Decision #04/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 28, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 28, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim was acceptable.

Decision: Unanimous

Background

In November 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred while performing his occupational duties as a parts person. The claimant described his injury as follows:
About 4 weeks ago, my lower back became sore. I get parts for customers and for the shop so I am bending and picking parts. I used to work as a heavy equipment mechanic and my back became sore so I took a job in the parts department so it would be easier on my back. I have seen a doctor on an ongoing basis - 2 years ago.
On November 16, 2001, a WCB adjudicator spoke with the claimant concerning his work history and the onset of his back difficulties. The claimant indicated that he had been employed with the company for 5 years. The first 3 years, the claimant worked as a heavy equipment mechanic and for the last 2 years he worked as a parts person, 40 hours per week. His main duties involved stocking shelves with farm equipment parts, setting up displays, helping customers, receiving stock and filling/sending orders. The claimant said he stood throughout his shift and there was a lot of repetitive bending and lifting involved. When he worked as a heavy equipment mechanic, the claimant repaired farm equipment and lifted lots of large parts. He worked on motors and under vehicles. His job entailed lots of twisting, bending and maneuvering in awkward positions.

With respect to the onset of his symptoms, the claimant advised the adjudicator that he had pain in his back about 2 years ago and he did not claim WCB as he didn't know it was work related. Since that time he has had time off work a couple of times due to back problems and has collected benefits through his employee's insurance plan. Those back problems resolved after seeing a doctor and having physiotherapy. About 4 weeks ago, he again noticed that his back was bothering him and that it progressively got worse. He couldn't remember doing anything specific to aggravate his back. His back just got progressively worse to the point were he could no longer work. His last day at work was October 30, 2001.

Medical information consisted of a doctor's first report dated November 14, 2001 (examination date was November 5, 2001). The diagnosis rendered was acute on chronic low back pain. The claimant was also seen by a second physician on November 14, 2001. The diagnosis rendered by this physician was a right sided radiculopathy at L5-S1. The physician commented that the claimant had a pre-existing "known large disc lesion."

A report was received from an orthopaedic surgeon dated May 28, 1999. The surgeon advised that the claimant had spontaneous onset of lower back and radiating left sciatica-like pain about 1 ½ years ago. The claimant gradually improved with treatment but continued to have intermittent lower lumbar back pain with radiation into his hips. It was concluded that the claimant's problems were due to poor shock absorption to the lumbar spine causing mechanical lumbar back pain secondary to lumbar degenerative disc disease. There was no evidence of root entrapment.

On December 20, 2001, a WCB medical advisor reviewed the file evidence which included chart notes from the claimant's treating physician dated October 11, 2000 through to November 26, 2001. The medical advisor opined that the claimant's difficulties were all pre-existing, in the absence of a specific recent injury.

On January 17, 2002, primary adjudication advised the claimant that his claim for compensation was not acceptable. The claimant was informed that because of his significant pre-existing back condition and the absence of a specific injury at work, it was felt that his current time loss was related to his pre-existing condition and not to a work related incident. On April 19, 2002, a worker advisor, acting on the claimant's behalf, appealed this decision to Review Office.

In a decision dated May 10, 2002, Review Office was of the opinion that the available information did not support the contention that the claimant's lower back and leg difficulties were caused by a personal injury by accident arising out of and in the course of his employment. The Review Office stated that conditions that are thought to result from general wear and tear over a period of time do not meet the definition of "accident" under The Workers Compensation Act (the Act).

With respect to the worker advisor's contention that an increased work load in October 2001 resulted in an exacerbation of the claimant's symptoms, Review Office found that the worker's most recent onset of low back and right leg pain clearly predated any such change in his activities at work. Review Office summarized that an accident had not been established and the decision to deny the claimant's appeal was upheld. In September 2002, the worker advisor appealed Review Office's decision and an oral hearing was held.

Reasons

This case involves an appeal by the worker from a decision of the Review Office dated May 10, 2002 whereby the Review Office denied the worker's claim for benefits.

The issue before the Panel on its hearing on November 28, 2002, therefore, was whether the worker's claim was acceptable.

