Decision #72/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 10, 2001, at the claimant's request. The Panel discussed this appeal on several occasions, the last one being June 11, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On January 22, 1998, the claimant filed an application for compensation benefits at the advice of his physician for back complaints. In a signed statement dated April 6, 1998, the claimant provided the following information to the Workers Compensation Board (WCB):
  • the three areas that were causing him problems were his shoulder blades, the base of his rib cage in the middle and the base of his spine/hip bone in the middle.

  • several physicians were seen for treatment. One doctor prescribed medication but the pills caused certain complications. A second doctor referred the claimant for physiotherapy treatment and ordered x-rays. The claimant was then referred to a specialist who told him there wasn't anything he could do for him and that he would have to live with his discomfort. In the fall of 1997, the claimant was treated by a chiropractor 7 or 8 times.

  • for 6 to 7 years, the claimant said he worked for a feedlot cleaning business. Duties included driving a 100 horsepower John Deere tractor which pulled a manure spreader behind it. The claimant did manual forking and repairs to the tractor. He also lifted rocks out of the spreader. The claimant said it was seasonal employment and he usually worked from April to just after freeze up.

  • near the end of the 1995 fall season, the claimant said he first noticed his lower back getting sore and that the pain lasted about one week. Every once in a while throughout the winter, his legs "would go funny". When lying on his back, both legs would go numb from the hips down. The claimant said he went back to work in the spring of 1996 and after a couple of weeks the pain in his low back came back. He also started to incur pain between the shoulder blades and at the base of his ribs. It finally got to the point that he went to see a doctor around July 1996. The claimant said he worked to the end of the 1996 season so he could qualify for UIC, but his back was very sore.

  • there was never a specific accident and the only hobby he did was light carpentry work. The claimant said he did not file for WCB because he did not know how to go about it. He thought that his boss would file the paperwork. The claimant received UIC until March 1997 and had been on municipal assistance since then. The claimant said the doctor he is seeing right now told him not to do any bending, lifting or pulling. The claimant believed that too much bouncing around on the tractor caused his injury.
Medical reports on file showed that the claimant sought medical treatment on November 4, 1997 complaining of low back pain for two years. A second physician saw the claimant in February 1998 and the claimant gave a history of a gradual onset of pain starting in 1995 at the L5 level from lifting and bouncing around in a truck. The diagnosis rendered was mechanical back pain.

On April 15, 1998, the claimant was advised by primary adjudication that his claim for compensation was not acceptable. It was the opinion of Claims Services that there was insufficient evidence that an accident occurred at work. On December 20, 1999, the claimant appealed the decision to Review Office.

Prior to considering the appeal, Review Office wrote to the attending physician on February 3, 2000, requesting additional medical information pertaining to the claimant's back complaints. A response to this request was received dated February 11, 2000, which included reports from a consultant in physical medicine dated June 6, 1997, August 28, 1997, October 17, 1997 and December 11, 1997.

In a decision dated January 7, 2000, Review Office confirmed that the claim was not acceptable. Review Office found there was insufficient evidence to establish a relationship between the claimant's persistent, wide ranging back complaints and his employment as a tractor driver. On July 10, 2001, the claimant appealed Review Office's decision and an oral hearing was held on October 10, 2001.

Following the October 10th hearing, the Panel met to discuss the case. At that time the Panel requested additional medical information from the treating physician. On October 24, 2001, the claimant was provided with copies of the medical information that was obtained from the treating physician and he was asked to provide comment.

In November 2001, the Panel met again to discuss the case. At this time it was noted that the claimant had an upcoming appointment at the Pain Clinic. A copy of the Pain Clinic's report dated January 21, 2002 was forwarded to the claimant for comment.

On February 12, 2002, the Panel decided to arrange for the claimant to be assessed by an independent physical medicine and rehabilitation specialist prior to rendering a decision on the issue under appeal. The claimant was then assessed on May 13, 2002 and the examination report dated May 15, 2002, was forwarded to the claimant for comment. On June 11, 2002, the Panel met to render its final decision on the issue under appeal.

Reasons

This case involves a worker who has suffered from back problems for a number of years. He was employed for six to seven years by a firm engaged in cleaning feedlots. Among his duties was driving a farm tractor. He feels that the constant bouncing on the tractor caused his back problems.

As noted in the Background section, he first noticed back pains in the fall of 1995. He first saw a doctor about his concerns in July 1996. It was not until January 1998 that he filed a claim for compensation. This application was denied. A request for reconsideration by Review Office upheld the initial decision. He then appealed to this Commission.

The issue before the Panel was whether or not the claim is acceptable.

For his appeal to be successful, the Panel would have to determine - at least, on a balance of probabilities - that his back problems are causally related to his employment. We were not able to make that determination.

In coming to our decision, we made a careful review of the claim file, as well as conducting an oral hearing at which the claimant was able to provide testimony in support of his case. Subsequent to the hearing, we requested further medical information. Ultimately, we referred him to a physical medical specialist for an independent medical examination (IME).

This was a very difficult case to adjudicate. This was due, in part, to the fact that while the claimant was obviously in much pain, there was little support that we could give him. We were simply unable to find that a workplace accident had occurred within the meaning of The Workers Compensation Act (the Act). Subsection 4(1) of the Act provides for the payment of compensation where "personal injury by accident arising out of and in the course of the employment is caused to a worker."

We note the following comments from his medical treatment:
  • July 1996 - x-ray - "Slight scoliosis. No abnormality seen."

  • November 1996 - x-ray - No significant bone lesion seen, and no significant change since July 1996."

  • June 1997 - consultant in physical medicine - "Working diagnosis at the moment is mechanical back pain, perhaps segmental in origin. I am somewhat concerned because of weight loss, that we may be missing another underlying pathology."

  • August 1997 - same specialist - "Back pain of unclear cause."

  • December 1997 - same specialist - "Mechanical low back pain. Exact etiology is unclear."

  • August 1999 - x-ray - "No abnormality seen."
After the hearing, we learned that he had an appointment at the Pain Clinic at the Health Sciences Centre. We delayed our consideration until we received a report of that examination. Although the attending physician prescribed a course of treatment, there was nothing that helped resolve the issue before us. It was at this point that we referred the claimant for an IME.

We found the report of the independent medical examination to be very comprehensive and, as a result, helpful in resolving the issue before us.

We note that the examining physician made four separate diagnoses, none of which was specifically a back problem. Of the four, only one was germane to our consideration: "chronic pain disorder with a general medical condition." The doctor elaborates:
    "A chronic pain disorder implies a condition where pain is the essential clinical presentation either in the absence of physical findings or out of proportion to those that exist. The association with a general medical condition in this case refers to the probability that the claimant has mechanical low back complaint that is either still present or that has subsequently resolved. The pain symptoms appear to have taken on a life of their own ."
The doctor also addresses the question of causation:
    "The alleged cause of the claimant's condition is prolonged and repetitive exposure to heavy work and vibration or bouncing on a tractor. The alleged effect is mechanical low back pain. While it is possible that prolonged exposure to heavy work could lead to low back pain, there are inconsistencies in the history including the absence of a specific initiating event or improvement when the initiating events are removed. In addition, the temporal relationship is unclear as it is uncertain why after six years performing similar duties, that the claimant suddenly began to deteriorate, never to recover when the offending event has been removed."
We have found this evidence of the independent medical examiner to be very persuasive. When considered along with the other lack of conclusive medical evidence, we find that - on a balance of probabilities - there is no causal link between the claimant's work as a tractor driver/farm labourer and his back condition.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of June, 2002

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