Decision #79/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for low back and tailbone pain which he related to prolonged sitting while driving a semi-truck through Canada and the United States. The worker’s claim for compensation was denied as both primary adjudication and Review Office were unable to find that the worker suffered personal injury by accident arising out of and in the course of his employment. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 19, 2009 to consider the matter.

Following the hearing, the appeal panel requested additional information from a physician, chiropractor and physiotherapist relating to the worker’s prior and current medical condition. This information was later received and was forwarded to the interested parties for comment. On June 8, 2009, the panel met to render its final decision on the issue under appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker reported that he suffered injury to his low back and tail bone area in early November 2007 which he thought was related to prolonged sitting while driving a semi-truck. The worker reported that he drove all over the United States and Canada. He spent 60 to 70 hours per week driving the truck. He sat in an air ride cab-adjustable seat to fit comfort level. The seat had an air bag underneath it. The truck had a lot of air suspension and the ride was somewhat cushioned. The worker reported he experienced pain in his low back prior to November 2007 which increased over time. He had pain in his low back to the tip of his toes on the right side. The worker indicated that he did not report an injury to his employer until March 11, 2008 as he did not think anything of it and did not think it would result in this. He was able to continue performing his duties and thought he could continue working.

The employer’s injury report stated that a specific injury was not reported by the worker. The worker came in to work stating that he had no feeling in his leg and that it may be due to a previous WCB claim of falling off a trailer. The worker asked what he should do and was advised to make an appointment with a doctor. The employer felt that the worker’s current condition was not related to his employment activities as the worker reported no injury, pain or problem related to his job.

Medical information showed that the worker sought treatment from a chiropractor on January 10, 2008 and was diagnosed with a traumatized lumbosacral disc, sciatica and possible disc herniation. The description of injury was “prolonged sitting many hours every day driving a truck.”

The worker was treated by a physiotherapist who reported progressive low back pain with driving that increased in severity. On March 13, 2008, the pain shot down the worker’s right leg. The diagnosis rendered was query right disc protrusion with severe radiculitis. A CT scan was ordered.

On April 2, 2008, the worker was advised that his claim for compensation was denied. It was indicated to the worker that in the WCB’s opinion, the problems he experienced with his back (a possible disc protrusion) was not considered to be directly related to his driving duties given that his truck seat was mechanically sound and was not in need of repair or replacement.

On June 25, 2008, the worker advised the WCB that he recently underwent a discectomy at L5-S1.

On July 31, 2008, the worker appealed the adjudicator’s decision to deny his claim. The worker advised that a CT scan confirmed that he had a right lumbar disc protrusion. He indicated that because of his activities of strapping down and prolonged sitting, his back problems progressed to the stage of nerve root compression. On August 12, 2008, the worker submitted additional evidence for consideration.

In a memorandum dated August 21, 2008, a WCB adjudicator indicated that a new claim was being created given that the worker was now relating his back problems, which resulted in surgery and time loss, to a specific incident occurring in the USA on February 15, 2008.

In a submission to the WCB dated September 18, 2008, a worker advisor made reference to log books to show that the worker had an increase in his driving duties for a period of time before November 2007, that being October 2007. It was the worker’s position that this information supported that his work duties caused his low back condition to become aggravated which continued until he had to stop working. Based on this new evidence, the worker advisor felt that the worker’s increase in work duties satisfied the definition of an accident as the “thing that is done and the doing of which arises out of, and in the course, of employment… and as a result of which a worker is injured.” It was also felt the worker’s claim complied with Section 4(1) of The Workers Compensation Act (the “Act”) as the first medical report from the attending chiropractor provided evidence of the worker’s condition being related to his work duties of prolonged sitting.

In a memorandum to file dated October 2, 2008, the WCB adjudicator stated that based on her review of submissions of mileage from both the worker and employer, there did not appear to be a significant increase in the number of miles the worker traveled over the course of 2007. Therefore, the recent submission of mileage did not support that the worker’s back symptoms can be directly related to the number of miles he drove in 2007 as was suggested in the worker advisor’s submission. This decision was relayed to the worker advisor in a WCB letter dated October 17, 2008.

In a submission to Review Office dated November 3, 2008, the worker advisor pointed to evidence on file that the WCB erred in their assessment that there was no significant increase in miles driven from one month to the next to account for the worker’s back symptoms. The worker advisor pointed to evidence provided by the attending chiropractor and physiotherapist to support that the worker related his progressive back pain to driving and sitting many hours and using his right leg on the accelerator.

