claim. Also on August 2, 2023, a Functional Abilities Form provided to the WCB by the worker’s treating physiotherapist indicated the worker was able to return to their full regular duties with restrictions of allow for self-pacing, frequent micro-breaks and use of a standing desk for a period of four weeks.

The WCB requested additional information from the employer, who, on August 14, 2023, provided the WCB with copies of email exchanges between the worker, their supervisor and manager, where the worker advised their supervisor and manager they could only work three hours of overtime due to their backache. On the same date, the WCB advised the employer they had determined the worker’s claim was acceptable. On August 15, 2023, the worker was provided with a formal decision letter by the WCB accepting their claim and providing wage loss benefits for the time missed from work due to appointments. By August 30, 2023, the worker advised the WCB their pain levels were improving and they were performing their regular job duties on regular hours at work. On September 18, 2023, the worker advised they felt they were fully recovered and the WCB advised their claim would be closed.

The employer’s representative requested reconsideration of the WCB’s decision to accept the worker’s claim to Review Office on November 14, 2023. The representative argued the WCB had accepted the worker’s claim based on the worker’s reporting of an increased workload on July 14, 2023 and not being able to take any breaks without investigating that information further. In addition, the representative noted the worker reported their injury occurred while sitting at their desk then standing up, which were normal body functions and not a mechanism of injury. On February 20, 2024, Review Office found the worker’s claim was acceptable. Review Office determined the worker consistently reported the mechanism of injury to the employer and their treating physiotherapist and found as a result of the worker's stationary positioning with minimal breaks on July 14, 2023, they developed neck and back pain while at work. In addition, Review Office found the worker reported their injury to the employer and sought medical treatment from the physiotherapist within a reasonable time. Review Office further accepted the physiotherapist’s diagnosis of a soft tissue injury as a result of the mechanism of injury and that the treatment and time off from work to attend treatment were reasonable.

The employer’s representative filed an appeal with the Appeal Commission on February 26, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"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.

The Act provides that the board shall pay compensation to a worker that has been injured by an accident arising out of and in the course of employment.

The WCB has established WCB Policy 44.05, Arising Out of and in the Course of Employment (the "Policy"). The Policy focuses on the reasoning process the WCB uses to determine whether an accident arose out of and in the course of employment.

The Policy states that because the workers compensation system is designed to compensate workers for workplace injuries, not all injuries, it is necessary for there to be a connection between the worker's accident and their employment before compensation is payable.

The Policy provides general information on the meaning of the phrases "arising in the course of employment" and "arising out of the employment". The Policy states, in part, that:

A worker's accident arises in the course of their employment when it occurs at or during work. In determining whether a worker's accident arose in the course of employment, the WCB generally focuses on evidence regarding the time and location of the accident. If the event(s) that caused the worker's injury occurred during work, at a place where the worker is reasonably expected to be, the accident arose in the course of employment.

A worker's accident arises out of their employment when employment related activities or exposures cause the accident. The WCB interprets the concept of "employment related activity" broadly, to include activities that are both directly and incidentally related to the worker's employment. In other words, the activity causing the worker's injury need not be directly related to a specific job task. If the activity is reasonably incidental to the obligations and expectations of the employment, then the WCB will consider it to be an employment related activity

If the evidence establishes that the accident arose out of the worker’s employment, but there is insufficient evidence to establish that it arose in the course of their employment or vice versa, the WCB must apply the presumption found at section 4(5) of the Act.

Section 4(5) of the Act states as follows:

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

Worker’s Position

The worker did not participate in the employer’s appeal.

Employer’s Position

The employer was represented by counsel who made a written submission as well as an oral submission on behalf of the employer and relied upon previous submissions made to the Review Office. The representative also answered questions posed by members of the appeal panel.

The position of the employer is that there is insufficient probative evidence to confirm that an injury arose out of and while in the course of employment, while the worker was at home. The employer's representative points to the Policy which states:

"When there is insufficient evidence to establish that a worker's accident arose out of their employment and also insufficient evidence to establish that it arose in the course of their employment, the legal test of "arising out of and in the course of employment" is not met. The accident is not related to their employment."

The employer's representative also submits that the employer investigated the matter and made inquiries of the worker's colleagues and notes that the worker's colleagues did not indicate that there was any work related cause for the injury.

The employer states that the worker reported to the WCB that they did not take any breaks on the date of the accident. The employer argues that this is not realistic. The employer further states that the nature of the worker's employment duties does not require highly repetitive, forceful flexion or extension, gripping or pulling or twisting or awkward positioning, which would be necessary for the development of an acute sprain, like the physiotherapist noted. The employer's representative argues that there is no medical reporting on causation or review by a WCB specialist. Therefore, the employer's position is that there is no medical evidence to establish that sitting at a desk and then standing up was the clinical cause of the injury.

The employer submits that it was improper to grant the worker entitlement to benefits and is seeking to have the Review Office decision overturned.

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 the worker did not sustain an injury as a result of an accident arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore, the employer’s appeal is not granted. The worker’s claim is acceptable.

The panel accepts the evidence of the worker, provided through the notes and memorandums on the WCB file, that the worker sat for several hours and took less breaks than usual on the day of the injury. The worker reported her symptoms ("a severe back ache") to her employer via email on a Sunday and indicated that she was experiencing these symptoms since Friday. The worker then provided a description of the incident to her physiotherapist at an appointment the next day (Monday).

The panel disagrees with the employer's argument that the WCB accepted that an injury occurred without a mechanical stressor and/or inciting element that is reasonable to have caused injury. Rather, the panel accepts that sitting for long hours caused the symptoms reported by the worker to their physiotherapist. The panel relies on the physiotherapy reports, which describe the symptoms of low back pain and stiffness and reference the worker's prolonged sitting at work. The panel does not agree with the employer that a medical review or analysis on causation is required in this instance. The panel accepts that prolonged sitting can cause back pain.

The panel places little weight on the comments from the worker's colleagues and the lack of reporting by the worker to their colleagues. The panel does not find it reasonable to expect that a worker would contact their coworkers regarding their injury, especially when the injury occurred on a Friday, while at home. It may be more reasonable to expect a worker to advise their colleagues if the injury happened at work and if the worker's job involved physical tasks or tasks that required assistance from colleagues.

The evidence is that the worker's accident occurred during work hours, while the worker was working from home, which was an agreed upon arrangement with the employer. There is no evidence to the contrary before the panel. Therefore, the panel finds that the worker's accident arose in the course of their employment.

The evidence is also that the worker's accident was an employment related activity within the meaning of that term in the Policy being "reasonably incidental to the obligations and expectations of the employment". Therefore the panel finds that the worker's accident arose out of the employment.

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

The employer's appeal is dismissed

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2024

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