Decision #39/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 13, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 13, 2003.

Issue

Whether or not the claimant's time loss from work commencing July 30, 2001 is related to the compensable accident of July 26, 2001.

Decision

That the claimant's time loss from work commencing July 30, 2001, is related to the compensable accident of July 26, 2001.

Decision: Unanimous

Background

In September 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred on July 26, 2001. The claimant described his accident as follows:
"I was investigating an accident at [name], I was climbing over some equipment I climbed up on the back of the truck to take some measurements, when I was coming down the ladder I stretched my right foot down on the next rung, my back when (sic) into spasm. My left leg was compromised, due to my back pain, I also had pain across the back of my pelvis, right groin, and up the left side of my back."
A report was received from a hospital emergency facility dated July 30, 2001. The diagnosis rendered was a musculoligamentous back strain versus sciatica. A Doctor's First Report dated August 10, 2001, diagnosed the claimant with an L-spine strain and medication was prescribed.

A CT scan of the lumbar spine dated March 9, 1999 revealed annular disc prominence at L3-L4. No focal disc protrusion, nerve root compression or significant spinal stenosis was identified. The L4-L5 level showed a posterior ridge osteophyte which approaches the thecal sac. No nerve root compression, disc protrusion or spinal stenosis was identified. There was degenerative disc narrowing and end plate spurring at the L5-S1 level. A posterior ridge osteophyte contacts and mildly compresses the right S1 root. No focal disc protrusion or spinal stenosis was identified.

In a memo to file dated September 27, 2001, a WCB adjudicator noted that the claimant did not seek medical treatment immediately after the accident as he thought his back would get better, but the pain progressively became worse. In further memos dated September 25, 2001 and October 9, 2001, the adjudicator recorded information that she obtained from the claimant concerning the reporting of the accident and information about his prior back difficulties.

On September 26, 2001, the adjudicator spoke with the employer representative, who advised that the claimant did not mention anything about a specific accident happening to his back on July 26, 2001. The employer indicated that the claimant has been off work in the past due to his back problems.

In a decision dated October 15, 2001, primary adjudication denied the claim. It was unable to establish that a work related injury occurred on July 26, 2001, as the claimant had delayed in reporting his injury to the employer and in seeking medical attention.

On December 19, 2001, primary adjudication wrote to the claimant again advising that a WCB healthcare consultant had reviewed his case. It was the medical advisor's opinion that the medical findings found in the July 30, 2001 hospital report were not related to the work accident. The claimant had a pre-existing back condition and was already taking medication for this at the time of his July 26, 2001 accident. The adjudicator therefore confirmed that she was unable to establish that the events of July 26, 2001 were related to the claimant's back condition.

In a submission to Review Office dated April 15, 2002, a worker advisor presented argument that an accident as defined by The Workers Compensation Act (the Act) did occur on July 26, 2001 and that it resulted in further injury to a pre-existing condition. "The aggravation that occurred to Mr. [the claimant's] pre-existing back condition by Board policy #44.10.20.10 is an acceptable compensable consequence." The worker advisor therefore asked Review Office to rule in the favor of the claimant and to accept his claim for the workplace injury that occurred on July 26, 2001.

On June 21, 2002, Review Office determined that the accident on July 26, 2001 was acceptable and that the worker's time loss commencing July 30, 2001, however, was not related to the accident of July 26, 2001. Review Office found that on a balance of probabilities, that the worker likely sustained an accident, which arose out of and in the course of his employment on July 26, 2001.

With respect to the claimant's eligibility for wage loss benefits, Review Office considered the claim in context with the WCB's policy on pre-existing conditions (44.10.20.10). Review Office concluded that the weight of evidence supported the contention that the claimant's back problems and time loss on July 30, 2001 would be accounted for, on the basis of his pre-existing back condition, and not the incident that occurred on July 26, 2001. Review Office was of the opinion that the claimant's ongoing difficulties were due to his pre-existing condition, and that there was no evidence to support the workplace incident was contributing, to a material degree, to his loss of earning capacity, or that his pre-existing condition had been enhanced as a result of the July 26, 2001 accident.

On September 11, 2002, the worker advisor submitted a report to Review Office authored by the family physician on August 1, 2002. The worker advisor noted the physician confirmed that the claimant had been reasonably free of back pain and back problems from August 1999 to July 26, 2001. The worker advisor therefore believed that the claimant's workplace accident did, in part, contribute to his time loss from work.

In a further decision dated October 25, 2002, Review Office concluded that the worker's time loss commencing July 30, 2001 was not related to the accident of July 26, 2001. In rendering its decision, Review Office considered the information that the claimant had provided to his WCB adjudicator concerning his previous back difficulties, the mechanics of the accident on July 26, 2001 and the medical information received from the health care center where the claimant had initially been treated. Review Office noted that it was the opinion of a WCB orthopaedic consultant that there was historical evidence to suggest the worker was experiencing low back symptoms prior to the incident of July 26, 2001 and the episode on the ladder was merely an aggravation of his already pre-existing symptoms. The consultant was also of the opinion that the incident of July 26, 2001 did not contribute to a material degree to the worker's back problems on July 30th and his subsequent inability to work. It was therefore the opinion of Review Office, that the weight of evidence did not establish the claimant's time loss from July 30, 2001 was related to the incident at work on July 26, 2001, hence the request for wage loss benefits was denied. On December 16, 2002, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The evidence confirms that the claimant had a pre-existing back condition (multi level degenerative disc disease) prior to his July 26th, 2001 work incident. In particular, a CT scan of his lumbar spine on March 9, 1999 revealed: "At L5-S1, there is degenerative disc narrowing and end plate spurring. A posterior ridge osteophyte contacts and mildly compresses the right S1 root." A WCB medical advisor concludes in a memorandum dated June 18th, 2002 that the claimant's "episode on the ladder was merely an acute exacerbation of his already pre-existing symptoms."

The claimant testified at the hearing that his back problems worsened immediately following the July 26th, 2001 incident and that it became necessary to conduct his investigative interviews while lying down. He further testified that he attended at a hospital for treatment of his back difficulties within days of the incident before eventually being examined by his treating physician.

We find based on the weight of evidence that the claimant did, on a balance of probabilities, sustain an aggravation of his pre-existing condition as a consequence of his work-related incident. Additionally, we also find that this aggravation continued until such time as he was able to return to modified work duties on October 22nd, 2001. It necessarily follows, therefore, that the claimant's time loss from work commencing July 30, 2001 is related to the compensable accident of July 26th, 2001. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of April, 2003

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