On November 20, 2008, Review Office stated that it did not find evidence to establish that the worker suffered personal injury, either a disc injury or an aggravation to a pre-existing condition, by accident arising out of and in the course of the worker’s employment. Review Office said it did not disagree that sitting for extended periods of time can make an existing problem symptomatic or can increase a person’s discomfort but that did not mean that it had “caused an injury to happen” or “cause a further injury of an existing problem.” There was no evidence that the worker had an “accident” that gave rise to his disc protrusion in the L5-S1 area with resultant compression for which the worker had surgical treatment in June 2008. Review Office noted that the worker’s air seat was in good working order and could be adjusted for comfort level. It stated that an increase in mileage leading to an escalation in his symptoms was not an “accident” nor was stepping on the accelerator. When the worker filed his WCB claim, he stated he had “no clue” as to what caused his injury; that there was “no specific thing except for prolonged sitting.”

On December 10, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

In this appeal, the panel must determine whether the worker was involved in an accident arising out of and in the course of his employment. The definition of “accident” is provided in section 1 of the Act as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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.

The worker’s position:

The worker was represented by a worker advisor. It was submitted that the evidence establishes that the worker suffered a personal injury by accident which was related to his employment, and that therefore his claim should be accepted. The worker reported that he first noticed symptoms in early November, 2007, while he was working as a long distance truck driver. His driving duties, which included prolonged sitting in his truck, pressing on the accelerator (which caused pulling on the muscles in his lower back) and loading/unloading/tarping, accelerated his back condition resulting in symptoms which rendered him disabled from working as of March 2007. It was also submitted that there was an increase in the work duties being performed by the worker in early 2008. Overall, the worker’s position was that there was a direct correlation between the onset of the disabling symptoms and the work duties.

The employer’s position:

A representative from the employer appeared at the hearing. The employer supported the decision of Review Office and submitted that the evidence disclosed nothing out of the ordinary that could be considered an accident. The worker had good seating and drove his truck normally for years with no significant variation in his driving miles. It was submitted that an accident could not be established and that therefore the claim should not be accepted.

Analysis:

The issue before the panel is whether the worker’s claim related to his low back condition which necessitated a discectomy at the L5-S1 level should be accepted. In order for the worker’s appeal to be successful, the panel must find the worker’s job duties caused or contributed to his herniated disc which was surgically repaired on June 12, 2008. After reviewing the evidence as a whole, we are not able to make that finding.

At the hearing, the worker described his work duties and identified prolonged sitting, pressing the accelerator, an increase in mileage and loading duties (which involved strapping loads and moving chains) as the activities which caused or exacerbated his symptoms. On a balance of probabilities, the panel is unable to find a causal connection between the performance of these duties and the worker’s herniated disc. In coming to this conclusion, the panel relies on the following:

  • Although the worker’s recollection at the time of the hearing was that he first started to experience the “pins and needles” pain in November, 2007, the medical reports suggest otherwise. The worker saw both his treating physician and his chiropractor on various occasions in January and February of 2008, and while both treatment providers note right sided low back pain, there is no mention of neurological symptoms in either of their reports. It was not until the worker’s March 14, 2008 attendances at both offices that neurological references to “pins and needles” and “tingling and pain” began to appear in the reports.
  • The panel does not view prolonged sitting and pressing the accelerator as the type of activity or movement which could cause or contribute to a herniated disc. The worker’s own evidence was that pressing the accelerator caused the muscles from his leg up to his lower back to become tense. While the panel accepts that the muscles may be affected by these actions, we do not see the actions as being causative of a herniated disc.
  • The worker described loading activities which included lifting heavy chains, tarping and strapping. These activities, however, were performed only intermittently, and the worker

was not able to identify a specific instance where he noted a change in his back condition as a result of doing these duties.

  • Temporally, mid-March, 2008 does not coincide with any change in the worker’s job duties. He had been performing the same type of work for many years prior. The worker had submitted material relating to an increase in mileage, but there was some question as to whether there was truly an increase in duties, and in any event, it was not contemporaneous with the appearance of the neurological symptomatology.
  • At the hearing, the worker referred to an acute event which may have occurred in February 2008 when he was moving some chains on his truck. A separate WCB claim has been opened with respect to this position and we therefore cannot deal with this argument on this appeal. We are here limited to considering whether or not the ongoing performance of the worker’s job duties caused the back injury complained of by the worker.

Overall, the panel is not satisfied on a balance of probabilities that the job duties caused the worker’s back condition. It is therefore our decision that the claim is not acceptable. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 21st day of July, 2009

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