Decision #114/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his low back difficulties were unrelated to his work activities in a meat packaging plant. A hearing was held on May 3, 2011 to consider the matter.Issue
Whether or not the worker's claim for low back difficulties is acceptable.Decision
That the worker's claim for low back difficulties is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for wrist/elbow, back and neck difficulties that he related to the repetitive nature of his employment activities in a meat packaging plant. His job involved picking up and wrapping hams weighing 10 to 15 kg, he processed 2000-2500 pieces in a day.
The worker indicated that the severe pain in his wrists and elbows placed pressure on his back, and he was using his back more. The back and neck pain started in mid January 2010, and he went to a doctor on January 27, 2010.
The employer's accident report dated February 17, 2010, noted that the worker claimed that his elbows and wrists started to bother him at the end of October 2009 because he had been doing heavier duties in the packaging department. The worker reported that about a month ago his low back became sore as well. After having worked on packaging for two consecutive weeks without rotation, the worker decided to report the injury.
Medical information showed that the worker attended a chiropractor on February 2, 2010, and the accident was described as "continually lifting meat and placing them in boxes." The physician noted that the worker had a very sore low back over the sacral area and his wrists were achy all the time. The diagnosis was a lumbar strain and flexor tendinosis at the wrists.
On February 12, 2010, a WCB adjudicator spoke with the worker with the assistance of a translator. The worker reported that he had severe pain in both wrists and elbows in October 2009. There was no specific accident but it was believed that his difficulties were from repetitive work. The worker did not attend a doctor as he did not speak very much English and he was afraid to go to the doctor. He continued on with his regular duties in pain. The worker told his lead hand of his difficulties in October but he was not sure if she understood him. The worker indicated that his back problems began in mid January 2010 as he was bending. The worker said there was no specific accident but that several co-workers were aware of his difficulties.
On February 17, 2010, the lead hand advised the WCB adjudicator that nothing was mentioned to her in October 2009 and no ongoing complaints were made by the worker. She noted that the worker worked in the wrap and pack area and he remained on regular duties. In mid January, the worker missed one week of work and she later found out that it was due to his back.
On February 24, 2010, the adjudicator spoke with two of the worker's co-workers. Both recalled the worker having a backache and an elbow problem in January 2010.
On March 2, 2010, the WCB denied responsibility for the worker's claim for bilateral wrist, elbow and back difficulties as it was unable to establish that an accident occurred in October 2009 or January 2010. The decision was based on the worker's delay in reporting to his employer and the delay in seeking medical attention.
The worker had a CT of the lumbar spine on March 28, 2010. The impression read: "Right-sided disc protrusions at L4-L5 and L5-S1 compressing the traversing nerve roots at these levels."
On May 12, 2010, a worker advisor advised the WCB that he spoke with the worker with the assistance of a translator and the following information was recorded: "On January 15, 2010 the claimant was working by himself. He normally works with two others, so he had to do the work of three people. He remembers his back being much worse than it was prior to the start of his shift. He is relating the increase in his back pain to frequently bending and lifting ham bones throughout the course of that shift. The co-worker mentioned his back problems to "E. and L.S." The worker advisor noted that due to the language barrier, the worker was unable to express himself properly so he never mentioned the incident on January 15, 2010 to the adjudicator.
In a memo dated May 21, 2010, the adjudicator noted that he spoke with the worker with the assistance of the first translator and explained what a specific accident was to the worker. The worker indicated that he did not tell the worker advisor he had a specific accident in January 2010 in regards to his back. Rather, the worker was relating his back difficulties to using his back more and bending because of pain in his wrists and elbows.
In a memo dated July 15, 2010, the adjudicator recorded that he spoke with the worker's lead hand. On January 15, 2010, the worker was assigned to work on shoulders, which involved the same duties as hams, but shoulders were lighter, weighing 10 to 15 lbs. At this time, the worker did not report any back difficulties.
On July 15, 2010, the worker was advised that no change would be made to the March 2, 2010 decision as the WCB was unable to confirm the information provided by the Worker Advisor Office in relation to his back difficulties and the job duties he performed on January 15, 2010.
