Public Decisions | The Appeal Commission

Decision #73/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 10, 1999, at the request of the claimant. The Panel discussed this appeal on February 10, 1999 and May 6, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In April 1998, the claimant submitted an application for compensation benefits in relation to pain in his lower right buttock which he related to his employment activities as an owner/operator long distance truck driver on January 25, 1995. Initial medical information dated March 24, 1998, revealed that the claimant had pain on both ischial regions after sitting and driving for short periods. The physician also noted that the claimant had similar problems before. The diagnosis was reported as ischial bursitis.

On May 7, 1998, a sworn statement was obtained from the claimant and the following information was noted:

the claimant worked for the accident employer from July 1989 to December 1994, as a company driver, driving double, long distance. The claimant noted that his low back and shoulders became very sore from bouncing around in the truck while trying to sleep. At this point, the claimant indicated he did not seek medical attention.
in December 1994, the claimant stated he purchased his own truck and worked as an owner/operator. Around Christmas, 1994, he started to notice a pain in his right buttock and tried different methods to ease the discomfort such as a pillows, cushions, etc. to no avail.
the claimant stated he never filed a complaint with his employer but mentioned the difficulties he was experiencing to some of his co-workers. He spoke with the company's insurance person but she did not think his insurance would cover him so he kept on driving.
in October 1995, the claimant sought medical treatment and his physician prescribed medication which did not help. He was then referred to a specialist and had undergone a variety of tests.
while visiting family in Portugal for a month, the claimant indicated that he did not drive at all and was fine. Upon his return and on his first driving trip, the claimant stated the pain came back like it was before.
on March 7, 1997, the claimant started employment with a different company but did not tell them about the pain.
in March 1998, he found a driver to operate his truck and attends physiotherapy two or three times per week.

On April 21, 1998, information from the employer revealed that the claimant had hip problems well before he started working for the company.

In a decision dated May 22, 1998, primary adjudication noted that the worker experienced back and hip difficulties for many years and there was no specific accident or incident at work. It was also noted that the claimant did not seek medical treatment or file a report with his employer for several years. Primary adjudication concluded therefore that the claim was not acceptable as the criteria set out under subsections 4(1), 1(1) and 17(5) of the Workers Compensation Act (the Act) had not been met.

On June 8, 1998, the claimant appealed the above decision to the Review Office who, in turn, referred the case back to primary adjudication to determine whether ischial bursitis was a condition viewed as a peculiar or characteristic risk of a truck driver. As a result of the referral, primary adjudication requested and obtained additional medical information from the attending physician dated July 20, 1998, and from an orthopaedic specialist dated September 14, 1998. The additional information was then reviewed by a WCB medical advisor on September 18, 1998.

On September 28, 1998, the claimant was advised by primary adjudication that a definitive diagnosis had not been established and therefore it was confirmed that his back and hip difficulties were not directly related to his employment duties. The claimant disagreed with this decision and the case was referred back to the Review Office for consideration.

In a decision letter dated November 23, 1998, the Review Office stated that the weight of evidence had shown that the claimant apparently had unexplained pains in the region of his lower back and hips, which could not be attributed to an anatomical or pathological cause and which was not supported by any objective clinical finding. As a particular injury had not been identified, the Review Office was not satisfied there was evidence which showed that the claimant's symptoms were more likely than not caused by accident arising out of and in the course of his employment.

On December 7, 1998, the claimant appealed the Review Office's decision and an oral hearing was held on February 10, 1999. Prior to rendering a decision, the Appeal Panel requested and received a medical report in connection with an examination that the claimant underwent on June 30, 1998. The claimant also forwarded to the Appeal Commission a copy of a psychiatric report dated October 13, 1998, and a report from an independent specialist dated April 13, 1999. On May 6, 1999, the Panel met to render its final decision.

Reasons

The issue in this case is whether the claim is acceptable. The relevant subsections of the Workers Compensation Act (the Act) are subsections 1(1); 4(1) and 17(5). 1(1) defines accident, 4(1) 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 and 17(5) provides for a bar to a claim where there is a lack of appropriate notice by a worker of an accident.

Subsection 1(1) states:

Definitions

I(1) In this Act,

"accident" means a chance event occasioned by a physical or natural cause; and includes

(b) any

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured.

Subsection 4(1) states:

Compensation payable out of accident fund

4(1) 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 accordance with this subsection the panel must, initially, be satisfied that an accident within the meaning of subsection 1(1) has occurred.

Subsection 17(5) states:

Failure to give notice a bar to any claim

17(5) Failure to give the notice required by virtue of this section, unless excused by the board on the ground

(b) that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or

is a bar to any claim for compensation under this Part.

