The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 13, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On November 8, 2002, the worker filed a claim with the Workers Compensation Board (WCB) for a mid to lower back injury. The date of accident was recorded as being January 21, 2002 and was reported to the employer on November 8, 2002. The worker stated, "Pre-existing condition (spinal discopathy) is irritated when driving…This condition was not known until the medical report as attached was provided."

In a memo to file dated November 14, 2002, a WCB adjudicator outlined a telephone conversation that he had with the worker regarding his claim. The worker indicated that he had been working for his employer since 1993 and that he never had any back problems prior to the onset of his current problem which started in 1996. He was involved in one motor vehicle accident when he was 18 or 19 years old but was not injured. The worker stated that he was a competitive long distance runner but had stopped running competitively in 1996 because of hip problems and that he had stopped running altogether in 2000. In 1996, the pain in his hips subsided and the problem/pain gradually moved up into his back. In 1997, his back would be stiff when he got up in the morning. By 2000-2001, his back started to feel sore/stiff while at work. He could not drive a bus as the sitting and bouncing was causing him extreme pain. The worker commented that his back and hip problems started because of a functional problem with the way he ran. With regard to his delay in filing a claim with the WCB until November 8, 2002, the worker asked the adjudicator to contact his union representative for further information.

In a second memo to the file dated November 14, 2002, the WCB adjudicator documented that he called the worker's union representative. The union representative stated that the reason the worker did not file with the WCB sooner was because his doctors were unsure what the cause of his problems were. He stated that the worker's leg and back problems started in late 2001 as an operator. The worker was taken off work on January 26, 2002 and returned to work for a week in March 2002. When the worker started to perform his operator duties again his problems started to come back and he was taken off work. The union representative noted that once the worker's sick days and EI benefits had ran out, he applied for employee benefits which were later denied. This was when the union requested information from the worker's treating physician and a medical cause and effect relationship was then identified.

On November 20, 2002, the employer's representative provided the WCB with the Employer's Report of Injury as well as a memo from the worker's immediate supervisor dated November 13, 2002. As the worker did not report his January 26, 2002 injury to the employer until November 8, 2002, the representative asked the WCB to thoroughly investigate the claim to determine whether there was any connection between the worker's back problems and a workplace incident.

Prior to rendering a decision regarding the acceptability of the claim, primary adjudication asked the WCB's healthcare branch to review the medical information on file and to comment on a diagnosis and its possible relationship to the worker's job duties as a bus operator. In a response dated December 30, 2002, the medical advisor's opinion was that the diagnosis was L5 degenerative disc disease. He stated it was possible that the L5 degenerative disc disease was a condition that may be aggravated by excessively prolonged sitting postures and/or operating over very bumpy roads. He did not feel, however, that there would be any contraindications to the worker's continuing his job duties as a bus operator.

In a decision dated January 6, 2003, primary adjudication denied responsibility for the claim as it was unable to establish that the worker suffered a personal injury due to an accident arising out of and in the course of his employment. It was felt that the worker's job duties would not have aggravated his condition to the point that he would not be able to continue with his operator duties.

Subsequent file information revealed that the worker contacted the WCB to state that his back pain was getting worse after returning to work for a couple of weeks. The adjudicator advised the worker that the WCB was not accepting responsibility for his problems and therefore the WCB could not provide him with any benefits.

On January 21, 2003, the employer's representative provided the WCB with information regarding "alleged back problems" experienced by the worker on January 9 and January 15, 2003 which the worker attributed to his employment activities as a bus operator. It was the employer's position that the worker's back problems were not a consequence of his employment.

A WCB adjudicator spoke with the worker on January 23, 2003. The worker advised the adjudicator that he was forced to go back to work on January 3, 2003 and as a result re-injured himself. He stated that his back problems were a long standing condition made worse by his operator position. The adjudicator advised the worker that he could not adjudicate his claim for a specific accident at work in January 2003 as there was no accident at work. The worker was advised that the WCB would cancel his 2003 file and place all the information onto his 2002 claim.

On January 28, 2003, the union representative contacted the WCB and expressed his view that the worker's back condition was aggravated by his work duties after returning to work in January 2003 and that these should be treated as a new claim. The adjudicator pointed out that the medical opinion found on the first claim stated that the activities of an operator should not aggravate the worker's pre-existing condition to the point that he would be unable to continue being an operator. The union representative felt that this was in direct contradiction to the opinion that they received from the worker's treating physician.

In March 2003, the employer's representative provided the WCB with two Employer's Report of Injury forms for low back injuries that occurred on February 27, 2003 and March 7, 2003 which the worker related to his operator duties. The WCB later advised the employer that these claims would be treated as of part of the worker's 2002 claim.

On July 27, 2003, the worker's union representative wrote to Review Office outlining several issues for consideration. Based on this appeal along with later submissions received from the employer's representative and the worker, Review Office rendered the following decisions on January 16, 2004:

• The January 2002 claim was not acceptable - it was determined that the worker delayed in reporting an alleged work related low back condition for almost 10 months. Without any route assessment evidence on file from that time frame, Review Office was unable to conclude that the worker's low back condition was one that arose out of and in the course of his employment. After considering a report from the worker's orthopaedic specialist along with CT scan findings between 1998 and 2002, Review Office felt that the worker had a back at risk and that many activities could have exacerbated his underlying degenerative low back condition.
• The Employer's Reports for January 9 and 15, 2003, February 27, 2003 and March 7, 2003 were all to be placed into new claims and adjudicated accordingly - it was felt that these scenarios should be dealt with on their own individual merits and that it was not logical to simply assign them to the January 2002 claim.
• The request to convene a Medical Review Panel (MRP) was a new issue and was referred to a sector manager for handling.

In November 2004, the union appealed the Review Office's decision concerning the acceptability of the worker's 2002 claim and an oral hearing was arranged.

Reasons

Subsection 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 subsection 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."

At the hearing, the worker's attending physician was called as a witness. The doctor reviewed the worker's medical history, which confirmed a continuous reporting of increasing back difficulties throughout the period of November 2001 to January 2002. The attending physician confirmed his diagnosis of the worker's spinal pain as being L5-S1 discopathy with occasional S1 irritation and that this condition predated the work related incidents.

After having considered all of the evidence on file in conjunction with the treating physician's oral evidence, we find that the mechanism of injury, driving a bus in winter conditions, is consistent with the development of a short term aggravation or irritation of the worker's underlying or pre-existing discopathy. We further find based on the weight of evidence that the worker did, on a balance of probabilities, sustain an accident arising out of and in the course of his employment, which resulted in injury.

In addition, although there has been a delay in the worker's reporting of his low back claim, we nevertheless accept the treating physician's evidence that the worker's L5-S1 discopathy predated his January 2002 spinal pain.

We find the worker's claim is acceptable and accordingly his appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 9th day of August, 2005