The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

This appeal deals with claim acceptability for a low back condition. Central to this issue, is whether the worker’s low back condition is related to an accident at work. The worker says that it is. He says that on January 20, 2004 he felt a sharp pain in his low back after twisting with a pallet of wood in his hands. The employer disputes that the worker had an accident as alleged. It says that the worker’s low back condition is due to degeneration.

The onset of the back pain

The onset of the worker’s back pain has been reported by the worker on several different occasions:

• The worker filed a claim for compensation on March 11, 2004. The claim indicates that his doctor told him his injury was related to an accumulation of heavy lifting at work.

• On April 1, 2004 the worker told a WCB adjudicator that on about January 20, 2004 he lifted a stack of 20 bottom drawers to place on the saw table for cutting and felt a sharp pain in his back. Prior to this incident he did not have any problems with his back or left leg. The worker did not report the injury to his employer immediately as he was afraid of being laid off. He did however go to his doctor. He continued to work at his regular duties and returned to see his doctor in March 2004.

• On April 8, 2004 the worker told his WCB case manager that his back began to bother him in October 2003 though there was no specific accident on that date. He reiterated that on January 19, 2004, when lifting a stack of 20 drawers, he felt a sharp pain in his back.

• In June 2004 the worker wrote to the WCB stating that his “injury was not an accident but…a gradual injury developed throughout my work”.

• At the hearing the worker reiterated that he felt a sharp pain in his low back on January 20, 2004. He testified that this happened when lifting and twisting with a pallet of wood at waist height. He conceded that he did have some back stiffness prior to January 20, 2004. The worker also testified that his condition has not changed since 2004.

The Medical Evidence

• The doctor’s first report to the WCB is dated March 11, 2004. It indicates that he saw the worker on January 20, 2004 for a work-related accident on October 24, 2003. The worker told him that he had a gradual onset of low back pain due to what he thought was due to repetitive lifting and bending.

• X-rays taken January 20, 2004 revealed severe L4-L5 disc degeneration; the L5 was completely sacralized and there was marked narrowing of the L4-5 disc space with an associated vacuum cleft and sclerosis of the adjacent vertebral body and plates.

• An April 4, 2004 CT scan revealed a left-side L5-S1 disc herniation related to a markedly degenerated disc, as well as a suspected far lateral herniation at the L4-5 level.

• A November 25, 2004 report from a physiotherapist the worker had been referred to notes a history of chronic low back pain for the preceding ten years.

• A December 29, 2004 reporting letter from an orthopaedic specialist who had seen the worker indicates that the disc prolapse (or herniation) was degenerative in nature.

• An April 20, 2005 report from a certified athletic therapist noted a history of a low back injury which kept him off work for about 5 months; he was lifting at work and turned to his right when he experienced pain in his low back. The diagnosis was mechanical low back pain.

• A July 28, 2005 MRI revealed a left-sided annular tear at the L4-5 with some minor narrowing of the neural foramina, a left posterolateral disc herniation at the L5-S1 which might have been contacting the descending left S1 nerve root, as well as increased signal intensity consistent with degenerative change.

• A November 16, 2006 narrative report from the doctor notes that when he saw the worker on January 20, 2004 the worker complained of back pain of one month’s duration which was associated with stiffness in the morning.

Analysis

Subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”) provide that to be eligible for compensation a worker must have had an injury by accident arising out of and in the course of their work.

In the case before us, we are unable to find, on a balance of probabilities, that the worker had an injury by accident arising out of and in the course of his work.

The medical evidence overwhelmingly indicates that the worker’s condition is due to pre-existing degenerative disc disease. This is a natural condition which progresses over time. Though injuries can be superimposed on pre-existing degenerative back conditions, we are unable to find that this happened in the case before us.

Indeed, there is no consistent reporting by the worker about an acute incident happening on January 20, 2004. Further, there is no medical evidence to suggest either an aggravation or an enhancement of the pre-existing condition occurring at the workplace.

For these reasons, we are unable to find that the worker suffered an accident arising out of and in the course of his employment. His claim is therefore not acceptable.