On July 15, 2010, the worker advisor submitted to Review Office that the onset of the worker's bilateral wrist and elbow symptoms in October 2009 was causally related to his repetitive job duties of wrapping hams. With regards to the worker's back condition, the worker advisor noted that the worker reported a specific incident occurred on January 15, 2010 and that the diagnosis matched the mechanism of injury. The January 15, 2010 accident was supported by the worker's time off work during that time period.
On July 20, 2010, Review Office determined it was premature for it to consider the worker advisor's appeal. Review Office referred the file back to primary adjudication to obtain additional information related to the worker's lower back.
On August 16, 2010, the adjudicator spoke with the employer's health and safety officer who advised that the worker did not miss any time from work in mid January 2010. The worker did not report anything until February 2, 2010. The worker was absent without leave, as he did not call into work to report his absence on January 27, 28 and 29, 2010.
Primary adjudication obtained a doctor's first report for an examination dated January 27, 2010. The physician noted "no history of injury." The examination related to the worker's left wrist, right wrist, left elbow, back and neck. The diagnosis was a strained wrist.
On August 19, 2010, the worker was advised that no change would be made to the original decision of March 2, 2010. The adjudicator noted that there was no history of difficulties provided to the doctor on January 27, 2010, and the diagnosis was in regard to wrist difficulties only. The information obtained from the employer was that the worker missed no time from work in the middle of January 2010. The worker was absent without leave for the period January 27 until January 29, 2010 and several attempts to obtain further information from a co-worker were unsuccessful. On September 15, 2010, the worker advisor appealed the decision to Review Office.
On October 14, 2010, the employer's advocate submitted to Review Office that the worker's presentation respecting his low back was all due to the pre-existing pathology in his lumbar spine and was not related to his work activities in October 2009 or January 2010. There was no report of injury or ongoing complaints that could be considered cumulative trauma.
In a decision dated November 17, 2010, Review Office determined that the claim was acceptable for the worker's bilateral wrist and elbow condition. Review Office found that the worker provided a consistent description to the employer, chiropractor and the WCB with respect to the cause of his wrist/elbow difficulties. In regards to the worker's back, Review Office was unable to establish that the wrist and elbow difficulties led to the development of his low back symptoms or that his low back difficulties were the result of an increased workload. Review Office referred to the evidence of the lead hand that there was no shortage of staff on January 15, 2010, and the worker was assigned to lighter work. It was not probable that the worker's multi-level disc protrusions at L4-L5 and L5-S1 were attributable to his work duties on January 15, 2010. On November 30, 2010, the worker advisor appealed this decision to the Appeal Commission and a hearing was arranged.
Following the hearing held on May 3, 2011, the appeal panel requested and undertook a worksite visit to review the worker's work station and the job duties he performed. The panel also requested additional medical information from the worker's treating physicians. On June 3, 2011, all interested parties were provided with a copy of the medical information the panel obtained and were asked to provide comment. On June 22, 2011, the panel met further to discuss the case and rendered its decision.
Reasons
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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
The Worker’s Position
The worker was self-represented at the hearing and was provided the assistance of a translator. He was also accompanied by his pastor and family members. The worker advised that his job involved standing up all day and lifting meat product with his hands. In the beginning, he could just lift with his hands and arms, but in October, 2009, he started to feel pain in his elbows, wrist and shoulders. Because of his arm problems, the worker started to use his torso to lift the product. He would bend forward to pull the meat against his body and lift it off the conveyor belt. By January, the worker was experiencing pain in his back, but he continued to work. The worker felt that due to language barriers, he was unable to communicate his problems to his supervisor. Despite the pain, he continued to work. His problems were made worse by the fact that he felt he was assigned to the heavier jobs. Whenever larger cuts of meat were being processed, the worker said that he was always rotated into the position to perform the heavier work.
Because of his arm problems, the worker used his waist and back more to perform his duties. He developed pain in his back, which gradually worsened until January 27, 2010, when the pain was unbearable and he was not able to stand and work. It was at that time that he went to go see the doctor.
After he discontinued working, his arms got better. The pain in his back, however, remained and continued to affect his ability to work.
