The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 11, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 11, 2001.

Issue

Whether or not further responsibility should be assumed for the worker's back problems in relation to the compensable injuries of April 4, 1963, July 29, 1969 or July 6, 1977.

Decision

That further responsibility should not be assumed for the worker's back problems in relation to the compensable injuries of April 4, 1963, July 29, 1969 or July 6, 1977.

Decision: Unanimous

Background

While pushing a car out to station on April 4, 1963, the claimant slipped on a rail and fell onto his lower back. Following the incident, the claimant was hospitalized for three days and was diagnosed with a vertical abrasion of the left buttock and tenderness over the sacrum. X-rays of the lumbar spine dated April 4, 1963 revealed no fracture or other evidence of a recent injury. On April 15, 1963 the attending physician noted that the claimant returned to light duties. In subsequent file correspondence it was noted that the claimant was on light duties for two months before returning back to his regular work duties.

The file also contains x-ray reports pertaining to the claimant's lumbosacral spine dated September 17, 1974 and December 2, 1976. The report of September 17, 1974 stated that there was a roto scoliosis of the lumbar spine with loss of the usual lordosis which was not explained on the basis of any anomaly nor of any disease of the bones or intervertebral discs. The report of December 2, 1976 noted lumbar roto-scoliosis convex to the right and slight intervertebral disc space narrowing. There was slight osteoarthritic lipping at the L4-5 and L5-S1 levels on the right side.

On July 29, 1969, the claimant was moving timber to install the gateway for a chute when he wrenched his back and was unable to straighten up. On August 19, 1969, the attending physician noted tenderness in the lumbosacral area along with paravertebral muscle spasm. A chiropractor's first report dated December 8, 1969, noted that the claimant had acute pain throughout the lumbar region and in both sacroiliacs. Neuritic pain was found in both legs and in the lateral and antero-lateral portion of the thighs and posteriorly in the leg. Mobility was greatly reduced.

In a decision dated April 23, 1970, the WCB's Review Committee determined that the 1969 claim was not acceptable as it could not be established that personal injury by accident arose out of and in the course of the employment.

On July 6, 1977, the claimant was replacing chains on a truck when he missed the step of the truck and fell to the ground injuring his back. On July 6, 1977 the attending chiropractor noted pain on flexion and left lateral flexion of the lumbar spine along with tenderness over the left sacroiliac joint. The diagnosis was a left sacroiliac sprain. X-rays of the lumbosacral spine dated August 19, 1977 noted a scoliosis to the right in the upper lumbar spine. The claim was accepted by the WCB and the claimant received total temporary disability benefits.

A rehabilitation medicine specialist assessed the claimant on October 5, 1977. The specialist noted that the claimant had lumbosacral musculoligamentous strain and there was no evidence of nerve root involvement.

On November 15, 1977 the claimant was assessed at a WCB clinic at the Rehabilitation Centre with complaints of pain across the lumbosacral area, more particularly on the right. The claimant indicated that the feeling went down to his right toes. He also complained of pain at T12. Following examination, the chief medical officer reported no evidence of sciatic involvement. He stated that the claimant may have some stiff muscles and this would be due to his poor physical condition and posture. He noted that the claimant was exaggerating to some extent as indicated by the straight leg raising and Burns' tests. The claimant was advised to continue with physiotherapy and that he could return to work in one week. On November 18, 1977, the claimant was advised by the WCB that he was considered to be recovered from the effects of the accident insofar as total disability was concerned and that full disability benefits would be paid to November 25, 1977 inclusive.

In January, February and March 1978, the claimant was seen by a physician who stated that the claimant was in good health and that it was possible that he had a degenerative disc lesion in his back, however, there was no physical evidence of this.

File documentation revealed that the claimant injured his back in Timmins, Ontario in December of 1978 while lifting a gallon jug of oil. Subsequent review of the case by the WCB's medical department indicated that this accident was not considered related to his previous three claims with the Manitoba WCB.

On September 22, 1980 an orthopedic surgeon stated that the claimant gave a good history of chronic and recurrent back problems. X-rays of the lumbar spine taken on September 22nd showed an obvious rotoscoliosis of the upper lumbar spine, convex to the right, marked straightening of the normal lumbar lordotic curvature suggesting muscle spasm, disc space narrowing with associated degenerative changes at 4-5 and to a lesser extent 3-4, the remainder of the disc spaces being well preserved. The surgeon stated that the claimant had evidence of a chronic back problem related to injury and subsequent degeneration.

On June 24, 1981, the case was referred to a Medical Review Panel (MRP) as the claimant contended that his current back difficulties were related to the 1963 compensable accident. The MRP was of the unanimous opinion that the claimant's present disability could not be stemmed from his first accident that occurred on April 4, 1963 and that whatever permanent disability he had was more likely due to chronic degenerative changes in his spine secondary to scoliosis.

A report was received from the claimant's orthopaedic surgeon dated September 25, 1981. The surgeon stated, in part, "one cannot prove that this man's original injury is the sole cause of his ongoing back problem. However, it is of my opinion that this is a likely event and it is made more so be (sic) his injury of (sic) further injury, of being a reasonable workman and in view of the fact that his other joints are not suffering from an arthritic process."

