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 July 23, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On December 5, 2022, the WCB received an initial report from the worker’s treating chiropractor for an assessment on December 2, 2022. The worker reported pain in their neck, tingling into their arms and mid-back and intense pain in their low back after they were driving in a vehicle over rough terrain. The diagnosis was a back sprain and the worker's chiropractor recommended two weeks of sedentary duties.

The employer filed an Employer’s Accident Report with the WCB on December 7, 2022, reporting the worker injured their upper, middle and lower back as the result of an incident at work on December 2, 2022. The employer noted the worker reported tightness in their neck to their supervisor during the shift and attended the first aid station as a precaution at the end of their shift. The employer further noted the medical personnel at the first aid station noted the worker had a non-occupational injury. The WCB was also provided with a copy of the first aid station’s Treatment Report on December 7, 2022. The medical personnel noted a chronic/reoccurring injury to the worker’s lower and upper back, which was described as a non-occupational injury. On a diagram, the area of injury was indicated as the upper and lower back and it was recommended the worker seek chiropractic treatment.

The WCB spoke with the worker on December 8, 2022 to discuss their claim. The worker confirmed the mechanism of injury described to the treating chiropractor on December 2, 2022. The worker advised the WCB that the medical personnel at the first aid station must have misunderstood their reporting of a previous neck injury when they attended for their back. The worker noted they had injured their neck the previous week and had attended at a local hospital for treatment but that injury was not related to work. The worker further confirmed they had not missed time from work and had been performing modified duties until they began their vacation on December 7, 2022 and was scheduled to return to work on December 11, 2022. The worker advised the WCB they were scheduled for a CT scan for a non-occupational issue. On the same date, the WCB contacted the employer and requested clarification regarding the worker’s mechanism of injury. The WCB advised the worker indicated their supervisor was aware of their back injury caused by riding in a vehicle on rough roads on December 2, 2022. In addition, the WCB advised the employer that the worker had indicated they had a non-occupational neck injury the previous week and had sought treatment for that injury. The employer responded to the inquiry on December 13, 2022, advising the WCB that their safety supervisor indicated that the worker reported back pain to their supervisor on November 26, 2022, suspecting they had a pinched nerve. The worker sought treatment and was placed off work for a non-occupational injury. When the worker returned to work, while riding in a vehicle, the worker began to experience discomfort in their back and reported it to their supervisor. The worker was then seen at the first aid station, with the medical personnel indicating it was a chronic issue and not an acute injury. The employer provided further clarification from their medical personnel on the same date advising the worker reported to the first aid station on November 26, 2022, reporting pain to their shoulders and lower back from a non-occupational issue they believed had resolved and sought treatment with a physician on November 27, 2022 then with their chiropractor on December 1, 2022 and December 2, 2022. The worker stated to the medical personnel they had chiropractic treatment twice that week for neck and shoulder pain that happens occasionally and resolves with treatment. The medical personnel noted the worker stated on November 26, 2022 and December 2, 2022 the visits to the first aid station were for non-occupational injuries. Copies of the chart notes for the worker's visits to the first aid station on November 26, 2022 and December 2, 2022 were submitted to the WCB on December 15, 2022.

On January 3, 2023, the WCB received a copy of a report from the local emergency department for the worker’s attendance on November 27, 2022. The worker presented at the emergency department reporting neck and bilateral shoulder pain, which shoulder pain worsened with neck movement. The treating emergency physician found no cervical spine tenderness, equal strength in both arms and no loss of sensation in the worker’s fingers or face. The worker was diagnosed with neck pain, possibly related to muscle spasm/radiculopathic pain. Pain medication and time off work for November 27, 2022 was recommended and the worker was referred for a CT scan. On January 11, 2023, the WCB spoke with the worker’s treating chiropractor. The chiropractor noted their concern with the employer indicating the worker’s injury was non-occupational. The treating chiropractor advised they had been treating the worker for a non-occupational injury until that injury resolved at which time they provided the worker could return to their regular duties. Upon their return to regular duties, the worker then was a passenger in a vehicle and suffered an injury to their back and sought treatment with the chiropractor on the same date, providing a description of that incident. The treating chiropractor confirmed the injured area was larger than the area of the non-occupational injury and they provided a diagnosis of whiplash and a back strain for this new injury. On January 19, 2023, the WCB advised the employer they were accepting the worker’s claim.