The Employer’s Position
The employer was represented by an employer advocate as well as the employer's workplace safety and health manager and the return to work coordinator. It was submitted that the worker's continuing back problems are most likely caused by the disc protrusions present at two levels in the worker's spine. The employer's position was that the disc protrusions were not related to work with the accident employer as there were no required movements that could cause either one or two levels of disc protrusion. The set up of the workstation did not require repetitive heavy lifting. The weight of the product for the most part was below ten pounds and there was no requirement to lift from a lower level below the waist. Most lifts were performed between waist and chest height. Overall, it was submitted that the pathology or damage to the worker's back was not done while the worker was performing his duties at work and accordingly was not a responsibility of the WCB.
Analysis
The issue before the panel is whether or not the worker's claim for low back difficulties is acceptable. In order for the appeal to be successful, the panel must find that the worker's low back symptoms are due to a work related cause. We are not able to make that finding.
Following the hearing, the panel obtained updated medical information regarding the worker's back condition. By report dated June 17, 2010, an orthopaedic surgeon indicated that the worker did not have evidence of any neurologic defect and his impression was that he would not consider surgery. Nevertheless, further tests were ordered, including blood tests, a bone scan and an MRI. In a follow-up report dated June 25, 2010, the orthopaedic surgeon reported that the blood tests and bone scan had normal results. It was his opinion that the worker had symptoms greater than would be expected from the objective findings and that there may be a functional component. From a musculoskeletal point of view, he would not restrict the worker with respect to his activities at work or leisure. There was evidence of chronic pain syndrome; however, from an orthopaedic point of view, there was no indication for any active treatment.
The MRI of August 7, 2010 indicated minimal degenerative changes within the facets at the L1-2 and L2-3 levels; moderate facet overgrowth at the L3-4 level; moderate facet overgrowth at L4-5, with a minimal central protrusion and associated annular tear, which did not compromise the L5 roots, central canal or foramina; and mild to moderate degenerative changes from the facets at L5-S1, with no significant disc protrusion.
On November 22, 2010, the worker was seen by a sports medicine specialist. In his report, the specialist's clinical impression was that the worker had chronic lower back pain. His MRI showed an annular tear as well as facet joint arthritis and that both of these findings could be possible pain generators. It was, however, impossible to tell which was causing the pain. There was definitely no surgical problem, and the worker did not seem to have any radicular pain, and therefore would not benefit from an epidural cortisone injection. It was thought that the worker was suffering from benign lower back pain.
The diagnosis for the worker's low back difficulties is not clear. In early 2010, there was some indication of sciatica; however, it would appear that by the time he saw the orthopaedic surgeon in June, 2010, any neurologic deficit had resolved. The MRI identifies degenerative changes at multiple levels of the worker's lumbar spine and the sports medicine specialist identified facet joint arthritis as being a pain generator.
To the extent that the worker's low back difficulties are caused by degenerative changes, there is no WCB coverage. WCB coverage only applies to injuries caused by work duties.
The panel has given consideration to whether the work duties may have caused either the disc protrusions identified in the CT scan of March 28, 2010, or the annular tear seen in the MRI of August 7, 2010. On a balance of probabilities, we find that the work duties did not cause either of these conditions.
During the worksite visit, the panel carefully observed all the job duties which had been performed by the worker. Although the worker's physical condition prevented him from personally demonstrating the manner in which the job duties were performed, the panel was able to observe other co-workers doing the job, both at the station where the worker was normally located, as well as numerous other stations in the general area which packaged various other products. When viewing the packaging area, we considered the various tasks being performed in that area, which included wrapping and transferring the wrapped product into box packaging. We also observed tasks involving the transfer of product into "combo" boxes. The panel also had an opportunity to observe other areas of the plant where the worker performed modified duties in early 2010.
The panel acknowledges the worker's concerns that the meat products he handled were larger and heavier than those being processed on the day the panel was at the plant. However, we were more concerned with body mechanics or movements, rather than the weight of the load.
In the panel's opinion, there was limited twisting and lifting involved in the job duties. The job involved more of a slide of the product from the conveyor belt onto a side table which was performed above waist height. We did not see the degree of bending and twisting which is a possible cause of a disc protrusion or annular tear. We considered the worker's submission regarding modifications to the way he performed his job to compensate for the pain he had developed in his arms and wrists, but we still do not accept that this would have caused him to suffer injury to his lumbar spine.
For the foregoing reasons, we are unable to find on a balance of probabilities that the worker's low back symptoms are due to a work-related cause. The worker's appeal is therefore dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of August, 2011