The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

As indicated previously, this appeal deals with the acceptability of a claim for a back injury. In this particular case, the issue is clouded by the fact that the worker sustained three separate incidents within a two week period that might potentially be causative of his subsequent back injury – i) bench pressing at work; ii) a slip and twist on the way home; iii) an over-exertion while exercising at home. The worker says that his back injury was caused by the first incident and that his claim should therefore be accepted. The employer disagrees.

Background

The three incidents took place on 2 days. The bench pressing and slip and twist took place on April 6, 2002 whereas the exercising took place on April 20, 2002. To better understand the chain of events from April 6, 2002 to April 20, 2002, it is necessary to chronologically examine the incidents, as well as the worker’s symptoms and medical care.

a) April 6, 2002 – April 19, 2002

i) The Bench Pressing

On April 6, 2002, at approximately 8 p.m., the worker went to the office gym on his coffee break and bench pressed 150 to 170 pounds of weight. Though the worker often bench pressed this amount of weight he found he was having difficulty on this particular occasion. He carried on nonetheless by putting more weight on his shoulders and buttocks and arching his back to lift the weight. The worker’s reported evidence on file (May 15, 2002 internal office memorandum written by the worker; June 20, 2002 WCB claim; July 15, 2002 memorandum to file) is that he felt some pain in his low back when bench pressing but dismissed it. At the hearing, he testified that it was more like a ‘sensation’ and that he was not in any noticeable pain. He returned back to work and finished his shift at 10 p.m. He did not report an injury to anyone during that time.

ii) The Slip and Twist

After his shift the worker walked home. On the way, he slipped on the ice. His feet kicked out in front of him and he started to fall backwards when he turned to the left and grabbed onto the chain-link fence that was beside him with his right hand. He did not fall but his legs went out. He pulled himself up to a standing position and continued to walk home.

iii) The Symptoms and Medical Care

The worker went to bed on April 6, 2002 without any symptoms. The next morning however he woke up and was stiff. He therefore called work to say he could not come in. Though much has been made of the extent of worker’s reporting to his employer, we do not feel that anything turns on it. We have therefore not dealt with it in this decision.

The worker did not go to work on April 7, 2002. He also remained off work on April 8 and 9, 2002. As he remained symptomatic, he saw his family physician on April 10, 2002. Two reports deal with this initial visit – a report dated August 6, 2003 and a report dated October 7, 2005. The family physician writes that subsequent to the slip on the ice and the bench pressing, the worker experienced bilateral lower back pain with radiation into his buttocks. Examination revealed tenderness of the paravertebral muscles bilaterally and both sacroiliac joints. Straight leg raising and reflexes were normal and there was no paraesthesia. He was diagnosed with lower back strain, prescribed an anti-inflammatory and told to return to regular duties in two days.

The worker returned to his regular duties on Monday, April 14, 2002. The worker was unsure of the exact days he worked that week but did not dispute the employer’s evidence that its records indicate he worked April 14, 15, 18 and 19^th – the 16^th and 17^th were not worked due to entitled days offs. Several memoranda to file record the worker’s reports of hip and low back pain after sitting too long at work. At the hearing, the worker testified that the anti-inflammatory took away his back pain.

b) April 20, 2002 and beyond

Then on April 20, 2002, the worker awoke and decided to do some exercise. He rode a stationary bike, tried some sit-ups and dumbbell arm curves, and did some push-ups. Then his back seized up causing him excruciating pain. The worker described this pain as being on fire.

He called an ambulance and was taken to a hospital emergency facility. The hospital emergency report notes that the worker complained of sudden lumbosacral, left lateral buttock and foot pain. He was noted to have a history of recurrent low back pain. The diagnosis rendered was an acute lumbosacral spine strain.

The worker remained off work. He saw a chiropractor on April 22, 2002 with complaints of pain and tenderness in the low back with severe radiating lateral left leg pain to the ankle. The chiropractor noted that the worker injured his low back from arching his back from a bench press on April 6, 2002. The diagnosis rendered was an L4-5 disc herniation with L4 nerve radiculopathy.

A May 30, 2002 CT scan of the lumbar spine revealed moderate diffuse disc bulging at L3-L4 which approached the dural sac and L4 nerve roots, mild diffuse posterior disc bulging at L4-L5 with moderate facet arthropathy at L3-L4 and early facet arthropathy at L4-L5 with a small right posterolateral ridge osteophyte.

The worker remained off work for several more months and returned to his regular duties in 2003.

In an attempt to understand the cause of the worker’s back symptoms, his counsel wrote to both his treating chiropractor and physiotherapist.

A December 16, 2004 report from the physiotherapist indicates that the worker had 11 treatments between July and October, 2002. By September 18, 2002 he had minimal complaints of leg symptoms but still complained of low back stiffness in the morning. It was his opinion that the worker suffered from a myofascial gluteal dysfunction that was not likely caused by a bench press maneuver.

The undated report of the chiropractor (which is post marked April 25, 2005) indicates that he first saw the worker on April 22, 2002. The worker advised him only of the April 6, 2002 bench pressing incident. No mention is made of the other two incidents. On this April 22, 2002 visit, the worker complained of low back pain radiating into his left gluteal region and downward along his left lateral leg to his foot. He also had weakness in the anterior tibialis muscle and was not capable of performing a heel walk. His diagnosis was discogenic low back and leg injury resulting from nerve root impingement caused by a protruding disc. It was his opinion that this injury was caused by the mechanism of loading the disc while performing bench presses. He treated the worker until June 25, 2002. When seen on April 18, 2005 the worker did not report any significant discomfort.

Analysis

To accept the worker’s appeal we must find that the worker’s back injury arose out of and in the course of employment as defined in subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”). We are unable to make that finding.

As mentioned earlier in the reasons, much has been made about the worker’s untimely reporting of an accident at work on April 6, 2002 as justification for denial of his claim. Much has also been made about the worker’s credibility. In our opinion, this case does not turn on credibility. As the worker stated during the hearing, he is not sure what he did to cause his back injury.

In our opinion, the crux of this appeal lies in the mechanism of injury of each of the three incidents and the onset of symptomotology.

In reviewing and weighing the evidence on these two points, we are unable to find that the bench pressing incident caused the worker a back injury. We make this finding based on the worker’s description of his body positioning at the time he bench pressed as well as on the lack of symptoms immediately upon bench pressing and shortly thereafter.