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 June 11, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On April 13, 2023, the WCB received a Physiotherapy Initial Assessment for an appointment on April 11, 2023. It described the worker’s area of injury as lower back and bilateral legs and noted the worker’s description of the incident that caused the injury as “Gradual onset of symptoms since 1 year ago, gotten worse this recent 6 months due to increase in workload.” The report noted the worker’s complaints of gradual onset of constant numbness/tingling and soreness from their lateral glute area to their posterior heels, worse when bending over, prolonged sitting or performing one of their job duties. Further, it was noted that a March 21, 2023 CT scan ordered by the worker’s family physician indicated an L4/5 disc protrusion and the worker had been placed off work until May 7, 2023. The treating physiotherapist examined the worker and found increased numbness, tightness and soreness down the worker’s posterior thighs on lumbar flexion, increased soreness to right lower back at the end of the range of right hip flexion, a positive straight leg raise test at 70 degrees bilaterally, lumbar extension caused centralized pain to the lower back with lumbar flexion causing increased numbness/tingling and soreness down the worker’s posterior thighs. The physiotherapist diagnosed the worker with a lumbar spine disc protrusion and noted the worker was off work per their family physician. It was recommended the worker not bend over/forward, not engage in prolonged sitting, or perform the specific job duty for two weeks to allow the irritation to settle.

The worker submitted their Worker Incident Report to the WCB on April 18, 2023, reporting an injury to their waist that occurred at work on March 7, 2023. The worker reported that on March 7, 2023, their legs were completely numb and they were unable to perform their job duties. They reported to their supervisor and then made an appointment with their physician. The worker further noted they began to experience difficulties with their legs in 2022, with x-rays in November 2022 not indicating any concerns but the worker experienced ongoing and worsening symptoms since that time. The worker indicated on their Worker Incident Report, the employer had given them warnings to improve their efficiency and as such, they had been working harder and faster, causing their legs to feel more and more painful, until March 7, 2023, when they could not perform their job duties at all. They noted they had been placed on a medical leave from March 10, 2023 to March 17, 2023, and returned to work on March 20, 2023 when they experienced ongoing and increasing symptoms and on March 22, 2023, advised their supervisor they were seeking medical treatment. On March 24, 2023, the worker sought medical attention. A March 27, 2023 CT scan, recommended by the treating physician, found a disc herniation and it was recommended the worker remain off work for six weeks and attend for physiotherapy.

The employer submitted an Employer's Accident Report to the WCB on April 18, 2023 indicating that an injury was not reported to them as being related to the worker's job duties, only that the worker had reported to their supervisor their back/back of their legs were sore and had been ongoing for a while. The supervisor recommended the worker attend for medical treatment as this had been going on for a while, with the worker's physician placing them off work for one week from March 10, 2023 to March 17, 2023. The worker then had a CT scan conducted, and a Functional Abilities Form was completed indicating they should remain off work until May 7, 2023.

A copy of the April 19, 2023 CT scan was placed on the worker's WCB file on April 26, 2023 and indicated "Central disc protrusion at L4-L5, again indenting the thecal sac and contacting the L5 nerve roots. It is noted the patient had the same study for the same indication less than 1 month prior." Also on April 26, 2023, a copy of the March 24, 2023 CT scan referred to in the April 19, 2023 scan was placed to the worker's file and indicated "Central disc protrusion at L4-L5. Disc material contacts the L5 nerve roots bilaterally without convincing evidence of nerve root compression. Mild compression or nerve root irritation however is difficult to exclude."

The WCB contacted the worker on April 26, 2023 to discuss their claim. The worker described their job duties to the WCB, advising the difficulties started in their legs, which they did not realize were as a result of their job. The worker advised their job duties included sitting, then using a stepping motion to push a button on machinery, which they perform 8 hours per day as a full-time employee. The worker further advised they were attending physiotherapy twice a week, and was feeling better but did not feel they were recovered. The worker also noted they had not been offered modified duties by the employer and they remained off work. After the discussion, the worker provided further information in an email to the WCB on the same date. The worker noted their belief was that their injury was a result of the repetitive motion of their job duties and the employer's requirement for a certain level of efficiency. The worker noted attempts were made to adjust their working area including the height of their chair and the position of the machine, but it did not help. The worker also noted they initially thought it was an injury to their legs but after a CT scan in March 2023, it was found to be an issue with their spine.

