The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held by teleconference on March 28, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 28, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In June 2002, the claimant submitted an application for compensation benefits for soreness in his left hip and leg that he related to his employment activities as a truck driver on May 18, 2002.

The employer's report of injury for this accident indicated that the claimant experienced left hip pain, which spread down his leg and into his back. Sitting or standing for long periods of time aggravated the pain.

A Chiropractor's First Report showed that the claimant was seen for treatment on April 25, 2002 and was diagnosed with an acute lumbar disc syndrome. The chiropractor noted that the claimant was totally disabled.

On June 20, 2002, a Workers Compensation Board (WCB) adjudicator contacted the claimant to discuss the claim. The claimant advised the adjudicator that his job as a driver entailed loading and unloading and that his trips varied from 15 to 31 hours. The claimant indicated that the roads were rough and that he completed a 31 hour trip, back to back, with a 2 day break. He could not recall any specific triggering events which led to his back pain.

On June 21, 2002, the employer advised a WCB adjudicator that the claimant had worked for the company for approximately three years. The claimant did two trips per week, each ranging from 15 to 31 hours. With respect to extra-curricular activities, the employer was only aware that the claimant did welding and mechanics at home to his own vehicles. The employer stated it had no serious concerns over the claim.

In a decision dated June 21, 2002, primary adjudication informed the claimant that his claim was not acceptable as it was unable to establish a causal relationship between his work duties and his left hip pain. This decision was based on the following factors, "the lack of change in your job duties, which may have triggered the symptoms, the delay in reporting your symptoms and the delay in medical attention." On July 2, 2002, the claimant appealed this decision to Review Office.

On July 19, 2002, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the claimant blamed his condition on the general nature of his truck driving employment, which he had illustrated in his letter of appeal. According to Review Office, the job description provided by the claimant was speculative in terms of trying to determine how the claimant developed his back condition. Review Office further stated the following, "It may be from time to time the worker has been pushed aside by a pig or he may have slipped on stairs, etc. The worker has not established that any of these activities led to his back problem. Given the available information, Review Office is unable to find that the worker has sustained a personal injury by an accident as required by the Act and therefore we do not find his claim to be an acceptable one."

On September 5, 2002, a worker advisor representing the claimant, submitted a chiropractic report dated August 28, 2002, which supported a cause and effect relationship between the claimant's left back, hip and leg condition and his regular duties as a long distance truck driver.

Prior to considering the case, Review Office requested and received a report from the claimant's general practitioner in connection with the claimant's back injury along with a CT scan report. The CT revealed that the claimant had a large central and left sided disc protrusion at the L5-S1 level that was compressing the left S1 nerve root. The physician noted that the claimant was seen on July 9, 2002 with a history of left hip and leg pain over the previous several months. The initial diagnosis was a lumbar strain with a sciatic component and after the CT scan the diagnosis changed to that of a large central left-sided disc protrusion.

On November 22, 2002, Review Office upheld its previous decision that the claim for compensation was not acceptable. Review Office stated, in part, that the claimant had been extremely speculative in his description of what he did and what he felt caused his back problem. Review Office did not doubt that the claimant worked in bent over postures and from time to time he had slipped and had been brushed aside by the live stock. If this was the cause of his back condition, then Review Office expected that a more acute onset would have been described. Since this did not happen, Review Office came to the conclusion that the insidious onset of back pain could not specifically be attributed to the claimant's work duties. On January 16, 2003, the worker advisor disagreed with Review Office's decision and an oral hearing took place by teleconference on March 28, 2003.

Reasons

Section 4(1) of The Workers Compensation Act (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.

 "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 keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined 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."

During the teleconference hearing, the claimant described his overall job duties in great detail.

Q. Mr. [name of claimant], what type of work were you doing at the time of your May 18, 2002 injury?

A. I was - - my main duties were loading, unloading livestock, driving long distances to unload, type thing, at your destination, what ever.

Q. And could you be a little bit more specific about your work duties? Just give the panel more of a visualization of the type of work you were doing?

A. Okay. Well, when you first start off on your trip, type thing, you get your truck and trailer together and you back up to your chute. You start loading your animals. The trailers were triple deck trailers, type thing, three levels on them. And now you’d have to - - you’d bring your pigs up or your cattle, so you’d have to, you know, put them in compartments. You’d be chasing them into the trailer and get behind them, close them in there. They were gated off, each section, type thing. And that would be - - the whole trailer would be like that. You’d have to, you know, sometimes you’d have to get out of the way because some of the pigs, you’re dealing with pigs that are ranging from 250 pounds to 900 pounds. And some of them weren’t - - some of them are terrible, type thing, to work with. You know, they want to chase you or - - they don’t want to be in there, put it that way.

Q. So they are sometimes difficult to get on the trailers?

A. Oh, yes. Like they run around all over in there and, you know, you’re trying to get them into their compartment there and you’re - - deck levels were probably about three feet eight inches, type thing, between the levels, so you’re always in a bent position, type thing, trying to chase them around inside there. And then from there you’d be - - you know, once you got loaded, type thing, you’d be on your way already.

Q. Now for how long a period of time would you haul before you would stop and check the load?

A. Well, your first stop basically would be at the border, where your pigs are, your load is checked and cleared and stuff like that. Then from there it would be about another three hours over to Grand Forks for fuel, and again you’d be stopping maybe four hours later to, you know, for fuel again, and then basically to your destination. It all depended where you were going too. All our trips, they range from 7 hours to 15 hours.

Q. It’s very important that the panel know every aspect of your work duties because this is what the basis is for the mechanics of your injury.

A. Okay. Well once you’re done unloading and that, you know, it’s your responsibility to clean your trailer out. You know your trailer is either shavings or straw, depending on the weather conditions, type thing. That’s all done like by hand and shovel, type thing.

Q. So you are shoveling and sweeping the trailers out on your own?

A. That’s right, yes.

The claimant further testified that the truck he was driving had a defective driver’s seat, which effectively required him to sit at an angle to his left. Continuously sitting in this awkward position while driving aggravated his back.

We found the claimant to be an extremely credible witness and we have no hesitation in accepting his testimony. We find based on the weight of evidence that the claimant’s job duties are consistent with the development of his low back condition and that the claimant did, on a balance of probabilities, sustain an accident arising out of and in the course of his employment, which resulted in personal injury to his back. Accordingly, we further find the claim to be acceptable and 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 3rd day of July, 2003