Decision #33/09 - Type: Workers Compensation

Preamble

On May 8, 2007, the worker filed a claim with the Workers Compensation Board (WCB) for back difficulties that he attributed to his work activities as an apprentice carpenter. The claim for compensation was denied by primary adjudication and Review Office as both were unable to relate the worker’s back difficulties to his work activities. An appeal was filed by the worker through the Worker Advisor Office, and a hearing was held on December 17, 2008, to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker reported on May 8, 2007, that he injured his low and upper back at work on October 13, 2006. He stated that he first noticed symptoms the next morning, on October 14, 2006, when he tried to stand up while getting up from his sofa. As his symptoms appeared over the weekend, he reported the injury to his supervisor on October 16, 2006, and attended a chiropractor for treatment. The worker believed that his back injury was caused from repetitive pulling, pushing, lifting, climbing, wearing a heavy tool belt and safety harness during his employment as an apprentice carpenter.

The employer’s injury report dated May 14, 2007, stated that the worker’s supervisor recalled the worker complaining of his back but he did not relate it to any particular injury or accident. The worker indicated to his supervisor that “he may not be cut out for this type of work.”

On May 29, 2007, a WCB adjudicator spoke with the worker by telephone. The worker stated that for approximately two weeks prior to the onset of his symptoms he was building scaffolding at a construction site. This involved building a section of scaffold, then crawling up to the next level, building another section, and so on. He could not recall any specific incident other than that while he was building the scaffold, he spent a good portion of his time bent over. He was on the top pulling up blanks which sometimes would blow in the wind. He had no symptoms prior to the incident at home other than stiffness, and he had no previous back injuries. The worker indicated that he worked his full shift on October 13, 2007. The worker said he had been told that if he wanted to continue working, he should not do construction work.

A Chiropractor’s First Report indicated that the worker sought treatment on October 16, 2006. The worker’s description of injury as outlined by the chiropractor was “strained back during exertional work and felt pain when getting out of bed the next day.” The diagnosis rendered was lower dorsal strain.

On November 1, 2006, the attending physician reported that the worker performed lifting at work and the diagnosis rendered was mechanical low back pain/SI.

In a June 5, 2007, decision by primary adjudication, the worker was advised that his claim for compensation was not acceptable as there was insufficient evidence to establish a relationship between the development of his back difficulties and an accident “arising out of and in the course of” his employment.

Subsequent file records consisted of bone scan, CT scan and MRI results. Reports were also submitted by the treating physician as well as a physiatrist who diagnosed the worker with myofascial pain syndrome.

On August 15, 2007, the worker was advised by primary adjudication that the new information had been reviewed and no change would be made to the decision of June 5, 2007, based on the following rationale:

  • The onset of pain occurred while the worker was getting up from his couch on October 14, 2006, which prompted him to seek medical attention.
  • The worker reported no other symptoms other than stiffness in the weeks preceding October 14, 2006. Primary adjudication was unable to corroborate the worker’s report of stiffness as no treatment was sought and nothing was reported to the employer until October 16, 2006.
  • While the worker had multi-level disc bulging, his neurological examinations have been normal. The worker was diagnosed with a back strain, mechanical back pain and myofascial pain syndrome.

On March 11, 2008, the worker appealed primary adjudication’s decision to Review Office.

In a June 5, 2008, decision, Review Office confirmed that the claim for compensation was not acceptable as it was unable to conclude that the worker’s condition on October 14 while at home and exiting his couch had a relationship to the worker’s employment the week before. In arriving at its decision, Review Office considered the following:

  • A definite diagnosis had not been made as different physicians have indicated a back strain, mechanical back pain and myofascial pain syndrome. The worker was involved in a physical job but other than occasional stiffness, he did not have symptoms of pain in the workplace. The onset of serious symptoms occurred while the worker was getting off his couch at home on October 14, 2006.
  • The supervisor’s evidence that the worker did not go into detail as to what caused his sore back and the fact that when the worker advised him of his back symptoms, he was in a laid off situation.
  • There was no evidence to relate the worker’s disc bulge scenario to anything other than an underlying condition.
  • The rheumatologist’s evidence that the worker needed to lose weight and be more active. The treating physician and chiropractor felt that this could be a situation where the worker’s back condition at home on October 14 has a relationship to the strenuous type of employment he did in the week leading up to the presentation of back symptoms.

On June 25, 2008, a worker advisor appealed Review office’s decision on the worker’s behalf and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information from the worker’s treating physician. This information was received and was forwarded to the interested parties for comment. On February 11, 2009, the panel met to discuss the appeal and rendered its final decision.