We reviewed all the evidence on file and received during the hearing process and we find that the weight of the evidence does not support a finding that the claimant sustained personal injury due to an accident arising out of and in the course of his employment. In reaching this conclusion we noted the following evidence:

in a report dated January 31, 1996 an attending orthopaedic specialist indicates:

"He apparently purchased a Mack truck about a year ago. This Mack truck has a console on the right side. He has had difficulty since that time, as he developed a pain in the right buttock area with radiation to the right proximal posterior thigh. He did have this problem six years ago, and this pain settled down spontaneously."

The orthopaedic specialist further notes following his examination:

"He was noted to be a healthy looking male and was not in any acute distress. The lumbar spine has complete pain-free range of movements. Both hips also have complete pain free range of movements. There was no tenderness over the spine, sacroiliac joints or over the ischial tuberosity on either side... .

Diagnosis:
Pain right hip NYD [not yet diagnosed]."

a bone scan of the pelvis and spine performed on February 1, 1996 was reported as normal;
in a report dated April 2, 1996 an attending orthopaedic specialist indicates:
"Clinically he does not have any restrictions of the movements of the lumbar spine. There was no tenderness over the ischium. In other words the clinically (sic) examination was within normal limits."
a C.T. scan of the lumbosacral spine performed on May 16, 1996 was reported as normal;
the Employer's Report of Injury dated April 20, 1998 indicates that the claimant had a problem with his lower back and right hip which started in 1995 while the claimant was driving for another employer and indicates that the problem was not reported as work related to the current employer until April 15, 1998;
the Worker's Report of Injury dated April 15, 1998 identifies a specific date of onset of symptoms as January 25, 1995;
an initial medical report dated April 24, 1998 from the claimant's attending physician diagnoses ischial bursitis after sitting and driving for a short period and identifies similar problems in the past;
in a narrative report dated July 20, 1998 the attending physician notes that he saw the claimant on October 17, 1995 and January 16, 1996 as well as several occasions in 1997 and 1998. The attending physician indicates:
... . "he [the claimant] realised the problem was not with the truck's model but rather with his problem which, at this time, remains relatively unclear,"
... . "precise diagnosis of Mr. [the claimant's] condition is probably not easy to make at this time given the fact that previous investigations have been negative." (emphasis added)
an independent medical specialist in inflammatory and arthritic diseases indicates in a report dated July 30, 1998 that the most likely cause of the patient's symptoms is a right ischial bursitis but that a right mechanical sacroiliac pain would also be in the differential diagnosis. The specialist further notes that sacroiliac stress maneuvers were within normal limits, there was no specific pathology of the hip or the iliopsoas bursa, and no systemic disease which would account for the specific pain and discomfort;
a WCB medical advisor reviewed the file and in his report dated September 18, 1998 he indicates that there is a major problem with the diagnosis as the orthopaedic specialist had found no tenderness in the ischial tuberosities and that he would expect the tenderness in that area to remain a constant if the claimant had ischial bursitis and therefore there was no diagnosis on which he could comment;
the claimant was referred to a rehabilitation and physical medicine specialist who noted in a report dated April 13, 1999 that the claimant had not worked for over a year and further indicated:
"... . There was no sensitivity to pressure over the area of the ischial bursa and tuberosity. He, however, did complain that this was the area that the pain originated from... .
The current clinical examination was within normal limits. He, however, has complaints of pain originating from the area of the ischial tuberosity. I am uncertain regarding the exact causes of his current symptomatology as he has no findings in the current examination. However it is possible that the ischial bursa may be the pain generator when he is being seated for a long period of time, and it is related to a low-grade ischial bursitis. The onset of his symptomatology is related to long distance truck driving although I would suggest that the prolonged sitting is an etiologic factor."

The medical evidence suggests a possible diagnosis of right ischial bursitis which to date has not been confirmed nor has there been a response to a variety of treatments. This diagnosis in our view is therefore speculative and we note that no other diagnosis has been established. We further note the claimant has been assessed for his complaints by numerous physicians, from a variety of specialties, who for the most part report a lack of clinical findings in support of the suggested diagnosis. A number of diagnostic medical investigations have also failed to demonstrate any abnormalities. In light of this it cannot be confirmed, on a balance of probabilities, that the claimant's difficulties are related to his employment duties. Although we recognize the claimant has presented with subjective complaints of pain in his hip and buttock we note that the claimant has not performed his regular duties of long distance trucking for more than a year and despite this, the symptoms have continued in intensity which does not support a causal relationship to the claimant's employment. The evidence in our view, on a balance of probabilities, fails to support that an accident as defined by subsection 1(1) of the Act with a resultant injury has occurred.

We also note that the claimant did not report his complaints to the employer of record until approximately thirteen months after he commenced employment with this company. We find that the claimant's failure to notify his employer of an accident within a reasonable time frame contravenes the requirements of subsection 17(5) of the Act and that this lack of reporting further supports a finding that an accident did not occur. Therefore the claimant's appeal is denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of May, 1999

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