The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 26, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on February 26, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In April 2001, the claimant submitted an application for compensation benefits to the Workers Compensation Board (WCB) for a lower back injury that he related to his job duties as a painter on January 15, 2001. On his application for benefits, the claimant stated the following: "Normal work, but more intense and longer hours than normal. Also, I believe my height (5'0") was a contributing factor, i.e. more stretching and reaching than usual."

The Employer's Report for this claim dated March 25, 2001 stated the following: "On Jan. 10^th [claimant's name] was not at work. He returned to work on Jan. 12. I was not aware that he had injured his back at work."

A Doctor’s First Report dated March 20, 2001, showed that the claimant sought treatment on February 20, 2001 and was diagnosed with lumbago and/or a herniated lumbar disc. Treatment included physiotherapy and medication.

In a June 5, 2001 report, an orthopedic surgeon noted that the claimant underwent a CT scan on March 14, 2001. He noted evidence of a right L4-5 disc herniation with further tracking distally. He presumed that the disc herniation was coming from L4/5 and L5/S1 on the right. The orthopaedic surgeon indicated that the claimant wanted to proceed with a right L4/5 decompression and discectomy.

Between May 30, 2001 and June 26, 2001, primary adjudication gathered additional information from the claimant and his employer surrounding the reporting of the accident and details regarding the claimant's job duties. One of the claimant's co-worker was also contacted to obtain his knowledge about an accident and whether or not the claimant complained about his back.

On June 28, 2001, a WCB adjudicator confirmed to the claimant that his claim for compensation had been denied. Based on the information on file, including the failure to report the injury to his employer and the delay in seeking medical attention, the adjudicator felt there was insufficient evidence to support a relationship between the claimant's job duties and his lower back difficulties.

In a letter dated October 17, 2001, a solicitor, acting on the claimant's behalf, submitted medical information dated August 22, 2001 and September 26, 2001 to the adjudicator for consideration. The solicitor indicated that these reports expressed the view that the claimant's present difficulties were related to the physical activity that he was involved in during heavy manual labour.

On October 22, 2001, the WCB adjudicator advised the solicitor that the additional medical information failed to establish a diagnosis or medical treatment until February 20, 2001 which was five weeks after the alleged January 14, 2001 incident. In view of this finding, the previous decision to deny the claim would remain unchanged. On November 28, 2001, the solicitor appealed this decision to Review Office.

In a decision dated December 21, 2001, Review Office outlined its opinion that it had not been established that the claimant's injury was related to his employment as a painter. There were reported inconsistencies regarding when the claimant's symptoms began; there was no incident to cause the injury; and it could not accept that a disc protrusion could occur in an otherwise healthy spine without a significant precipitating event. Review Office therefore confirmed primary adjudication's decision that the claim was not acceptable. On September 18, 2002, the solicitor appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a painter who, while employed as a painter, suffered an injury to his lower back, specifically a herniated disc. His claim for compensation was denied, as it was determined that the injury was not causally related to his work. On reconsideration, the Review Office upheld this decision. He then appealed to this Commission.

For his appeal to be successful, the Panel would have to determine that his herniated disc was caused by his workplace activities. We did make that determination.

In coming to our decision, the panelists made a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony from the claimant and the accident employer and argument from legal counsel representing the claimant. We also heard testimony from two of the claimant's treating physicians who appeared at the hearing on his behalf.

Our conclusion was based, in part, on the following findings:

The claimant's family physician appeared as a witness and testified to the following:

• He had treated the claimant for about five years prior to the workplace accident that is the subject of this claim.
  
  
• In April 2000, he had treated the claimant for back problems which arose from a workplace accident on March 24. This was diagnosed as lumbago, on the basis of back sprain superimposed on degenerative disc disease.
  
  
  • This was the result of a workplace accident and was accepted as a compensable claim.
    
    
  • There was no evidence of disc herniation; no radicular pain.
    
    
  • He was sufficiently recovered to resume usual duties by May 19, 2000.


• The family physician further testified that he treated the claimant in February 2001 for back problems related to his work in January 2001. Subsequent to a CT scan, he diagnosed the problem as a herniated disc at L4/L5, which was impinging on the L5 nerve root, and possibly the S1 nerve root.
  
  
• He referred the claimant to an orthopaedic surgeon.
  
  
• The family physician testified that, in his opinion, the claimant's employment can't be ruled out as a cause of his injury: "It could be considered to have contributed significantly to an injury such as he suffered."

The orthopaedic surgeon appeared as a witness and testified to the following:

• He had performed surgery on the claimant's back and confirmed the above diagnosis.
  
  
• He noted that, while disc herniation can be caused by sudden stress, it is more likely to result from "a bunch of activities that accumulate and then one day the weakened disc finally bulges or ruptures."
  
  
• The claimant's "activities that led up to him stopping work in January would be consistent with the work provoking his disc to ultimately rupture and cause his sciatica."
  
  
• In respect to the specific type of work done by the claimant, he testified that: "Anything torquing away is much more stressful. It all adds stress to that part, but there's much more stress if you're doing it up and away from your body…."
  
  
• He also expressed the opinion that the claimant will have a lifelong restriction against returning to the type of work he did prior to his accident.

There was some discussion as to whether or not the claimant had reported the accident to his employer. His claim was not filed until 2 1/2 months after he left the job site. The employer testified before us that the claimant had not reported his back problems.

However, we note that in telephone conversation with the adjudicator, on June 21, 2001, the employer said he seemed to recall that the claimant complained of a sore back in December 2000 and that he thought the claimant had a sore back when he returned to work on January 12. And, he confirmed that he complained of a sore back while working in January.

In another conversation with the adjudicator, on June 26, 2001 he recalled that the claimant complained about his back periodically, even prior to Christmas, but there was no specific injury.

On June 26, the adjudicator also talked to a co-worker who confirmed that the claimant did complain about a sore back, although the co-worker couldn't remember if this had been before or after Christmas. He also recalled the claimant stretching his arms above his head and, on at least one occasion, lying down on the floor, in an attempt to relieve his back pain.

We are of the view that, while the claimant may not have filed an official report of his injury, he did take sufficient steps to make the employer aware of his back problems.

We are also of the view that the claimant's back injury did arise out of and in the course of his employment. We base this decision, in large part, on the evidence provided by the two attending physicians, and our review of the claimant's job duties which are consistent with the types of stressors described by the physicians.

We note that the claimant did not have a healthy spine when he returned to work in January 2001. He had findings of degenerative disc disease as early as 1997, although none was reported at L4/L5. We also note that, according to the orthopaedic surgeon, degenerative disc disease does not necessarily make one susceptible to disc herniation.

Furthermore, the claimant had a compensable injury to his lower back in the year prior to this latest injury. When he returned to work from that accident, he continued, over the summer and fall, to do physical work, including overhead work which involved twisting his body from side to side. By December, he was experiencing back pains. These pains became worse after his return to work in January.

We accept the evidence of the orthopaedic surgeon that disc herniation is most commonly caused by an accumulation of stresses.

This leads us to the conclusion that - on a balance of probabilities - the claimant's back injury in January 2001 was causally related to his employment.

Accordingly, the appeal is 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 27th day of March, 2003