On April 26, 2023 and April 27, 2023, the employer provided the WCB with a copy of the job description for the worker's position, along with two Corrective Action Forms, dated September 29, 2022 and October 12, 2022, indicating the worker had been verbally spoken to by their supervisor and manager on those occasions regarding their efficiency and noted that further training and support would be offered in an attempt to increase their efficiency to an acceptable level. On April 27, 2023, the WCB advised the worker their claim is not acceptable as a causal relationship between their diagnosis of a disc protrusion and their job duties could not be established.

The worker submitted additional information and asked the WCB to reconsider the decision on May 30, 2023. The worker provided a letter dated May 25, 2023 from their treating physiotherapist which provided that the restrictions for the worker on returning to work was the requirement to change positions (from sitting/standing/walking) every 20 to 30 minutes; the ability to take breaks as needed and no carrying/lifting from ground level, no bending forward/over and no using a foot powered sewing machine. Also included with their request were emails between the worker and the employer indicating the worker will return to work on May 29, 2023 with restrictions. The worker also provided the WCB with links to internet sites with studies the worker believed indicated a link between similar job duties and disc protrusions. On June 6, 2023, the WCB advised the worker the new information had been reviewed but there would be no change to the earlier decision their claim was not acceptable.

The worker requested reconsideration of the WCB's decision to the Review Office on June 12, 2023. In their submission, the worker noted they attempted to return to work on June 12, 2023 but could not due to pain and their employer did not offer modified duties. The worker also provided a June 8, 2023 note from their treating physiotherapist indicating the same restrictions as previous, specifically that the worker should not be bending forward/over repetitively, which the worker noted was their position when performing their job duties. The worker indicated their injury was a result of repetitive and cumulative workload and was a result of a combination of events. On June 27, 2023, the worker provided additional information to the Review Office, including further internet articles regarding injuries to people who work in the same occupation at the worker and further details regarding the employer's request for the worker to improve their efficiency. On July 24, 2023, the Review Office spoke with the employer to gather further information. The employer confirmed the worker's last day working was March 10, 2023 and the worker had not returned to work. Further, the employer confirmed there had been no change to the nature of the work the worker was performing, only that the employer required the worker to reach the efficiency levels set out in their company policy. The Review Office requested to speak to the supervisor to whom the worker had reported their injury. On July 27, 2023, the Review Office spoke to the supervisor who advised that they first learned of the worker's back/buttock/leg difficulties on March 27, 2023 when it was reported to them and when they received a medical note. The supervisor confirmed they had been the worker's supervisor since 2021 and had not heard any complaints from the worker until that date. The supervisor further confirmed adjustments had been made to the worker's job site months prior to the worker providing the medical note on March 27, 2023. When asked by the WCB, the supervisor noted the worker's performance had improved between the verbal warning the worker received in September 2022 and March 2023 but the worker still remained under the efficiency level required by the employer. On August 1, 2023, the Review Office also reviewed other claims the employer had with the WCB, in particular, dealing with the worker's position and disc prolapse difficulties with no claims found for workers with low back/disc prolapse complaints in similar positions.

The Review Office determined on August 11, 2023, the worker's claim was not acceptable. The Review Office considered the information provided by the worker and found the worker's job body positioning and movements while performing their job duties were not consistent with heavy lifting, twisting or bending required for a disc protrusion to develop. In addition, the Review Office found the worker did not describe a traumatic incident that would give rise to the low back/buttock/leg complaints the worker was describing and could not find a relationship between the worker's job duties and those difficulties.

The worker's representative submitted further medical information on December 12, 2023 and requested reconsideration of the earlier decision to the Review Office. The representative presented the argument that the worker's employment-related factors while performing their job duties resulted in the worker's lower back and bilateral leg and knee difficulties. A November 16, 2023 report from an ergonomist was provided which indicated the worker's "…spine and back structures experienced excessive mechanical stress while operating the sewing machine to install pockets." In addition, "There appears to be sufficient physical demands and musculoskeletal risk factors to produce cumulative wear and tear to the spine and low back structures including the disc." An ergonomic review of the worker's job site and associated tasks was recommended. Further, a November 22, 2023 report from a physician with an interest in occupational medicine was also included. The worker was examined by the physician on five occasions with the physician concluding the worker presented with an L4-L5 disc protrusion and L5 nerve root involvement which they opined the worker's job duties was "…the greatest causal contributor to the development of her disabling back condition of L4-L5 disc protrusion." Further medical information was also provided in the form of chart notes from the worker's physiotherapist and family physician. At the request of the Review Office, the medical information and the worker's file were reviewed by a WCB medical advisor on December 27, 2023. The advisor opined the worker's job activities as described would not likely cause the disc degeneration indicated on the diagnostic imaging on the worker's file. In addition, that imaging indicated lumbar disc degeneration and protrusion, which the WCB medical advisor further opined to be pre-existing and progressive. A copy of the opinion was provided to the parties on January 3, 2024, with the worker's representative providing a response on January 26, 2024.

