The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

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

The worker’s position:

The worker appeared on his own behalf at the hearing. He stated he had worked at this job previously with no problems in 2005 until he left in 2006 for a short term as a long haul driver, then returned in August 2006 as the only person doing heavy recoveries and heavy tow operations that involve semi trailers and large trucks. He asked the panel to accept his claim that the type of work duties he was doing and the weights of materials repeatedly contacting his chest caused his personal injury by accident which arose out of and in the course of his employment.

Analysis

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker’s injury of costochondritis arose out of the work duties and during the course of the worker’s employment. On a balance of probabilities, we are able to make that finding.

At the hearing, the worker provided evidence of the various duties involved with heavy recovery, heavy towing and related duties. He estimated the weights to vary between 50 – 150 lbs and he was on call 24 hours per day for 7 days per week. In some cases, tows were required after 4 hours sleep. The work was heavy and fairly constant due to the area that he covered, from the Saskatchewan border east to Portage la Prairie, as far north as Swan River and south to the US border.

He noted that heavy recoveries are done occasionally with a high of four in one month, and his overtime amounted to 600 hours per year. He also related that a recovery from a motor vehicle accident (MVA) would average 8 hours and depending on its severity, could take up to 30 hours. He further stated that he worked alone for the greater portion of the time as he was the only one qualified to do the job with his employer.

The worker testified in detail as to how a MVA recovery of a semi trailer was accomplished. He removed a number of approximately 100 lbs, 10 foot long chains from a storage box, threw them over his shoulder and climbed up the side of the overturned semi without a ladder. These chains would be constantly bouncing off his chest as he crawled up 10 feet of the frame to feed the chains through the framing. He would need to climb over and around tires, brake pods, shafts and portions of the frame to be able to feed the chains down into the frame. He would also lie on top of the tires or hang over the edge laying on his chest to hook up the chains properly.

His evidence was that other times he would have to throw a chain to the top of the semi’s frame or tires with his right arm which regularly resulted in the end swinging back and hitting him in the chest. He then pulled out winch cables and 50 to 75 lb winch blocks to hook to the chains which were used roll the truck upright. He would loop the chains and feed them into the winch blocks at various heights on the wreck and they too would be bouncing against his chest when he had to climb.

The worker further testified that once the truck was upright he would remove the drive shafts to tow the semi from the scene. This required him to crawl under the truck, lay on his back to disconnect it from the differential and transmission then pull out the shaft which could then fall about two and a half feet onto his chest. Often, the drive shafts would have to be cut or pressed out in order to pull them out of the joint and he would have to fight with it before it would come free.

It was the worker’s evidence that these shafts weighed about 100 to 120 lbs, were 12 inches in diameter and 3 to 5 feet in length depending on the semi. If the highway was not busy he would be able to remove the drive shaft while the semi was on its side but the majority of the MVA’s required him to right the vehicle and clear the highway first, then remove the drive shaft on the gravel shoulder from underneath. He further testified that there was no better way to accomplish the removal of the drive shaft when at an MVA site than to let it fall and land on his chest.

The worker also noted that during a regular tow of a truck or semi, if he was unable to lift the truck he would have to remove the drive shafts by laying on his back in the same manner described above. This occurred regularly from once a day up to three times a day. When drive shafts fall, sometimes they can be controlled or buffered but when they are stuck, they may fall unexpectedly and the impact to his chest would be much greater.

Once a wreck had been prepared for towing, he was required to clean debris from the road by lifting large pieces onto the truck bed, so local authorities could declare the highway open. It was his evidence that when a trailer was loaded he would be required to offload the product before it could be righted, with help at times from community or local groups.

The worker provided evidence specific to the dates in July 2007 and December 2007 when his most serious pains required him to attend a hospital for treatment. It was his evidence that on the July 2007 date, he performed a significant amount of heavy work. After lunch, he had replaced a cable on the winch of the large tow truck. This new cable was one half inch by 250 feet weighing 500 lbs, coiled in a thick bundle which he dragged from the shop to the yard and laid out prior to feeding the end into the winch spool. It was later about 8:00 PM, that he started to have the symptoms that became so severe he went to hospital about 10:00 PM.

On the December 2007 date, his evidence was that he was explaining to his boss how to fix one of the removable L shaped tow bars. He had slid the 50 lb bar sideways off the tow frame and lifted it up when he felt an extremely sharp pain in his chest. He sat down and the difficulty breathing and chest pain did not go away so he went to the hospital for treatment.

The worker testified that since January 2008, he has tried various other jobs but the symptoms returned when he did anything physical such as heavy lifting, pulling and pushing. His specialist provided injections that gave him relief of pain and symptoms but when triggered by activity such as shoveling snow, the pain immediately returned. He is currently involved in a non physical position doing sales.

From available reference materials such as standard medical dictionaries and on-line medical information web sites, the condition of costochondritis can be simply understood as damage to a person’s connecting cartilage of the ribs at the breast bone. The worker also brought web based articles on Tietze’s syndrome (another name for costochondritis) which he referred to in his presentation. The articles identified the potential causes as including repeated minor trauma to the chest wall, physical strain or minor injury, repeated impacts to the chest and strain to the rib cage of short duration. He pointed to the specific parts of his duties that were consistent with the literature as being sources of the trauma that led to his injury.

In the panel’s opinion, the worker’s claim for compensation should be accepted. The panel accepts that the weights, and heavy materials contacting the worker’s chest caused repeated trauma to his chest wall which led to the condition of costochondritis. We further accept the cardiologist’s opinion of October 14, 2009 that stated “…this syndrome is related to repeated overuse of the right arm from his previous occupation and I would certainly agree that he should not return to any physical labor (sic) that entails heavy lifting or pushing and pulling.”