The WCB spoke with the worker on February 10, 2023. The worker advised, after a chiropractic treatment in the morning of February 6, 2023, that they were experiencing extreme pain and returned to the chiropractic clinic that afternoon. They were unable to work that day due to pain. The worker advised they attended at the local hospital on February 8, 2023 and was placed off work and a CT scan was conducted. The WCB spoke with the treating chiropractor on the same date who confirmed they treated the worker on that date and while treating the worker, noticed the worker had a muscle spasm. The chiropractor advised they did not understand what happened on that date or why the worker’s symptoms worsened. They confirmed the worker was unable to work February 6, 2023 to February 10, 2023, later extended to February 24, 2023. On February 21, 2023, the worker’s treating chiropractor recommended the worker could return to work on sedentary duties and completed a Functional Abilities Form ("FAF") indicating the worker was to avoid jarring/jostling motions and they may need to go to the first aid station to perform stretches as needed. The worker attended the employer’s first aid station on February 25, 2023, reporting that they twisted while putting on their work boots and reinjured/aggravated their back. The medical personnel recommended the worker attend the local hospital for further treatment. The February 25, 2023 report from the local hospital noted the worker’s complaint of acute pain after re-injuring their back while lifting their knee to put on work boots and noted the worker reported improvement with pain medication on triage. It was noted the worker had sharp, shooting pain radiating to both their legs but full range of motion was found and it was noted the worker was ambulating with a slow but steady gait. A sick note was provided placing the worker off work until March 1, 2023.

The worker underwent an MRI study of their lumbar spine on March 8, 2023. The MRI indicated multi-level degenerative changes, noted to be more pronounced on the left.

A Chiropractor Progress Report was received by the WCB on March 14, 2023 for the worker’s appointment on March 3, 2023. The Report noted the worker’s care was being transferred to a physiotherapist as no progress had been made with chiropractic treatment. In addition, the Report noted the worker had been referred for an orthopedic consultation. A further FAF was completed placing the worker off work until March 14, 2023. The worker attended a local walk-in clinic on March 13, 2023. The worker reported they injured their back at work on December 2, 2022 and had pain in the lower back and neck since that time. The worker advised the treating physician they had been attending for chiropractic treatment but on February 6, 2023 after an adjustment, they felt pain and had not been able to work for over a month. The worker described pain in their lumbar and neck area, that radiated to their right gluteal area and legs, with occasional numbness into their toes, mostly on the right side. The physician noted the March 8, 2023 MRI found “…multilevel degeneration changes in cervical and upper spine also L5 nerve impingement”. After examining the worker, the treating physician found the worker had a normal gait, tenderness in their mid and lower paravertebral region bilateral, positive straight leg raise testing, painful range of motion in all directions and decreased power in their right lower limb compared to the left side. The treating physician diagnosed the worker with mechanical back pain and referred the worker to the spine clinic for further treatment of their back pain. A sick note was provided by the physician placing the worker off work until April 10, 2023.

On March 22, 2023, the worker was seen for an initial physiotherapy assessment, reporting pain in their posterior neck and mid back area, left side of their neck felt locked, occipital headaches, occasional electric shocks down right arm with certain neck movements, occasional right hand tremors, pain in their lumbar spine into bilateral buttocks and right leg, tingling in right leg and bilateral feet and weakness in their right leg. The treating physiotherapist queried a diagnosis of a right cervical radiculopathy and recommended further treatment. At a follow-up appointment on April 12, 2023, the physiotherapist updated the worker’s diagnosis to an L4-5 radiculopathy, greater on the right than left. On May 4, 2023, the worker was seen by a physiatrist for their complaints of neck and headache pain, right upper limb pain, mid back pain, lower back pain and right lower limb pain. On examination, the physiatrist noted the worker had a clinical presentation of chronic pain disorder, evolving out of underlying anxiety. The physiatrist indicated the worker had a relatively normal examination and recommended a significant increase in the worker’s rehabilitation and noted the worker’s anxiety would likely require management in order for them to progress in their recovery. At a follow-up appointment with their treating family physician on May 9, 2023, the worker was placed off work to June 6, 2023. The worker was seen for a virtual visit with a neurologist on May 26, 2023. The neurologist opined the worker’s chief complaint arose from their neck and recommended a further MRI study of their cervical spine. The worker attended for a follow-up with their family physician on June 21, 2023 where their medication was increased. The worker had a further cervical spine MRI on July 4, 2023 which indicated “Multilevel degenerative changes in the cervical spine most marked C4-5 and C5-6…”. The worker also attended for a follow-up appointment to review the results of the MRI on July 28, 2023. The treating physician advised the worker the MRI indicated degenerative changes of their cervical spine and provided the worker with a further sick note.

The worker’s file was reviewed by a WCB medical advisor on August 23, 2023. The advisor opined the medical evidence on file indicated the worker’s symptoms were pre-existing, chronic and non-occupational and noted the worker reported their symptoms had been present for one week earlier to the medical personnel at the first aid station on December 2, 2022. The medical personnel provided the worker had a back and shoulder strain, chronic in nature. The WCB medical advisor further opined the worker would have an uncomplicated recovery of the irritation of their pre-existing upper, mid and lower back pain. In addition, the advisor provided they were not certain of a current diagnosis for the worker but noted it would not be medically accounted for based on the reported mechanism of injury and as the worker had been previously able to work their regular duties despite having chronic upper, mid and lower back pain, the medical advisor opined the worker would not be considered totally disabled and would not require workplace restrictions. On August 30, 2023, the WCB advised the worker it had been determined they had recovered from the December 2, 2022 workplace accident and their entitlement to benefits would end as of September 5, 2023.

