The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

At the claimant's request, an Appeal Panel hearing was held on June 11, 2003. The Panel discussed the appeal and made its determinations on the same date.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On February 1, 2002, the claimant submitted an application for compensation benefits relating to an injury experienced in August, 2001. In a letter attached to her application, she noted the onset of severe pain in her neck, back and hands in July, 2001 which eased when she was away from work.

For the claimant, matters came to an unfortunate head during the August long weekend. On Sunday, August 5, 2001, her back pain became so severe that she could not get out of bed or walk very well. The incident was later described as a "sharp, stabbing pain in the low back radiating into the right buttock and posterior thigh." The claimant contacted an emergency ward and promptly sought treatment from a chiropractor and a doctor. Later in the month, she sought treatment from a second chiropractor. Although her pain was not restricted to that area, her lower back appears to have been the primary source of pain. The claimant advised her first chiropractor:

its my lower back that's having the pain, the worst of the pain, deal with the worst pain first.

The claimant missed a number of days of work in August and September, 2001. She was absent from work on a planned leave between mid-September and mid-November. In mid-September, she also underwent knee surgery. In early October, 2001, the claimant went to an emergency room due to a severe pain in her back and spasms in her leg.

She did not return to work when her planned leave ended in mid-November because her family doctor wished her to recover from recurrent back pain which was radiating down her leg. The claimant did return to work on January 14, 2002. Unfortunately, pain radiating down her leg caused her to return to medical leave (EI) on January 28, 2002.

When asked for its perspective on the claim, the employer stated that the claimant had not indicated that she was experiencing any pain or numbness in her hands, arms and wrists. The employer acknowledged that the claimant had identified back pain as of August 5, 2001 but noted there was no suggestion that the back pain might be related to the claimant's physical work environment.

Initial medical information available to the WCB Adjudicator revealed that the claimant was assessed at a hospital emergency facility in October, 2001 and was also treated by two chiropractors, a general practitioner and a acupuncturist (naturopath). The claimant underwent several diagnostic evaluations pertaining to her lumbosacral spine which confirmed that she suffered from an L4-5 paracentral disc herniation with accompanying degenerative disc disease and osteoarthritis of the lumbosacral spine.

On March 12, 2002 a WCB adjudicator contacted the claimant to gather additional information concerning her work history, her medical treatment, the onset of her back difficulties, and the accident.

In a decision letter dated April 19, 2002, a WCB adjudicator advised the claimant that her claim was not acceptable. The adjudicator stated, in part, "Given the length of time in performing the same duties without difficulties, no apparent changes to your job duties or work environment, no other accidents occurring, we are unable to relate your back, neck, bilateral arm and hand difficulties to your workplace activities. It is our opinion that your diagnosis is a pre-existing condition, unrelated to your workplace activities." In rendering her decision, the adjudicator made reference to Sections 4(1) and 1(1) of The Workers Compensation Act (the Act).

On June 25, 2002, a WCB Quality Assurance Coordinator recorded his June 24th telephone conversation with the claimant with respect to the claim. The claimant clarified a number of errors or points that were omitted from the file documentation in connection with her March 12, 2002 telephone conversation with the WCB adjudicator. The claimant expressed concerns over a letter that was written by her general practitioner dated April 23, 2002 along with the information that was provided by her employer. On June 25, 2002, the claimant also provided a picture of her desk set up and a workstation assessment.

In a memo to a WCB supervisor dated June 26, 2002, the quality assurance coordinator made the following recommendations in connection with the case:

that the Government Employees Compensation Act (GECA) should have been used to consider if an accident had occurred in the April 19th decision, as opposed to The Workers Compensation Act.

that a report should be obtained from the claimant's treating acupuncturist which was presently not on file.

additional information should be obtained from the employer concerning the ergonomics of the claimant's workstation.

On July 14, 2002, the claimant appealed the adjudicator's decision of April 19, 2002 to Review Office. Prior to considering the appeal, Review Office obtained the medical advice of an orthopaedic specialist. In a report dated August 20, 2002, the specialist rejected the claimant's assertion that improper ergonomics in the workplace had caused her back problems. In his view, the condition in the lumbar spine was degenerative in nature and there was no acute injury to implicate the disc herniation as being ergonomically related.

In a decision dated August 23, 2002, Review Office considered the file documentation and determined that the claim was not acceptable.

Review Office noted the claimant's belief that her back problems had been caused by the poor ergonomic set up of her work station and the resultant strain placed upon her back. However, it held that medical investigations confirmed that the claimant was suffering from an L4-5 paracentral disc herniation with accompanying degenerative disc disease and osteoarthritis of the lumbosacral spine and relied upon the August 20, 2002 opinion of the orthopaedic specialist. Review Office noted that neither the worker's disc herniation or spinal degeneration have been shown to have any medical correlation to her work duties as a client services officer.

In a letter dated November 13, 2002, an Occupational Health Physician provided his analysis of the claimant's situation. In his view, her:

back restrictions and aching may well be related to shortening and irritation of the (right) quadratus lubrorum. This likely contributes to the functional shortening of the right foot and explains her restrictions with prolonged sitting and standing. The CT-Scan finding of L4- 5 disc herniation may be underlying the protective muscle shortening. Given she was pain free in the low back until last August, the herniation might be related to this injury, although there are signs of more chronic degenerative changes at that level that likely have predated her onset of low back symptoms. (emphasis added)

On November 18, 2002, additional information was provided by the second chiropractor. He rejected the orthopaedic surgeon's suggestion that degenerative joint disease was the cause of the claimant's symptoms. The chiropractor linked the claimant's symptoms such as spinal and shoulder pain to a leg length deficiency which would create knee problems due to biomechanical distortion. In his view, given the work place ergonomics and postural demands at the claimant's work station, the mechanism of injury was consistent with his objective findings. Information was also provided by an athletic therapist in January, 2003.

