The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The issue in this case is whether the worker’s injury arose out of and in the course of, his employment.

On November 17, 2005, the worker filed a claim with the Workers Compensation Board (the WCB) for a right hip injury that he related to prolonged sitting in his truck when working as a long haul truck driver.

The WCB denied the claim and took the position that the myofascial pain of the right hip was a general medical condition and was not consistent with the mechanism of injury described by the worker. In May 2006, Review Office denied the claim on the basis that the evidence did not establish that the worker experienced personal injury by accident arising out of, and in the course of, his employment. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on October 4, 2006. The worker appeared and provided evidence. He was represented by a worker advisor. An advocate appeared on behalf of the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker is a long distance truck driver. Prior to September 2005 he typically drove 3.5 days per week, and approximately 6,000 miles per month. In late August 2005 he purchased a truck and became an owner operator. This required him to drive up to ten days at a time, ten hours per day, and approximately 10,000 to 11,000 miles per month.

The worker first began to experience pain in his right hip and buttocks on October 3, 2005. He did not report his symptoms to his employer until November 7, 2005 as he thought “I could work through it myself.” He filed a claim with the WCB on November 8, 2005 in which he stated that “I get the shooting pain when using the gas pedal. It gets worse after being on the road for a few days.” The employer disputed the claim on the basis that there had been “no specific accident reported.”

On November 7, 2005 the worker’s treating physician reported a decreased range of motion in the worker’s right hip and buttock which was “worse sitting and driving”. He diagnosed a pulled hamstring muscle and a piriformis muscle pull, and concluded that the worker was unable to work. He prescribed medication and physiotherapy treatment. A right hip x-ray revealed no significant bone or joint abnormality.

The worker was seen by a chiropractor on January 4, 2006 for low back pain radiating to his right piriformis muscle. He noted tenderness at the L4-L5 vertebral disc with radiated pain to the right buttock, and diagnosed lumbar disc inflammatory syndrome.

In a report dated February 17, 2006, the treating physician confirmed that the worker had reported pain to him “as a result of driving his transport truck.” He diagnosed the worker with a pulled hamstring and piriformis resulting in tendonitis.

In response to a request for information the treating chiropractor reported on February 17, 2006 that the worker had reported “a constant dull aching pain that worsens when sitting driving his truck”. He concluded that the worker was experiencing lumbar disc inflammatory syndrome, and that it was work related, noting that “It would appear to me that prolonged periods of sitting driving his truck, subjecting his spine to constant jarring due to road conditions has affected the patient’s lumbar disc.”

The treating physician referred the worker to a sports medicine specialist for an assessment. He concluded in a report dated February 24, 2006 that the worker was suffering from chronic gluteal myofascial pain, likely related to lumbosacral dysfunction. He observed that the “pain would be associated with sitting for prolonged periods of time where he had to operate the foot pedals.”

A WCB medical advisor reviewed the file information on March 14, 2006 and diagnosed the worker as having myofascial pain affecting the gluteal musculature.

On March 20, 2006, the worker was formally advised that his claim for compensation had been denied. The adjudicator stated that the diagnosis of myofascial pain of the right hip was a general medical condition which was not consistent with the mechanism of injury described by the worker, namely the increase in the amount of driving performed since September 2005.

The worker was assessed by a physical medicine and rehabilitation specialist on April 27, 2006 at the request of the family physician. His impression of the worker’s condition was mechanical lumbosacral pain with the possibility of right L5-S1 facet joint strain and bilateral piriformis syndrome. He noted no clinical evidence of radiculopathy.

A worker advisor appealed the WCB’s decision to deny the worker’s claim on April 7, 2006 to Review Office. She submitted that the worker’s claim was acceptable and that it complied with subsections 1(1) and 4(1) of The Workers Compensation Act (the Act).

In May 2006, Review Office determined that the claim was not acceptable, stating that prolonged sitting and increased driving or operating a foot pedal was not an “accident”, and that therefore the worker had not suffered personal injury by accident arising out of, and in the course of, his employment. This decision was appealed by the worker advisor and an oral hearing was convened.

Reasons

The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker responded to questions from the panel. The employer was represented by an advocate who asserted that there was no evidence of a work related accident and that the worker’s medical condition must have been a pre-existing one.

The evidence of the worker was that he would experience a shooting pain when pressing the gas pedal and brake with his right foot. This pain only manifested itself at a point in time when the worker had been required to nearly double his monthly mileage. He stated that in the fall of 2005 when he was taking longer trips “it was getting harder for me to sit and harder for my right foot. My right foot was aching all the time.”

The panel is satisfied on a balance of probabilities that the worker’s symptoms resulted from an accident arising out of, and in the course of, his employment. The medical evidence supports this conclusion. Each of the worker’s treating physicians reported that the worker’s symptoms were exacerbated either by prolonged driving or by the utilization of the brake and gas pedals. Most significantly, the worker had a CT scan conducted on June 12, 2006 which identified at L3-L4 a very shallow right posterolateral disc herniation. He was examined on June 19, 2006 by the sports medicine specialist who reported that the worker “equates his problems with his work from prolonged sitting as a long haul truck driver. In the absence of any other mechanism, it seems as a reasonable etiology for his disc injury and myofascial pain.” The panel notes that there was no medical evidence to the contrary to support the employer’s contention that the worker’s medical condition was pre-existing or otherwise unrelated to his work.

The panel therefore concludes that the worker’s disc herniation and right hip symptoms were related to his work as a long haul truck driver. The appeal is therefore allowed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2006