Section 4(1) of 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. It reads as follows:
"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 order to find the claim acceptable, the Panel must also be satisfied that the claimant has sustained an "accident" within the meaning of section 1(1) of the Act. That section defines "accident" as: 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."

Both the claimant and the employer attended the hearing. The employer supported the claimant's appeal. The claimant was ably represented by a worker advisor.

The claimant testified that he began working for the employer in 1997 as a heavy equipment mechanic. His duties as a heavy equipment mechanic involved lots of heavy lifting and bending. Approximately one year after the claimant began working, it was determined that he had degenerative disc disease of the lumbar spine with a spontaneous onset of lower back pain and left sciatic-like pain. This condition caused him to switch his employment duties from working as a heavy equipment mechanic to working in the parts department, still with the same employer.

The claimant testified that even his work in the parts department, however, was physically demanding. For example, it required being on his feet during most of his working hours. It also required a great deal of walking, lifting and bending including lifting heavy parts.
In a report dated May 28, 1999, the claimant's orthopaedic specialist wrote:

"1 ½ years ago he had spontaneous onset of lower back pain and radiating left sciatic-like pain … All this man's problems are the result of poor shock absorption of the lumbar spine causing mechanical lumbar back pain secondary to lumbar degenerative disk disease."
The claimant did not submit a claim to the Workers Compensation Board for the time off associated with the initial 1998 disc injury. He testified that since the initial disc injury and time off associated with that incident, he had had periods of time where he had been basically pain free and fully functional. At the outset of the hearing, the claimant's representative indicated that the claimant was asking the Panel today to rule on whether or not the claimant is entitled to compensation benefits for the exacerbation or aggravation of his known disc injury.

The claimant's injury which is the subject of this appeal, occurred during the fall harvest season of 2001. The claimant testified that generally the harvest season was a very busy one during which he would work from 7:30 in the morning until sometimes 10:00 at night, often seven days a week. He went on to say that the year of the injury was a particularly busy fall due to weather conditions. Further, the claimant testified that while there were usually three people staffing the parts department, of which he was one, in the last week before he ceased work due to his injury, there were two days when the other two individuals with whom he worked, were absent. This significantly increased the claimant's work demands. He testified that for probably one month before he ceased working the pain in his back was getting progressively worse, going from a dull ache, to pain where he could not stand up or even walk and he found that for the two days where he was required to work alone in the department, the pain worsened. He described it as an "overload" situation where he was working from 7:30 in the morning until 5:30 at night, constantly moving, walking around and getting parts.

The claimant testified that when he switched to working in the parts department he generally took care not to exceed his self-imposed limitations with respect to lifting heavy objects. He said that he usually tried to ask for help if he needed it but on the two days when his co-workers from the parts department were absent, he was required to do more work than he was physically capable of doing. He told the Panel: "that was about the worst point of my back being sore was when they were gone".

The worker advisor, in her submission, put forward the position that "the thing that was done" referring, obviously, to the definition of "accident" within the meaning of section 1(1) of the Act, was the additional workload caused by a busy season, combined with the fact that the claimant staffed the parts department by himself on two days just prior to his ceasing work. This, in her submission, caused injury to the claimant, by way of an aggravation of the pre-existing disc condition. She cited Board Policy 44.10.20.10 entitled "Pre-Existing Conditions" which defines an "aggravation" as,
"the temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state, unaffected by the compensable accident".
She pointed out that the policy also clarifies that
"where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between, The Worker's Compensation Board will accept responsibility for the full injurious result of the accident".
It was her submission that in all probability the claimant's claim for loss of earning capacity for the period October 31, 2001 to January 2, 2002 was causally related to his work duties because the increased physical demands of his job temporarily aggravated his pre-existing back condition.

The Panel agrees. We find that the claimant's pre-existing back condition was aggravated by the fact that he was required to do the job of three people in what was, in any event, a heavy time period in terms of workload.

In light of the evidence adduced at the hearing we find, therefore, that the claimant did on a balance of probabilities sustain a personal injury by accident arising out of and in the course of his employment, in accordance with the meaning of section 4(1) of the Act. We therefore find the claim to be acceptable.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of January, 2003

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