On March 26, 2003, the claimant appealed Review Office's decision taking the position that the claim for repetitive strain injury was denied in error. In her view, the weight of medical evidence supported a relationship between her medical condition and her workplace activities.

Evidence at Hearing:

An oral hearing was set for June 11, 2003. Additional written information including information from a rehabilitation consultant was received from the claimant on June 3, 2003. Given the consent of the employer and pursuant to ss.8(3) of the Appeal Commission Rules of Procedure, additional written material was also received from the claimant on June 11, 2003.

The claimant presented her position on June 11, 2003. In seeking an explanation for the cause of her injury, she suggested that her pre-existing medical condition was materially aggravated by the stress placed upon her body by the demands of her work as exacerbated by an ergonomically incorrect workplace. She suggested that her "symptoms became significantly more severe as the work week progressed and improved over weekends or vacations when she did not work."

In support of her contention, she pointed to information suggesting that her work station required ergonomic improvements. She also referred to comments by among others, her occupational health doctor, her athletic therapist and her chiropractor which in her view connected her injury to the demands of her job and/or poor workplace ergonomics.

During the course of the hearing, both the claimant and the employer had the opportunity to discuss the nature of her duties in the period immediately preceding her injury. At the hearing, the claimant noted that for the last six or seven years of her employment she had been doing a job which she believed required her to do more twisting to accomplish her duties. She suggested that in the period before her injury she was working particularly hard on "a really unpleasant project" which involved more work on the telephone, computer and adjacent work space.

Her employer agreed that the workload was unpleasant but in her view it "would not present any different challenges than working on just the normal workload, she wouldn't be doing anything more or less repetitive processing those particular files than you would just pulling the normal inventory."

Reasons

The panel's jurisdiction in this matter flows from the Government Employees Compensation Act (GECA) which makes provision for the coverage of employees of Her Majesty as defined under the legislation.

Section 4(3) of GECA provides that:

Compensation under subsection (1) shall be determined by

(a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty; or

(b) such other board, officers or authority, or such court, as the Governor in Council may direct.

As WCB Policy 44.05.10 explains, GECA "determines eligibility for compensation benefits for employees falling within its jurisdiction. Under an agreement with the Federal Government, the GECA is administered in Manitoba by the Manitoba Workers Compensation Board."

Section 4(1) (a) of GECA states that:

Subject to this Act, compensation shall be paid to

an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment.

Board Policy 44.05.10 directs that the definition of accident in the GECA is to be given a broad interpretation. The phrase "personal injury by an accident" is to be interpreted to mean "personal injury by accident". Under this interpretation, the gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion is also to be considered an accident.

The issue before the Panel is whether or not the claim is acceptable. To make that determination, the Panel must consider whether, on a balance of probabilities, the claimant's injuries by accident arose out of and in the course of her employment.

In making its determination, the panel has had the opportunity to review the entire record and to consider the very able submissions of the claimant. The Panel has given particular consideration to the nature and circumstances of the claimant's injuries which prevented her from working, the evidence relating to the cause of these injuries and the work environment at the time of her injury .

As the background demonstrates, the presence of a "sharp, stabbing pain in the low back radiating into the right buttock and posterior thigh" is an enduring theme in the claimant's inability to attend work. It was the presence of this sharp stabbing pain that characterized her incident of August 5, 2001 and which also led to her Doctor's recommendation in November, 2001 that she not return to work at that time. The same general symptoms led to her inability to stay at work in January, 2002.

In the record of this proceeding, there are differing views as to cause of the claimant's injury. The second chiropractor rejects the suggestion that degenerative joint disease was the cause of the claimant's symptoms. Instead, he links her injury to a biomechanical distortion (due to a leg length deficiency) exacerbated by work place ergonomics and postural demands at the claimant's work station.

In contrast, the orthopaedic specialist points to the herniation with accompanying degenerative disc disease and osteoarthritis of the lumbosacral spine as the cause. He cannot identify any acute injury to implicate the disc herniation as being ergonomically related.

The Occupational Health Physician suggests that the back restrictions and aching may well be related to shortening and irritation of the (right) quadratus lubrorum. He sees the disc herniation as a likely explanation for the protective muscle shortening. While he observes a triggering event might have taken place in August, 2001, he notes the existence of more chronic degenerative changes at that level that likely predated the onset of the claimant's low back symptoms.

In the panel's view, the medical evidence suggesting the claimant's injury is related to a pre-existing degenerative condition and not causally related to the work place is reinforced by a review of the claimant's relatively stable work environment and the immediate circumstances surrounding her increased symptoms.

As a starting point, it is worth noting that the stabbing back pain first experienced by the claimant did not occur at work. Instead, the incident took place on the Sunday of a long weekend. Moreover, the uncontested evidence in this proceeding establishes that the claimant had been in the same job for a number of years without any material work place injuries relating to her back.

There is some dispute between the claimant and the employer as to whether the duties she was performing in the period prior to her injury constituted a somewhat different workload. However, the Panel is satisfied that even if the claimant's version was preferred, there was not a material change in the nature of her duties prior to her injury such that it would have, on a balance of probabilities, triggered the injury. The claimant herself did not draw a connection between her workplace and the incident of August 5, 2001 until January, 2002 some five to six months after the event.

After considering the entirety of the record and weighing the medical opinion in light of the circumstances surrounding the claimant's injuries, the Panel finds on a balance of probabilities, that the claimant's back condition was not causally related to a compensable injury.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of July, 2003