On November 9, 1981, the claimant was informed by the WCB's Review Committee that no further responsibility could be assumed for his back problems as there was no disability due to the effects of the injuries he incurred in Manitoba.

In February 2001, a solicitor acting on behalf of the claimant appealed the above decision to the Appeal Commission. The solicitor argued there was a clear relationship by way of an aggravation between the claimant's current condition and the accidents that he sustained in Manitoba (i.e. 1963, 1969 and 1977). An oral hearing was arranged via teleconference for June 11, 2001.

Reasons

This is the case of a worker who incurred injuries to his back in the sixties and seventies. Two of those injuries - in 1963 and 1977 - were accepted as compensable by the Manitoba Workers' Compensation Board; one - in 1969 - was not. He is of the view that his continuing back problems are a result of those injuries.

The specific issue before the Commission was whether or not the WCB should assume further responsibility for his back problem in relation to the compensable injuries of April 4, 1963, July 29, 1969 or July 6, 1977.

In November 1981, the Review Committee of the board considered the claimant's request for reconsideration and determined that no further responsibility can be assumed "as there is no disability due to the effects of the injuries you incurred in Manitoba." It is from that decision that the claimant appealed to this commission.

For the appeal to succeed the panel would have to determine that the claimant's current back problems are - on a balance of probabilities - causally related to at least one of his compensable injuries in Manitoba, either the April 1963 or the July 1977 accident. We were not able to make that determination.

We note from the file that, in addition to the three incidents, noted above, the claimant had at least two other injuries to his back - one in 1974 while self-employed and not covered by compensation and another in 1978, while residing in Ontario and employed by an Ontario firm.

By early 1981, it became clear that there was a distinct difference of opinion between physicians attending the claimant and board medical advisors as to the cause of the claimant's ongoing back problems. As a result, the claimant was referred for examination by a Medical Review Panel.

After examination, the panel concluded:

"It is the unanimous opinion of the Panel that [the Claimant's] present disability cannot be considered to stem from the first accident that occurred on April 4, 1963 and that whatever permanent disability he has due to his back condition, is more likely to be due to chronic degenerative changes in his spine secondary to scoliosis."

(We should note that while specific reference is made to the 1963 accident, the panel also considered the 1977 injury. From the file, it is evident that the claimant has, all along, viewed the 1963 accident as the genesis of his back problems.)

The claimant had, earlier, been diagnosed as having roto-scoliosis in his lumbar spine, which condition we note is generally developmental in origin. The Medical Review Panel observed that his lumbar scoliosis was "considered to be of longstanding and very likely idiopathic in origin."

As no substantive medical evidence to the contrary was presented to this appeal panel, we have accepted this conclusion of the Medical Review Panel.

Counsel for the claimant asked us to refute this conclusion and, instead, to consider the definition of "causation" as set down by the Supreme Court of Canada in Snell v. Farrell, a 1990 decision of that court.

In quoting from the headnote to the case, counsel argued that Snell v. Farrell stands for the premise that "Causation need not be determined with scientific precision" and "It is therefore not essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation."

Counsel argued that, by following this case, the panel could come to a conclusion that the claimant's problems are related to his compensable injuries, even though the preponderance of medical evidence does not support this.

He further argued that:

". we are trying to obtain from a worker the impossible and trying to give him the burden of proving, to scientific certainty, that the problem he has arises from the trauma in question.

I think causation shouldn't be looked at in the scientific sense of the word in a setting where we are dealing with civil cases ."

We note that Snell v. Farrell involved negligence, in particular medical malpractice, wherein the evidence required to prove negligence most often rests in the knowledge of the defendant, making it very difficult for the plaintiff to prove negligence. The court allowed that, in certain circumstances, "an inference of causation may be drawn although positive or scientific proof of causation has not been adduced."

In Snell v. Farrell, and the precedent cases, the courts found that the defendant created a situation within which an accident happened to the plaintiff. That was not at all the case here. The issue of 'causation', in this case, is whether or not the claimant's current back problems are linked to compensable accidents which occurred in the sixties and seventies.

We believe that Snell v. Farrell stands for different legal concepts than those before this panel. Here, the claimant was not expected to prove causation. We were not dealing with negligence. We were not dealing in an adversarial manner, as in the courts. Our procedure is based on an inquiry model.

As to the standard of proof, we do not require "positive or scientific proof". We accept the civil standard of a "balance of probabilities." We would note that, in this case, there was never "positive" proof on either side of the issue of the cause of the claimant's medical problems. Indeed, at an earlier adjudicative stage, there was a definite conflict in the opinions of WCB medical advisors and the claimant's own attending physicians. As allowed by the statute in such cases, this led to a review by a Medical Review Panel, as noted above.

In conclusion, we have determined that the preponderance of evidence does not support the claimant's contention that his current and ongoing back problems are causally-related his injuries of April 4, 1963, July 29, 1969 or July 6, 1977. Therefore, the Workers Compensation Board of Manitoba should not assume any further responsibility.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of July, 2001