The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 14, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this case on October 14, 1999 and again on February 2, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On September 30, 1998, the claimant submitted a claim for compensation benefits indicating the following:

"During heavy workloads, I sit at my computer for long periods of time (3-4 hours) without taking a break. This creates strain in my upper body and left leg. This caused me to limp when I got up from my workstation and created pain in my neck, R and L shoulder and leg. The pain intensifies during the night and wakes me up."

The diagnosis reported by the attending chiropractor on August 25, 1998, was multiple vertebral subluxation with repetitive injury syndrome. X-rays taken in September 1998 of the lumbar and cervical spines revealed osteoarthritic degenerative changes.

During a telephone conversation with the claimant on November 30, 1998, a Workers Compensation Board (WCB) adjudicator documented that the claimant went on holidays for 2 weeks in June and when she came back to work she was feeling fine and relaxed. She did not do anything strenuous during her vacation. While performing her regular duties in August 1998 she began having difficulties with her back and neck along with left leg pain. The only explanation she could think of for her left leg pain was from sitting all day at the computer. There was no specific accident or incident to cause her problems and no extracurricular activities.

On December 7, 1998, Claims Services denied the claim in accordance with Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). Claims Services was of the view that a direct relationship between the development of the claimant's back, neck, arm and left leg difficulties and an accident arising out of and in the course of her employment had not been established. An advocate, acting on behalf of the claimant, appealed this decision on January 8, 1999.

On February 12, 1999, Review Office stated that the claimant was likely to be susceptible to periodic onset of neck and lower back symptoms due to the inevitable effects of non-compensable pre-existing conditions, regardless of her employment activities. Historical information suggested that episodes have occurred prior to August 1998, and that general stress likely contributed to the onset of symptoms in the neck shoulders and back as was probably the case in August 1998. Review Office stated that it was not convinced that the claimant's employment in August 1998 increased her risks for an injury to happen. Medical evidence was not found to show that the claimant's pre-existing conditions had been aggravated or made worse due to her regular job activities.

In conclusion, Review Office determined that an accident arising out of and in the course of employment had not likely contributed significantly to the claimant's onset of symptoms in August 1998. The claimant did not qualify for payment of benefits as it was considered her difficulties in August 1998 were due to pre-existing conditions or were in part a reaction to general stress.

The claimant's advocate appealed Review Office's decision in August 1999 and an oral hearing was convened on October 14, 1999. Following discussion of the case, the Appeal Panel requested additional information from the treating chiropractor. A response from the chiropractor was received on January 14, 2000, and the report was forwarded to the interested parties for comment. On February 2, 2000, the Panel met to render its final decision.

Reasons

Chairperson MacNeil and Commissioner Finkel:

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,

2. any

1. event arising out of, and in the course of, employment, or

2. thing that is done and the doing of which arises out of, and in the course of, employment, and

3. an occupational disease

and as a result of which a worker is injured."

The claimant advances a claim contending that she suffered a workplace injury in August 1998, while working at a computer station on behalf of her employer. Her advocate presented argument that the claimant had suffered a similar workplace injury in 1997 with recurrences again in 1998 and that the claimant had not fully recovered from the effects of the previous injury. In the alternative, he suggested that the claimant's injuries were the same as those suffered in 1997.

Upon reviewing the November 1997 injury, we note that the claimant's attending physician records a history of a hurt neck that was thought to be secondary to working at a station with a higher monitor. The physician recorded the following clinical findings: tender bilateral trapezius and full range of motion of the cervical spine. A diagnosis of myositis was rendered. The presence of pre-existing osteoarthritis was also noted. Throughout the history of the 1997 claim, including subsequent recurrences, the claimant's conditions involved the neck and trapezius regions, which were treated successfully by physiotherapy concluding in June 1998. The claimant lost only one day of work during this period of time. As well, ergonomic changes were made to reduce the height of the computer monitor at the claimant's workstation. The claimant's evidence was that she felt "great" before beginning a two-week summer vacation in June 1998.