On September 5, 2023, the worker requested reconsideration by the Review Office of the WCB’s decision that they were not entitled to benefits after September 5, 2023. In their submission, the worker noted they continued to experience difficulties from the December 2, 2022 workplace accident and required further medical treatment as they were unable to work. On October 16, 2023, Review Office advised the worker the issue of whether or not their claim was acceptable was being added to their appeal. Review Office determined on November 14, 2023 the worker’s claim was not acceptable. Review Office accepted and gave weight to the medical information closest to the December 2, 2022 incident date, noting on November 26, 2022, the worker reported general back pain that radiated to both shoulders to the medical personnel at the first aid station and a November 27, 2022 hospital report indicated neck pain radiating to both shoulders as well. Review Office found the WCB medical advisor’s opinion of August 23, 2023 was the worker did not suffer an injury as a result of the December 2, 2022 incident and had pre-existing and chronic neck and back difficulties. As such, Review Office determined the worker's claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on March 18, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission is 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 as of the date of the worker’s accident are applicable. As the date of injury is identified as December 2, 2022, the applicable legislation is the Act as it existed at that time.

Section 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. The Act defines “accident” in s 1(1) 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 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 accident arose 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.

Worker's Position

The worker appeared at the hearing, with a representative and with the support of their spouse. The worker's representative provided a written submission in advance of the hearing and made arguments at the hearing. The worker gave evidence in response to questions from their representative, and the worker and their representative responded to questions from the panel. The worker also requested that the panel hear the evidence of a witness. The panel agreed and allowed the witness to appear via teleconference to provide evidence, which was done at the outset of the hearing.

The worker's evidence was that they had no back or neck symptoms when going to work on the day of the accident, December 2, 2022. The worker's position, as outlined by their representative, was that the worker suffered a back injury in the course of their employment, and their claim should be acceptable.

The worker's representative submits that the supervisor confirming that the worker reported they were injured on the vehicle at work and the fact that the worker sought medical attention almost immediately after reporting having been injured at work, should suffice to find the claim acceptable. The worker also relies on the evidence that work restrictions were put in place by the chiropractor as of December 2, 2022, which had not been identified prior.

The representative further submits that the evidence from the worker is that the road the worker took to their jobsite can be bumpy and can have large potholes on it. The witness also confirmed this evidence and testified that they saw the worker walking slower than usual.

The worker’s position is that the Review Office decision was improper and should not be upheld. The worker also makes the argument, through their representative, that the decision was inconsistent with WCB policies in that it was procedurally unfair. The worker states that the Review Office did not notify the employer it was expanding the issue under review, and that this occurred long after the claim had been established when evidence was no longer fresh or perhaps no longer available.

Employer's Position

The employer's representative appeared via videoconference. The representative made a presentation to the panel and responded to questions from the panel.

The employer's position was that the medical evidence on the file shows that the worker has pre-existing neck and back issues and submits that it was the worker's chronic issues and degenerative disc disease that caused the pain and not a work related injury.

The representative argues that the description of the vehicle and terrain were not enough to cause injury to the worker. The representative states that the evidence from the witness was that the vehicle would have been locked in at second gear, so the speed would have been 10 km/h and not 40 km/h as was identified on the file. The representative also points out that other workers came down the same road and in the same jeep and there were no other reports of issues with the road or injuries to workers.

The employer's position is that the decision that the claim is not acceptable should be upheld.

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 employer completed a Treatment Report form on December 2, 2022 which states “non-occ injury” under the heading, Description of Injury. The form is signed by the worker and the employer’s health aide; however the first page is not initialed by the worker. The panel accepts the evidence of the worker that they signed the workplace form which indicated the incident was a non-occupational injury (“non-occ injury”) either without fully comprehending the forms or prior to the forms being fully completed. The panel prefers the evidence from the chiropractic chart notes of the same date which are more detailed and specifically describe the injury in the vehicle while at work on December 2, 2022.

The panel relies on the medical evidence from the chiropractor, which confirms that the worker was cleared to work on December 1, 2022 (from his non-work related injury) and the evidence from December 2, 2022 when the worker returned to the chiropractor identifying symptoms and an area of the neck/back that was different from the worker’s prior visits. The panel also notes that the reporting of the injury and the seeking of treatment was immediate. Further, the reporting of the injury by the worker to WCB was consistent with the reporting to their supervisor and chiropractor.

The panel accepts the evidence of the worker and the witness that the terrain was rough and that water would pool and cause large and deep potholes in the road that the worker used to get to their worksite. The panel also accepts that travelling over a hole in a road would cause jostling and bumping that could cause injury to the worker's back.

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

The panel does note that, as argued by the worker, the employer was not advised of the expansion of the issues under review by the Review Office to the request for reconsideration. A letter was sent to the worker on October 16, 2023. A similar letter ought to have been sent to the employer and does not appear to have been. While the panel’s decision in this case does not turn on this omission, the panel notes that it is critical that all parties receive the same information regarding the issues under appeal.

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. MacKay, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of September, 2024