Decision #63/08 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s right hip condition and an accident arising out of and in the course of his employment.
The worker claimed that he injured his right hip on July 28, 2007 from driving on rough roads during the course of his employment. The claim for compensation was denied by primary adjudication on the grounds that a cause and effect relationship did not exist between the diagnosis and the worker’s work activities. Review Office confirmed that the claim was not acceptable due to the worker’s delay in reporting the accident to his employer, his delay in seeking medical treatment and his inability to confirm that anyone was aware of his ongoing problems. The decision made by Review Office was appealed by a worker advisor on the worker’s behalf. A hearing was then held on April 16, 2008 to consider the matter.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On August 20, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for right hip pain that occurred on July 28, 2007 which he related to “…driving on rough roads which causes bouncing of my seat and straining my hip.” The worker indicated that he did not report his injury to his employer nor did he seek medical treatment until August 13, 2007 as he thought the pain in his hip would go away on its own.
The employer’s accident report stated that no incident had been reported by the worker concerning his hip. The worker indicated that his hip hurt while he was driving and that he went to see a doctor who encouraged him to claim benefits through the WCB. The employer further indicated that the worker had worked for the company less than two years, however, the worker had been driving truck for 35 years. The employer asked the WCB to investigate the claim on the basis that “He claims that three weeks ago he was driving for us and he felt a pain in his hip, then on August 11, he was driving his own personal vehicle and the pain struck again.”
On September 7, 2007, the employer’s representative advised the WCB that the worker at first never mentioned WCB but rather was looking at short term disability benefits. After the worker went to see his doctor, he requested more information about short term disability benefits and once informed of the amount, he decided to go with a WCB claim.
On September 13, 2007, information was received which stated that the worker trained and operated a glider plane as an extra-curricular activity and that he was involved in a glider plane accident about a month and a half ago.
A Chiropractor’s First Report showed that the worker attended for treatment on August 13, 2007. The chiropractor noted that the worker was driving a double loader semi and experienced shooting pain in the hip and knee, hip and thigh and that his leg went into spasm. The diagnosis rendered was a right gluteal bursitis/tendonitis.
In a medical report dated September 10, 2007, the attending physician stated that he saw the worker on April 18, 2007 and then on August 15, 2007. The physician noted that the worker had no pain in his hip when he saw the worker. He stated that an x-ray done on August 16, 2007 of both hips were within normal limits.
On September 5, 2007, the case was referred to a WCB chiropractic consultant for an opinion as to whether or not the current diagnosis correlated with the worker’s described mechanism of injury. The adjudicator noted that the worker drove approximately 552km daily, four days on and then two days off. Some weeks he worked four days and other weeks five days. The worker stated that the roads are rough and there was a lot of bouncing, jarring, and repetitive motion. The worker was also required to do heavy lifting for about one hour a day, loading and unloading freight. The employer described the worker as a switch driver which meant that he drives to a specific location, jumps into another truck and leaves. Physical labour was very limited. The employer stated that lifting involved a tarp that has to be pulled back and forth which is done once per day.
In response to the adjudicator’s query, the chiropractic consultant stated,
“In my opinion, the diagnosis is not a good match for the mechanism of injury or the description of development. Tendonitis/bursitis can develop suddenly when accompanied by significant trauma, which did not occur in this case. In other cases, in the absence of trauma, there is a more gradual development of symptoms over days, weeks, or months. In my opinion, the sudden development of this condition in its full severity is, on the balance of probabilities, not related to the claimant’s workplace accidents.”
Based on the opinion expressed by the chiropractic advisor, the worker was advised on October 12, 2007 that his claim for compensation was denied as the WCB was unable to establish a relationship between the development of his tendonitis/bursitis condition and his employment.
In early November 2007, the worker appealed the case manager’s decision of October 12, 2007. Included with his submission was a November 4, 2007 letter from the treating chiropractor in support of the position that the worker’s gluteal bursitis/tendonitis condition was a trauma associated with traveling over rough roads during construction with a very heavy transporter; and that her clinical findings supported the diagnosis and that the timeline was appropriate for the worker’s injury. As the worker’s submission contained new information as well as service concerns with the WCB, Review Office referred the file back to primary adjudication for further handling.
On November 9, 2007, a sector services manager asked the worker for additional information concerning his right hip. The worker indicated that he had been driving his truck and hit a particularly deep pothole on the highway resulting in a jarring of his hips into the seat causing pain and almost losing control of his vehicle. He could not recall the exact date or time of the incident. He believed that the date was about two weeks before July 28, 2007. He recalled that the incident occurred a few times over the course of the drive. He thought he mentioned the incident causing his pain to another co-worker but could not be certain. The worker further indicated that he was a passenger in an airplane in early July 2007 that was unable to take off. The incident did not involve any injury or incident that required medical services.
In a decision dated November 14, 2007, the worker was advised by the sector services manager that the evidence on file did not establish that an injury occurred at work to his right hip. Subsections 4(1) and 17(5) of The Workers Compensation Act (the “Act”) were referred to in the decision. The worker disagreed with the decision and the case was referred to Review Office for consideration.