The claimant's August 1998 report of injury refers to her having to sit at her computer for long periods of time without taking a break, when the workloads were particularly heavy. She described injuries of a sore neck, sore upper left and right arm, and sore left leg. On August 25, 1998, the claimant first attended a chiropractor who recorded clinical findings of decreased range of motion and altered spinal mechanisms at multiple spinal regions with paravertebral right tissue hypertonicity. The treating chiropractor's diagnosis was multiple vertebral subluxations with repetitive injury syndrome. In his letter to the Appeal Commission dated January 13, 2000, the chiropractor advised that the claimant had "described the specific anatomic sites of pain as neck, mid back, lower back, left leg and both arms. The contributing anatomic sites that I found to be involved and related to her pain were the following spinal joints and their related structures: Occiput-C1, C1-C2, C7-D1, D1-D2, D2-D3, D12-L1, the right sacro-iliac joint, and both acromio-clavicular joints." He further went on to say that the 'vertebral subluxations' were at all the noted spinal joint structures. He attributed the claimant's repetitive injury syndrome to several factors: the type of work, the gradual onset of symptoms, the stress of work, the position of work while at a work station, and the absence of other etiological components. Following a series of spinal adjustments, the claimant's condition resolved.

Chiropractic x-ray reports were taken on September 1, 1998 of the claimant's cervical and lumbar spines. The cervical x-ray report confirms the presence of a pre-existing condition in the claimant's spine, in particular: osteophytic lipping above and below the C5 disc space anteriorly; C3 and 4, C4 and 5 reveal minor sclerosing. The lumbar x-ray confirms incomplete sacrilization of L5 (congenital condition) and minimal sclerosing to the sacro-iliac articulations.

The 1998 claim symptomatology, as noted by the chiropractor, is significantly different and far more extensive than that reported or treated in her 1997 claim. We note that the claimant's 1997 injuries were successfully treated by mid-1998. Accordingly, we do not find any causal relationship between the claimant's August 1998 condition and her 1997 compensable injury, as suggested by the claimant's advocate. In addition, it should be recalled that ergonomic changes were made to the claimant's workstation in 1997 to prevent any recurrence of her neck problems. In the present case, unlike the specific workplace problem identified in 1997, the claimant could not provide a specific cause for her injury beyond a heavy workload and the general stress of her job.

We have taken the opportunity to review the claimant's job duties as well as her workload at the time of the reported injury and we find that the claimant's symptoms, though very extensive throughout her spine, do not demonstrate a causal relationship to the specific job duties performed by her. On the contrary, we consider the broad nature of the claimant's symptoms to be more consistent with her pre-existing non-compensable osteoarthritic degenerative changes and other degenerative changes that have been confirmed by radiological evidence.

After having taken into consideration all of the evidence, we find that the claimant's back problems as reported in August 1998 did not, on a balance of probabilities, arise out of and in the course of her employment as a clerk. There has been no accident as defined by the Act, therefore the claim is hereby denied.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller
R. W. MacNeil, Presiding Officer

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of March, 2000

Commissioner's Dissent

Further information from the claimant reveals that her physical problems came on slowly and, in her opinion were the result of a heavy workload which confined her to her desk for 3-4 hours at a time. It was also reported that on occasion she had to sit at workstations other than her own, which also caused problems.

The medical evidence on file clearly indicates that the claimant suffers from degenerative changes in both her lumbar and cervical spine. These conditions do not disqualify the injured worker from receiving benefits. The Workers Compensation board has policy in regard to the adjudication of claims where a compensable injury is affected or affects a pre-existing condition. In this claim the worker was involved in employment which restricted her mobility and extended her work demands. These demands and activities combined with an apparent increase in duties seem to have exacerbated the pre-existing condition to the point where treatment was sought from a chiropractor. The claimant did not lose time from work as a result of these complaints but rather attended the chiropractor prior to her work shifts. The treatments resolved her complaints and since the treatments ended she has not suffered any further problems. She has also moved into a new job which does not restrict movement and at the time of the hearing reports that all is going well. Therefore, on a balance of probabilities the claim is acceptable as an aggravation of the pre-existing condition arising out of and in the course of her employment. It is also noted that the claimant suffered a similar accident in 1997, which was determined to be acceptable. At that time the claimant sought treatment from a Doctor who recorded physical findings. In this claim the claimant sought assistance from a Chiropractor who did not provide any physical findings and this has impacted on the acceptance of the claim.

R. Frisken, Appeal Commissioner