Decision #78/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on January 26, 2006, at the request of the worker. The Panel discussed this appeal on April 20, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On June 2, 2005, the worker contacted the Workers Compensation Board (WCB) to report an injury involving his lower back which occurred on May 30, 2005. The worker reported this accident to his employer on May 31, 2005, when he awoke for his 6:30 am shift. The worker stated that when he tried to get out of bed he first noticed a burning, pinching sensation in his lower back. When he tried to walk, he had to hunch. He could not twist his body and could only stand for approximately 7 to 10 minutes. The worker also mentioned that on May 30, 2005, he was put on a new job for the day.

On May 31, 2005, the worker saw his physician who provided a diagnosis of low back strain. An AP & lateral lumbosacral spine x-ray was performed on June 6, 2005, and the impression was "discopathy L5, Facet asymmetry. Listing of the lumbar spine".

On June 21, 2005, the worker saw his physician again, who reported low back strain, right SI joint sprain.

In a decision letter dated June 28, 2005, primary adjudication advised that the WCB was unable to accept responsibility for the worker's lower back injury. It was noted that a relationship between the worker's back difficulties and an accident arising out of and in the course of employment had not been established.

On July 15, 2005, the WCB received an appeal submission from the worker's union representative asking that Review Office reverse the decision to deny this claim. It was noted that the worker's back strain most probably arose out of his work duties.

In a decision letter dated August 10, 2005, Review Office determined that the claim was not acceptable on the basis that the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of employment.

On September 15, 2005, the worker's union representative appealed Review Office's decision and an oral hearing was held on January 26, 2006.

Following discussion of the case, the appeal panel requested that the worker be assessed by an independent orthopaedic specialist. The independent medical examination took place on March 20, 2006.

On April 3, 2006, all interested parties were provided with copies of the information that was received by the specialist. On April 20, 2006, the panel met again to discuss the case.

Reasons

Chairperson Walsh and Commissioner Day:

The issue before the Panel was whether the worker's claim is acceptable. For a claim to be successful, the Panel must find that the worker suffered a personal injury by accident which arose out of and in the course of the worker's employment as required by The Workers Compensation Act ("the Act").

Subsection 4(1) of the Act provides:

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.

"Accident" is defined in subsection 1(1) of the Act as:

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

  1. a willful 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."

In order to determine whether the claim is acceptable, therefore, the Panel was required to review the evidence and determine whether the worker sustained "personal injury by accident" as defined in the above quoted legislative provisions.

The worker attended the hearing in person, accompanied by a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by his representative and by the members of the Panel. A representative of the employer participated by way of teleconference. The employer's representative did not ask any questions of the worker but did make a submission to the Panel.

The Panel heard the following evidence.

The worker is 31 years old and experienced significant low back pain in the early morning hours of May 31, 2005. The worker had just begun employment with his employer several days before. The worker's evidence was that on May 27, his first day of employment, he did not do any physical work. That day was simply an orientation day. Orientation continued on the next day May 28. May 29 was a day off. The worker's first 8-hour work day involving full duties was May 30, 2005. The worker commenced work that day at 6:30 a.m. and started what he described as "pan swinging" duties at 7:30 a.m.

The worker described the pan swinging duties as alternating every 20 to 30 minutes between the front loading end and the receiving unloading end of a conveyor belt. At the front end of the conveyor belt the worker was required to load empty metal pans measuring 2' by 3' which were stacked on a trolley located beside the conveyor belt, onto the conveyor belt itself. The conveyor belt stood at waist height. Both the trolley and the conveyor belt were in front of the worker with the trolley to his right. While on the conveyor belt, lumps of dough were deposited into moulds on the metal pans.

When at the receiving end of the conveyor the worker stood facing the belt, where he grabbed pans filled with dough which he then swung to his right and loaded onto a slotted trolley. That trolley was located just in front of the conveyor belt. Each slotted trolley held between 10 to 15 pans. The lowest rack of the trolley measured 1' or less from the ground. The top rack of the trolley measured at a height of 6'2". The pan swinging activity from the conveyor to the trolley continued until all the racks on the trolley were full at which point the worker pushed the trolley into the oven. Then the whole process was repeated. The worker loaded an estimated 10 trays per minute. The weight of the pan once filled with dough was between 5 to 10 pounds.