Reasons

Applicable legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations, and policies made by the WCB Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

The issue in this case deals with the issue of causation, in particular whether there is a causal link, on a balance of probabilities, between the worker’s performance of his job duties and his reported mid and lower back difficulties.

The Worker’s Position:

The worker was assisted at the hearing by a worker advisor. The worker provided his work history over the year prior to October 2006 as an assistant carpenter on a number of projects in Winnipeg. For the most part, his job duties involved building and dismantling wooden forms (used for concrete pours), but in the final 2.5 weeks before he left work, he was building scaffolding full time on the job site. This was his last job duty before stopping work. He worked as part of a crew, and his role was to work at the top of the scaffold, where he was required to use a rope to pull up scaffold pieces (blanks) from ground level. The end pieces were approximately 40 pounds each, and the scaffold towers would be built up to a height of four stories (over 40 feet). The worker would also haul up wood or floor planks which became the floor of each level. These would be lifted from floor to floor by the worker, and ranged from 50-60 pounds (wood) to 20-30 pounds (aluminum). Once a level was completed, he would crawl up to the next level and haul up more blanks. This process would be repeated until each tower was completed. The worker demonstrated that in lifting with the rope his back was forward flexed to about a 45 degree angle, and his arms would be outstretched further, in order to control the piece coming up, especially because of windy conditions.

The Employer’s Position:

A representative of the employer attended the hearing, and was assisted by an employer advocate. The advocate advised that they agreed with the reasons provided by Review Office in finding the claim not to be acceptable. The advocate also noted that the MRI findings on April 3, 2007 noted irregularities at T12 and L2 areas of the spine (Schmorl’s nodes) which are pre-existing and non-compensable in nature, and that these two areas are consistent with the worker’s physical complaints.

In response to questions from the panel, the employer representative confirmed that the worker had described his job duties accurately. The employer also confirmed that the worker was not laid off on his last day of work (Friday, October 13, 2006). Rather, the layoff discussion took place in mid-November 2006, and was recommended by the employer to the worker, in order to facilitate the worker’s access to other benefits while he was off work. If the worker had been available, he would have been working the following Monday.

Analysis:

For the panel to accept the worker’s claim, we would have to find that the worker’s performance of his job duties as an apprentice carpenter led to a compensable medical injury, on a balance of probabilities. The panel was able to make this finding. Our reasons follow.

The evidence on file and presented at the hearing provided the panel with a full understanding of the worker’s job duties. The panel notes that the worker’s job duties required him to spend considerable periods of time with his back in suboptimal positions. In particular, the worker used a rope (hand over hand) to haul up bulky blanks over varying distances in an extended forward flexion position, and then to handle and install the various scaffolding pieces. This job was done 10 hours a day, and usually 6 days a week. Both the worker and employer acknowledge a conversation on the worker’s last day (October 13, 2006), where the worker advised that his back was sore.

As to the medical evidence on the file, it is clear that the worker describes his pain complaints the next day as being muscular in origin. He got off the sofa in a normal way, and had immediate pain in the area below his left shoulder and at his left lower back near his beltline. His condition worsened over the course of the day and into the next day (Sunday). He left a message with a chiropractor for an appointment on Monday, and was diagnosed that day with a muscular strain. The panel notes that various medical practitioners later in the file continued to query muscular or myofascial pain origins, and that no practitioner has related the worker’s pain complaints to the Schmorl’s nodes noted on the worker’s MRI scan.

Although prior levels of adjudication have expressed concern over the presence or absence of a definite diagnosis, the panel does nonetheless find that the worker did suffer a muscular injury to his mid and lower left back that was causally related to his job duties, sufficient to establish an acceptable claim for a workplace injury under the Act. The panel makes no findings regarding the worker’s ongoing pain complaints.

While the issue of the presence of an acute incident has been raised at various points in this claim, the panel does not view this as a critical element in its decision. Rather, the panel finds that the worker had, over time, been developing an “overload” muscular injury caused by the prolonged abnormal postures he was assuming while working in building the scaffolding. Further, the panel notes that it is not uncommon for muscular injuries to become symptomatic the day following, and finds that the simple act of getting up off a sofa is not the type of event that could in and of itself lead to the type, nature and extent of the muscular symptoms that were experienced by the worker.

Based on these findings, the panel finds on a balance of probabilities that the worker has met the criteria for a workplace accident under subsections 1(1) and 4(1) of the Act. Accordingly, the worker’s appeal is accepted.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 9th day of March, 2009

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