Prior to considering the worker’s appeal, Review Office consulted with a WCB chiropractic consultant on November 21, 2007 regarding the causative factors for gluteal tendonitis/bursitis. He advised Review Office that these problems can occur acutely in conjunction with a sudden twist, lift or trauma such as a fall. He felt that this type of injury was more common to occur gradually due to overuse and perhaps postural factors or muscular imbalances. Prolonged repetitive activities such as long distance running, cycling or similar activities were some examples.
On November 21, 2007, Review Office outlined the position that the evidence did not support that the worker sustained an accident arising out of and in the course of his employment. It found that the worker’s delay in reporting the injury to his employer, his inability to confirm anyone was aware of the worker’s ongoing problems and the delay in seeking medical treatment lead it to uphold the decision reached by primary adjudication that the claim was not acceptable.
On December 17, 2007, a worker advisor appealed Review Office’s decision on the worker’s behalf and an oral hearing was requested. He later provided the Appeal Commission with a medical report dated December 7, 2007 in which the physician outlined his opinion regarding the etiology of the worker’s hip condition. He stated that on a balance of probabilities, it was likely related to his prolonged sitting and bouncing which occurred at the workplace.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and the policies of the WCB’s Board of Directors. As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where personal injury by accident arising out of and in the course of employment is caused to a worker. Subsection 1(1) defines accident as
“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; “
Worker’s Position
The worker attended the hearing with a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.
The worker advised that his regular route included about 30 miles of construction. He advised that he drove over the road twice each trip. Regarding the cause of his injury, the worker advised that he remembered a specific incident that occurred as he crossed a bridge in the construction area on July 28. He said the bridge road surface was approximately six to eight inches higher than the rest of the road because the pavement had been removed in front of the bridge. This caused an impact which resulted in a painful hip and leg. He could not recall if the impact caused him to hit the truck’s ceiling. He advised that the truck seats were not in good condition but that he did not record this on the driver’s check list or in the log book.
Regarding his current condition, the worker advised that the injury got better but never completely healed. He advised that he is now working for a different employer.
The worker’s representative advised that the cause of the worker’s injury was a combination of both a rough road on a repetitive basis, bouncing and jarring, and the incident with the bump at the bridge. Regarding the delay in reporting the incident, the representative advised that the worker had hoped his hip would get better. When it did not get better the worker attended a chiropractor who recommended he contact the WCB.
The worker’s representative noted that the treating chiropractor and the consulting sports injury physician have provided opinions that the injury is related to the worker’s employment.
Employer’s Position
The employer attended the hearing with an advocate who made a submission on the employer’s behalf. The employer’s benefits administrator also attended.
The employer’s representative advised that the employer is not disputing that the worker had pain in his right hip, but does not consider that the evidence establishes the pain was due to a workplace injury. The employer’s representative noted that the worker sought medical attention after an off-work incident with his own vehicle. She indicated that the definition of accident had not been met. She noted the opinion of the WCB chiropractic consultant that he did not see a relationship between the clinical presentation reported by the treating chiropractor and the possible cause of the injury.
In a closing statement, the employer representative noted that the worker described the day of the alleged incident as just another day trucking. She stated there has been no confirmation of a specific event that would meet the test of accident. The employer representative acknowledged that claims are accepted on an accumulative exposure to risks. She stated that the evidence in this case is inconclusive and does not meet the test of accident.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For this appeal to be successful, the panel must find that the worker’s injury arose out of and in the course of his employment. The panel did make this finding. The panel finds, on a balance of probabilities, that the worker sustained personal injury from an accident arising out of and in the course of employment and accordingly the worker’s claim is acceptable.
The panel notes that the worker initially reported that his injury related to driving a truck over rough roads. He later related the injury to specific incidents, hitting a pothole and hitting an elevated bridge surface. The panel finds these attempts to identify a specific incident were in response to the position and questions of the WCB. However, the panel finds, on a balance of probabilities, that the injury was not caused by a specific incident, although accepts that a specific incident occurred on July 28, 2007, when the worker’s truck drove onto a bridge. The panel finds that the injury was due to the constant bumping and jarring that the worker was subjected to each time he drove the truck on the rough northern roads and particularly through the construction area. In effect, the worker suffered a series of traumas, some large (for example; when he hit the bridge) and some small, as he drove over the rough roads. The panel finds that the worker’s injury is consistent with this mechanism of injury.
In reaching this decision, the panel places significant weight upon the opinion of the treating chiropractor. The chiropractor wrote on October 22, 2007 that she feels the worker’s duties as a truck driver created his injury of gluteal bursitis/tendonitis. She noted that the trauma is associated with traveling over rough roads during construction with a heavy transporter. She stated that the clinical findings support the diagnosis and that the timeline is appropriate for the injury.
The panel notes that the consulting sports injury physician commented in his December 7, 2007 report that “… I feel on the balance of probabilities, this is likely related to his prolonged sitting and bouncing which occurred at his workplace.” The panel further notes that the mechanism of injury accepted by the panel is consistent with one of the etiology scenarios identified by the WCB chiropractic consultant.
The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of May, 2008