In transferring the trays of dough to the trolley, the worker described his movement. It involved a combination of standing in place and then pivoting once he had grabbed the pans to load them from the conveyor belt onto the trolley.

All of these duties were performed from 7:30 a.m. until 12:30 p.m. when the worker stopped for a 30 minute lunch break.

From 1:00 p.m. to approximately 2:30 or 3:00 p.m. the worker performed general cleaning duties. Those duties included brushing crumbs off the edges of various conveyor belts with a small hand held brush. The height of the conveyor belts ranged from 2 to 5 feet above the ground. The worker then used a push broom to sweep the crumbs on the floor. The ratio of push brooming to brushing was approximately 70/30.

The worker testified that he did not experience back pain at any time during the day of May 30, 2005. Nor, he said, had he experienced any pain before that time. His evidence was that once he had finished his shift he got dressed and went home where he laid on the couch. He did not do any extracurricular activities for the remainder of the evening. He went to bed between 9 and 10 p.m. At the time he went to bed he was not experiencing any problems with his back.

He testified in response to questions from his representative as follows:

"When did you wake up for your shift?

I woke up at 4 in the morning.
And how was your back when you woke up?
I woke up to extreme pain.
Now did you ever have pain like this in the past when you woke up?
No I have not.
Any problems similar to this ever waking up before?
No."

Upon discovering the pain, the worker immediately called his employer to advise them of the situation. He went to see a doctor later that same day.

The doctor made a diagnosis of lower back strain. In her first report the doctor described the area of injury to be the lower back and under the heading "Worker's Description of Accident or Injury" she indicated: "Lifting repetitively heavy trays with dough, lower back pain". The report also noted that the worker had been treated for lower back injuries in the past.

The worker saw this physician on four occasions. He was prescribed a variety of medications for pain control. He also attended a chiropractor from whom he received ten treatments and he was referred by his doctor to a physiotherapist.

At the conclusion of the hearing the worker's representative submitted that the cause of the worker's low back strain was the physical duties which the worker had performed, for the first time, on the day immediately prior to his waking up and experiencing pain.

The employer's representative submitted that there was no relationship between the worker's injury and the workplace. He stated that the worker did not experience low back pain until the morning after his first day of work when he rolled over and got out of bed and that this led to the conclusion that the worker's symptoms were not caused by anything work related.

At the end of the hearing it was determined that the worker should be sent for an independent medical examination.

The physician who performed the independent medical examination concluded that the most probable diagnosis of the worker's pain was mechanical low back strain. In the physician's opinion, however, the worker's low back condition was not a result of the work activities he performed on May 30, 2005 but was related instead to a pre-existing condition. It was noted that in prior x-rays taken of the worker there was a slight narrowing at disc L4-5, as well as at disc T10-11, and a moderate narrowing at disc L5-S1.

The worker's representative responded to this medical report by noting that the physician's diagnosis was consistent with the medical information provided by the worker's treating physician on May 31, 2005. With respect to the opinion that the worker's low back problems were related to a pre-existing condition, the worker's representative responded that the existence of those degenerative changes pre-dated the worker's employment with this employer. Therefore, he submitted, if this problem were solely due to the pre-existing condition one would have expected that the worker would have experienced symptoms prior to starting work with the employer whereas the worker's evidence at the hearing was that he had not experienced such symptoms.

The worker's representative pointed out that the worker was subjected to repetitive rotational movements of his spine on May 30, 2005 which were movements that he had not previously performed. Those movements, it was submitted, may have aggravated the worker's underlying pre-existing condition to the extent that they prevented the worker from continuing to work after May 31, 2005.

