The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

On February 14, 1988 while driving truck, the worker was involved in a serious accident. His truck rolled over and he was thrown from the cab, sustaining seven broken ribs, a punctured lung and multiple contusions and lacerations. The accident left him with a permanent hole the size of a fist in his left rib cage. He was hospitalized for several weeks but returned to work on April 20, 1988.

Though the worker returned to full time trucking, he says he continued to suffer from mainly right-sided mid and lower thoracic spine and chest pain which increased in intensity and frequency over the years. By 2003 his back had gone into constant spasm and he was finding it difficult to work to the point that he suffered a loss of earnings. The worker’s complaints are documented by the family physician that he began to see in 1996. Records from the worker’s prior physician (from 1988 to 1996) were not retrievable.

Then on March 29, 2005, the worker had another work-related accident when he slipped off a pallet and landed on his right rib cage. That claim (which is separate from this claim) was accepted by the WCB and benefits were paid until May 18, 2005 when it was determined that the worker had recovered from this accident and was able to return to his full time duties.

When the worker did not return to his regular duties and continued to complain of ongoing symptoms, the WCB investigated their cause. Three WCB medical advisors did not think that the worker’s ongoing complaints were related to the February 1988 accident. Their rationale was essentially the passage of time since 1988 and the lack of reported injury to the worker’s spine at the time of the 1988 accident.

This was not however the position of the WCB chiropractic advisor who reviewed the worker’s file and examined him in September 2005. Though the chiropractor did not find any objective physical findings to preclude a return to work, he did think that there could be a causal link between the worker’s ongoing symptoms and his 1988 accident:

“…if it is assumed that [the worker] first suffered thoracic spine pain in his rollover in 1988, and if that pain persisted until the present and worsened with the most recent accident, then the 1988 accident would constitute a probable causal mechanism, and the long distance truck driving a probable perpetuating mechanism, both of which are contributors to his present condition.”

The worker’s family physician and chiropractor agreed that the worker’s ongoing symptoms were causally related to the 1988 accident. The chiropractor explained the rationale for this opinion in a May 12, 2006 report and at the hearing.

He explained that the mechanism of injury and the forces that took place to fracture the worker’s ribs on both sides adjacent to the thoracic spine and punctured lung would, “without question” have resulted in trauma to the thoracic spine. This is because the thoracic spine is linked to the ribs and its supporting structure. This is also supported by the contusions and lacerations found on the worker’s back at the time of the accident. Further, the permanent deformity in the worker’s left rib cage would have had an impact on the myofascial structures and biomechanics of his thoracic spine.

Contrary to the WCB chiropractic advisor however, the treating chiropractor thought that the worker would not be able to return to his previous employment as a truck driver. He relied on an independent functional capacity examination (“FCE”) of March 2006 that revealed “significant limitation of extension” throughout the worker’s spine and high pain levels in his spine after one hour of continuous light/medium activity. It also revealed lifting, stooping, crouching and sitting restrictions and difficulty coping with “high loading/compressing” of his spine. Given the compressive forces involved in sitting and the vibration of a truck, the functional abilities examiner who administered the FCE felt that the worker would be precluded from working as a truck driver.

Worker’s Position

The worker says that he is entitled to temporary total disability benefits beyond May 18, 2005 as he suffered a recurrence of his 1988 accident and cannot return to his full time regular duties as a truck driver.

Employer’s Position

The employer takes the position that there is no conclusive evidence that the worker’s current symptoms are solely the result of the 1988 accident. They say that the worker was involved in other accidents that could be causing his symptoms.

Analysis

To accept the worker’s appeal we must find that his symptoms after May 18, 2005 are related to the February 1988 compensable injury and that these symptoms resulted in an inability to work. We are able to make these findings.

As noted in the background, several medical practioners have expressed their opinions about the probability of the worker’s 1988 compensable injury being causally related to his later symptoms in 2005. In considering these opinions as well as the worker’s evidence at the hearing and the subsequent evidence provided by the worker’s family physician, we find, on a balance of probabilities that the worker’s symptoms in 2005 are causally related to his 1988 compensable injury.

The worker has told his medical practioners and the WCB that since his 1988 accident he has remained symptomatic in both his chest and his mid back. The worker’s complaints from 1988 to 1996 cannot be verified through medical chart notes as his family physician at that time has since passed away and the records are not retrievable. This tribunal does not however require written confirmation of oral evidence. Oral evidence suffices. In this case, the worker’s evidence of ongoing symptoms has been confirmed as of 1996 by his family physician at that time. His family physician and his chiropractor have also explained that these symptoms are consistent with the worker’s mechanism of injury in 1988. This was also the finding of the WCB chiropractic advisor.

Further, though the worker has suffered other injuries that might impact on his overall condition, the standard of proof before us is a balance of probabilities. We do not therefore need to be “convinced” that the 1988 accident is the cause of the worker’s symptoms; we only need to find that it is more likely than not. In reviewing the evidence, we find that it is more likely than not.

We also accept that the worker was unable to return to his full time regular employment as a truck driver on May 18, 2005 as a result of his 1988 compensable injury. The WCB chiropractic advisor, the worker’s treating chiropractor and the functional abilities examiner all indicate that driving truck would cause the worker compressive forces on his spine. Though the WCB chiropractic advisor did not find any objective physical findings to take him off work in 2005, this is not the finding of the functional abilities examiner who performed the FCE. We place more weight on the FCE which tested the worker through a series of physical tasks. This FCE is also consistent with the worker’s evidence at the hearing that he was finding it increasingly difficult to drive truck due to the constant spasm in his mid back.

Based on the foregoing, we find on a balance of probabilities that the worker’s symptoms in 2005 were causally related to his February 1988 compensable injury and resulted in his inability work as of May 18, 2005. We therefore find that the worker is entitled to temporary total disability benefits beyond May 18, 2005.