The Appeal CommissionThe Workers Compensation Act of Manitoba

As indicated in the Preamble, this appeal deals with claim acceptability. Essentially, we must determine which incident was the more likely cause of the worker’s back condition. A great deal of emphasis has been placed, at both the WCB and at the hearing, on the worker’s delay in reporting a workplace accident to his employer and more generally on the worker’s credibility. Though we had some concerns as to the worker’s evidence about his reasons for the delayed reporting, we do not feel that this appeal turns on credibility. Rather, we find that this appeal turns on the worker’s symptomotology after each incident.

The February 24, 2003 Incident

On February 24, 2003 the worker assisted another person with lifting a 230 pound unconscious individual in cold and icy conditions. The worker explained that the unconscious individual was lying on the pavement. He and the other person lifted the unconscious individual into a car and then out of the car and onto a stretcher. About ½ to 1 ½ hours later he began to feel some discomfort in his back. He went home and went to bed.

The worker’s co-worker was asked about the lifting incident by the employer. The co-worker did not recall the worker saying anything about injuring his back after lifting the unconscious individual or experiencing any discomfort.

The February 25, 2003 Incident

The next morning the worker arose with the same level of discomfort. It did not progress during the course of the morning. He drove across the city to play a non-contact hockey game which started at about 11 a.m. After about 30 or 40 minutes into playing, the worker reached for a puck and felt “a little bit more acute pain” to his back that was “sufficiently sore enough” to make him skate off of the ice and go home. As the afternoon progressed he began experiencing some spasm.

Information obtained by the employer from a co-worker on April 2, 2003 indicates that the co-worker recalled the worker telling him that he was reaching for a puck and he felt his back go. He skated to the bench after which his back went numb. He tried to go back onto the ice but couldn’t. At the hearing the worker was asked about his co-worker’s description of his back pain. He could not comment on his co-worker’s choice of words.

The worker drove back home and went to work for his 4:30 p.m. shift where he asked for modified duties. They were denied and the worker left work.

The Medical Evidence

After the worker left work on February 25, 2003 he saw his chiropractor who diagnosed him with acute mechanical spine pain with antalgia or discogenic low back pain.

This was the same diagnosis made by a sports medicine specialist who the worker saw on April 8, 2003. The specialist thought that the worker’s pre-existing and recurrent problems of four back episodes in the preceding 21 months could affect the worker’s recovery period. This pre-existing history of low back pain was confirmed by the worker’s family physician.

The incident responsible for the worker’s discogenic low back pain was explored by the WCB with the worker’s chiropractor, specialist and a WCB medical advisor.

The chiropractor told the WCB that a disc injury would be caused from a bend and lift and not from playing hockey. He followed up with a report that outlined his opinion that the worker’s presentation was more consistent with a lifting mechanism (forced flexion injury) than a reaching type mechanism (slight flexion injury). While he did concede that the minimal flexion involved in skating ‘could’ aggravate a susceptible back, he thought that in this particular case, it was more probable that the worker’s discogenic low back pain was related to the workplace incident. He added that if the worker’s “back was in jeopardy with respect to skating then that ‘jeopardy’ was most probably related to the lifting incident the day before than it would be to prior common backache that he may have had in the years before.”

The specialist also thought that the lifting mechanism was more consistent with a disc injury than a skating incident. He added that the hockey game was non-contact and that the worker was not prone to frequent falls given his prior hockey experience.

A WCB medical advisor disagreed with this conclusion. Rather he thought that given the absence of acute symptomotology after the workplace incident, and the significant worsening of symptoms during the hockey incident, it was more likely that playing hockey produced the worker’s symptoms.

The Pre-Existing Condition

As indicated in the medical reports and as conceded by the worker in his contact with the WCB and at the hearing, the worker suffers from pre-existing back problems.

An April 28, 2003 memorandum to file indicates that the worker stated that “he has had problems with his back before and that often it does not act up until 6 -12 hrs after the incident”.

The worker testified that he has had other WCB claims for low back pain that was often caused by lifting incidents. The employer representative advised that one of the claims for which he saw his chiropractor in 2002 was when he tripped and fell forward onto the stairs.

Worker’s Position

The worker says that his claim is acceptable. He says that in weighing which of the two incidents was more likely to cause his injury, we must accept that it was the lifting incident. This incident was more serious in nature than simply reaching for the puck. It is also accepted as the more likely mechanism of injury by his two treating doctors.

Employer’s Position

The employer says that the claim is not acceptable as the totality of the evidence does not support the necessary nexus between the worker’s back problems and a work related injury.

Preliminary Issues Raised at the Hearing

Counsel for the worker raised the issue of convening an MRP as there was a difference in medical opinion between the worker’s treating doctors and a WCB medical advisor. This issue had not been pursued further as the WCB had taken the position that it did not rely on the WCB medical advisor’s opinion. Counsel subsequently withdrew his request for an MRP but submitted that the panel should be precluded from relying on the WCB medical advisor’s opinion. At the hearing, the panel ruled that it was not precluded from considering the WCB medical advisor’s opinion. It was explained that as an inquiry model, we sought to have all relevant medical evidence before us.

Analysis

To accept the worker’s appeal we must find that there was a workplace accident arising out of and in the course of employment in accordance with subsection 4(1) and 1(1) of the Act. We are unable to make that finding.

The two treating physicians have opined that a lifting injury is more likely to cause a disc injury than a skating or reaching injury. They do not however deny that disc injury can occur in a skating injury. In fact, the treating chiropractor candidly admits that it can.

While the lifting injury on its face appears to be a more serious incident in that it involves greater weight, disc injuries can occur from relatively benign incidents. The worker’s prior WCB claim in 2002 where he tripped on a stair and fell is evidence of that. What is, in our opinion, determinative of causation, is the symptomotology after each incident.