Decision #172/06 - Type: Workers Compensation

Preamble

The issue addressed by this appeal is whether the worker’s claim is acceptable. The worker was diagnosed with degenerative disc disease and osteoarthritis of the spine. The worker applied to the Workers Compensation Board (WCB) but the WCB declined to accept the claim as it found that the worker did not sustain personal injury by accident. The worker appealed to the WCB Review Office but it agreed that the claim was not acceptable. The worker then appealed to the Appeal Commission.

An appeal panel hearing was held on September 13, 2006, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal following the hearing on September 13, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In June 2005, the worker submitted a claim to the WCB for neck and back complaints that he related to the nature of his job duties which involved heavy labour, lifting and twisting of bales of peat moss. The date of accident was recorded as being November 25, 2003. The employer’s report of accident for this claim indicated that the worker was not at work on November 25, 2003.

On September 14, 2005, a WCB adjudicator contacted the worker and the following information was obtained:

  • the worker was claiming wage loss benefits from November 24, 2003 to date;

  • he went off work in November 2003 because he had a sore back and couldn’t work anymore. He was “talked into” going on insurance benefits;

  • during the first 10 years of his employment with the employer, they loaded and stacked items by hand. The last 5 years were a lot better as the company began to use pallet machines and his work became more modified. He felt that a lot of damage had already been done to his back before the company started modernizing with machinery.

  • he did not initially claim compensation with the WCB as his employer and doctor told him that he had arthritis in his back and did not know if he would get WCB benefits.

Medical information consisted of reports from an occupational health physician, a chiropractor and two neurologists along with laboratory reports. On September 15, 2005, a WCB medical advisor reviewed the file information and outlined his opinion that the diagnosis appeared to be disc degeneration from L2-S1 and osteoarthritis within the cervical spine.

In a decision dated September 21, 2005, the worker was informed that the WCB was denying his claim for compensation as a causal connection could not be found between his diagnosis (disc degeneration and osteoarthritis) and the performance of his job duties.

On November 9, 2005, a union representative appealed the above decision to Review Office. The union representative outlined her position that the worker’s job activities with the employer put him at risk for the acceleration of his diagnosed disc degeneration and osteoarthritis. She felt that the disc degeneration led to a number of bouts of disc herniation, while the combined effects caused him to lay off work entirely. The submission included medical literature in support of her appeal.

In a November 16, 2005 decision, Review Office confirmed that the claim was not acceptable and found that personal injury by accident arising out of and in the course of employment had not been established. Review Office noted that the worker’s back complaints predated the commencement of employment with the employer of record given that he had been a patient at the chiropractic clinic since December 1983. It stated that osteoarthritis and degenerative disc disease were not occupational diseases according to The Workers Compensation Act (the Act).

In a further submission dated November 29, 2005, the union representative asked Review Office to “…consider and give weight to the objective medical findings throughout the course of this claim, such as disc problems.” Following a further review of the file evidence, Review Office indicated on December 5, 2005, that it could not rescind its November 30, 2005 decision based on the following rationale:

  • the worker’s condition was not temporary as there was medical evidence of a chronic condition lasting for years;
  • there was no compensable accident involved in this claim;
  • there was no clinical medical evidence of the worker’s employment enhancing his pre-existing degenerative spinal condition;
  • the worker’s subjective complaints came on while he was involved in a supervisory capacity and not while he was involved in a more physical demanding position; and
  • his condition did not improve while he was off work.

On April 26, 2006, the union representative appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Worker’s Position

The worker attended the hearing with a union representative who made a presentation on the worker’s behalf. The worker answered questions posed by his representative and the panel.

The worker commenced working for the employer in 1988. He described the various jobs that he performed while working for the employer and the mechanics of the jobs. He worked in the yard loading bales which ranged in weight from approximately 70 pounds to 100 pounds on to vans. He would load approximately 4 vans per day with each van holding 450 to 480 bales. He advised that in later years with automation the weight moved was reduced by approximately 50%. The worker had also worked as the yard coordinator and worked inside the plant as a baler for a couple of years.

The worked described a 2001 injury which occurred when he was operating a forklift. It was noted that the worker has not appealed the decision on this injury and that it was not before the panel at this hearing.

The worker advised that his lower back problems began after he returned to work from the 2001 injury. He stated that he did not have lower back problems before this time. The worker advised that his back became more painful and that he left work in late 2003.

The worker advised that he applied for private insurance because he was advised that the WCB would not cover arthritis in his back. He eventually applied for WCB benefits on the advice of his physicians.

Regarding his current status, the worker advised that when compared to two years ago his back is “probably about the same.” He advised that he had tried many different treatments for his back including laser treatments, the use of orthotics and a chi machine. He advised that he participated in a work hardening program in 2004 but that it did not benefit him. He advised that his lower back bothers him when he does repetitive bending. Walking or standing on concrete also bothers his lower back. His mid back is bothered by twisting. He finds his neck also bothers him if he is on concrete.

The worker’s representative argued there is a cause and effect relationship between the condition of the worker’s spine and the work he did for many years. The representative said it was wrong for the WCB to deny responsibility for the claim simply because there is evidence of disc degeneration and osteoarthritis. She referred to medical reports from the worker’s treating chiropractor and several physicians including a neurosurgeon and an occupational health clinic physician.

In a written submission the representative noted that the worker’s job duties with this employer “…put him at risk for the acceleration of his diagnosed disc degeneration and osteoarthritis. The disc degeneration led to a number of bouts of disc herniation, while the combined effects caused him to lay off work entirely.”

Employer’s Position

While not in attendance at the hearing, an advocate provided a written submission on the employer’s behalf. The representative advised that the employer agrees with the WCB Review Office decision on this claim. He submitted that the worker’s disabling condition is pre-existing and degenerative in nature. He also submitted that there is no evidence to support that a workplace-based aggravation or enhancement of the condition has occurred.

Analysis

The issue before us is whether the worker’s claim is acceptable. For the appeal to be successful, we must first find that the worker had an accident. Accident is defined in the Act as:

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

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

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

(c) an occupational disease,

and as a result of which a worker is injured.

Where the worker has a pre-existing condition, as in this case, wage loss benefits may be payable under the WCB’s pre-existing condition policy, No. 44.10.20.10, if the conditions of that policy are met.

We note there is no dispute that the worker has back problems. The worker has been diagnosed with disc degeneration and osteoarthritis which has been confirmed by an MRI of his spine. We, on a balance of probabilities, are unable to find that the worker had an accident as required by the Act. We note that in his application to the WCB the worker attributed his injury to “all the heavy lifting, twisting of the bales of peat moss”. There is no indication that the worker’s condition was caused by an acute event and the medical or scientific evidence does not establish that disc degeneration is an occupational disease arising out of the nature of the worker’s occupation. We find that the facts do not establish that an accident occurred.

With respect to the application of the WCB’s policy on pre-existing conditions, the evidence does not establish that the worker’s condition has been aggravated or enhanced by his workplace duties as required by that policy, and thus a workplace accident cannot be established by application of that policy.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 8th day of November, 2006

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