Conclusion

Upon review of the evidence we find that the job duties which the worker performed for the first time on May 30, 2005, did aggravate a pre-existing condition and were the cause of the symptoms he experienced when he awoke at 4:00 a.m. on May 31, 2005. Those symptoms prevented him from returning to work that day and following.

Board Policy 44.10.20.10 deals with the subject of pre-existing conditions. It defines "pre-existing condition" as being "a condition that existed prior to the compensable injury". The Policy defines "aggravation" as meaning "the temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident".

We find on a balance of probabilities that pursuant to subsection 4(1) of the Act the worker sustained a compensable accident on May 30, 2005. This compensable accident caused an aggravation of the worker's pre-existing condition.

Accordingly we find the claim acceptable.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2006

Commissioner's Dissent

Commissioner Finkel’s dissent:

The worker in this case asserts that he suffered low back problems from his employment in a bakery on May 30, 2005. His claim was denied at the adjudicative and review levels of the Workers Compensation Board (WCB) and he has appealed this issue to this panel.

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his employment.

In order for this worker’s claim to be acceptable, I would have to find that his lower back problems are causally related to his employment. I have carefully reviewed the evidence available in the file and presented at the hearing, and have concluded on a balance of probabilities that the worker’s job duties would not have resulted in the development of his low back difficulties. In reaching this conclusion, I have placed particular weight on the following evidence:

  • The worker was a new employee. He had two days of training, and May 30 was his first day of regular duties. He spent much of the morning alternating at the loading and unloading ends of a conveyor belt. At the front end, he took metal baking pans for hot dog buns from a stack and placed them on a conveyor belt that was in front of him. At the back end, he removed the pans which now had lumps of dough on them from the conveyor belt, and loaded a slotted cart slightly to his right. In the afternoon, he spent some time sweeping conveyor belts and floor areas until he completed his shift.
  • He had no pain or discomfort at work. His evidence was that after work, he was tired and had a quiet evening. He had no pain or discomfort that evening.
  • He went to bed at 9:00 pm. because he usually woke up at 4:00 a.m., by his “internal clock.” He had no pain or discomfort during the night, and in fact woke up at 4:00 a.m., because of his internal clock and in no pain. The worker evidence at the hearing was the same as that on his Worker’s Accident Report, that “at home trying to get out of bed, I didn’t feel anything right away just when I rolled over and tried to get out of bed.” His symptoms were described as follows: “At first I noticed the burning, pinching sensation in my lower back when I tried to get out of bed, then I tried to walk I had to hunch over to walk. I could not twist and I could only stand for approx 7 – 10 minutes.”
  • The worker indicates that he has since had continual low back pain to a degree that he has been unable to find a suitable job. His attending physician diagnosed a mechanical back strain, and this diagnosis was confirmed by an independent medical examiner who was asked by our panel to assess the worker.
  • The worker’s representative argues that it is not unreasonable for a worker to have difficult job duties with a delayed onset of pain until the next morning. In this case, however, I note that the pain complaints were not short term, such as from the muscular pain that one might expect from a person starting a new job. Instead, what is described by the independent orthopaedic consultant in his report of March 21, 2006 is a worker with pre-existing changes in his dorsal and lumbosacral spine and spinal discs, and a diagnosis of a mechanical low back strain. The specialist had been provided with information regarding the worker’s job duties, as well as to the time frames for the onset of his symptoms. When asked whether the low back condition was a result of his work activities the previous when the worker was training, the consultant replied: “In my opinion, his low back condition was not a result of his work activities on May 30, 2005. In my opinion, his low back condition is related to his pre-existing conditions as noted previously.”

In assessing the worker’s description of his “trying to get out of bed” as when he first noted the burning, pinching sensation, I find that it was this incident which on a balance of probabilities caused his mechanical low pain rather than the workplace activities the day before. This accords, as well, with the medical opinion of the independent specialist who reviewed this case at the panel’s request. Accordingly, I find that there was no accident as defined by the Act, and I would deny the worker’s appeal.

A. Finkel, Commissioner

Signed at Winnipeg, this 12th day of June, 2006.

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