On February 5, 2024, the Review Office again determined the worker's claim was not acceptable. The Review Office accepted and relied on the opinion of the WCB medical advisor and determined the worker had pre-existing degenerative changes in their low back, which predated their employment with the employer. In addition, the Review Office found the worker's cumulative job activities did not cause structural changes to their disc and as such, did not support a causal relationship between those job duties and the worker's degenerative changes/L4-L5 disc protrusion.

The worker's representative filed an appeal with the Appeal Commission on February 12, 2024 and a hearing was arranged. 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 September 4, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

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 on the date of the accident apply.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of employment. The Act defines “accident” 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 has established Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) to describe the process to determine whether an accident arose out of and in the course of employment.

Worker’s Position

The worker was present at the hearing, along with their worker representatives. The worker’s representatives made submissions to the panel and posed questions to the worker. The worker and their representatives responded to questions from the panel.

The worker’s position is that the worker’s injury would not have occurred but for the employment related factors the worker was exposed to while performing their job duties as a sewing machine operator.

The worker’s evidence was that they immigrated to Canada in August 2019 and had no health problems. The worker stated that they began working for the employer in November 2021 and were able to perform their job duties without issue. The worker further stated that within 14 months of starting to work they began to experience a gradual onset and progression of lower back, bilateral leg and knee difficulties. This led to the worker seeking medical treatment on October 31, 2022 and it was documented that the worker's complaints were in relation to performing their job duties.

The worker’s position is that the medical evidence supports the worker experienced a loss of earning capacity and required medical aid as a result of a work-related injury. The worker relies on the report of a community-based physician which states that the ergonomics of sitting in a forward bent position with close concentration as a sewing machine operator is the most likely contributor to the L4-5 disc protrusion in the worker’s case. The worker also relies on a report by an ergonomist, who opines that there appears to be sufficient physical demands, musculoskeletal risk factors, and increasing demands out of the normal production of work to result in mechanical straining to the low back area, specifically risk factors associated with L4-L5 disc herniation.

The worker submits that their lower back, bilateral leg and bilateral knee difficulties arose out of and in the course of employment and therefore their claim ought to be accepted.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained 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.

The panel first considered the job duties of the worker. The worker’s evidence was that their duties included sewing the pockets onto winter jackets, which involved prolonged sitting, in a bent forward, flexed position and repetitive stepping on a sewing machine pedal. The worker also occasionally had to lift bags containing jackets from the floor to table height.

The panel also considered the nature of the injury claimed by the worker. It is noted that there was no specific event or incident resulting in injury to the worker; rather it was a gradual onset of symptoms, or “difficulties” as the worker described them. The worker described symptoms of numbness, tingling and soreness from their lower back, waist and buttocks down to their heels. The worker denied engaging in any activities outside of work that would cause their symptoms.

The panel considered the opinions of the worker’s treating medical professionals, including the opinion of an ergonomist that prolonged postures and stooped rotational movements of sewing machine operators causes wear and tear to lower back muscles and ligaments and the opinion of the medical consultant that the worker’s postural constraints of their work contribute to their back condition.

The panel further considered the CT scan of March 24, 2023 which identified a disc bulge with small to moderate central disc protrusion and the CT scan of April 19, 2023 which again identified a mild to moderate disc protrusion and referred to calcification of the disc. The WCB medical consultant opined that the calcification that was noted would suggest chronicity.

The panel places greater weight on the opinion of the WCB medical consultant which provides that neither poor posture nor repetitive use of a low-resistance foot pedal would result in the changes to the spine present in the worker’s imaging reports. The panel accepts the opinion that disc protrusions, herniations and extrusions can occur as a progression of degenerative changes in the spine.

The panel does not accept that the specific ergonomics and job duties of the worker were enough to result in a disc herniation or an annular fissure. The panel is not satisfied that the worker’s job duties over the course of the months leading up to the development of the symptoms or any expectations in increase in productivity could have caused the development of the symptoms. Rather, the panel is of the view that the findings on the imaging studies would have taken an extended period of time to develop and would not have developed during the period of time the worker was working for the employer in question.

Based on the evidence before it, the panel finds, on a balance of probabilities, that the worker’s injury was not causally connected to their workplace duties and therefore, the panel is unable to establish that the worker suffered a personal injury from an accident that arose out of and in the course of their employment. Therefore, the claim is not acceptable, and the worker’s appeal is denied.

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 4th day of October, 2024