The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

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

This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing and explained her reasons for filing the appeal. The worker answered questions posed by the panel.

The worker identified several concerns regarding the WCB's decision. She said that the WCB investigation into her injury was incomplete, noting that not all witness statements were collected and that the number of hours she worked, increasing from .45 EFT to .65 EFT plus pickup shifts were not itemized and analyzed appropriately.

The worker disagreed with the report from a physiotherapist who noted that she had a history of back injury over a five year period. The worker said that she did not have any back complaints for over three and a half years. She also disagreed with the physiotherapist's comment that she worked as hard at home as at work. She expressed concern that the physiotherapist gave her the wrong exercise. The worker questioned the physiotherapist's findings that she did not have any decrease in reflexes.

The worker denied the assertion by her family physician that she had insisted that her injury was not work-related. She advised that she told her physician that she could not recall any occurrence at work.

She said that her understanding of the injury, spinal stenosis, is that this condition is a result of a disc compression and the compression is a result of heavy work and heavy workloads.

The worker explained that her duties involved moving and lifting people, some weighing 200 pounds and more. She said that using lifting devices, like a Hoyer lift, causes additional stresses, mostly in turning. The worker said that she worked in an office all her life before commencing this job and that she was physically ill-prepared to suddenly engage in physical work.

The worker told the panel she had seen a surgeon who had recommended that she have a spinal fusion. She said the surgery was scheduled but that she declined to have it at this time. Instead, she is now looking for office work rather than return to her former position and is seeking an alternative doctor's diagnosis. She has seen a sports medicine physician who recommended that she obtain physiotherapy. This physician advised her that "He said to me that the surgery should be the very last thing I should do. He says it really is only for the pain control. I don’t understand that. He said before agreeing to go into surgery, try the physiotherapy because I explained to him that I only had acupuncture up in the beginning for eight sessions, and he did not think that the right course of treatment, and so he said, go back and get proper physiotherapy first."

The worker said she is now seeing a new physiotherapist and provided the panel with a copy of a report from the physiotherapist.

The worker answered questions about her prior injury which occurred in 2005. She said "I started working there, and I came home from one of those shifts. I did orientation and I was – we were doing them back to back, and I came home one day after – I forget now how many shifts I had worked – and I moved a bookshelf without the books. And I had a TV antenna – a satellite dish – installed, and I was all happy and I could finally watch television, so I sat in the armchair and I coughed. And, apparently, I blew out a disc."

The worker confirmed that it was in the L4, L5 area. She said that she received physiotherapy and confirmed that as a result of the injury she lost disc height. She indicated that it was fine afterwards and that she did not have back pain until one time at her current job. She said that she did not have spinal pain; rather, it was muscular and it resolved in three or four days.

In answer to a question from the panel about whether she felt any "ouch pain" and had to stop doing what she was doing, she replied:

"Yes, there was. One of the nurses was working on a resident on the bed and the bed had to be lifted up to her work height so she could work in the coccyx area and I had to hold the patient – the resident – up. This resident was quite heavy. And I was standing there and working at the nurse’s height level, and pushing this resident forward. And I had to stand there for quite a while, and I had to stop and I had to tell her I can’t continue, my back is hurting too much; I can’t hold this."

The worker indicated that as she held the patient her back got worse and worse. She said that she did not report this to the WCB.

Employer's Position

The employer was represented by a consultant. The consultant advised that the employer agrees with the Review Office decision. He said there is not enough evidence to link the worker's chronic back problems to her work duties.

The consultant noted there is evidence on file to demonstrate that the worker’s chronic back symptoms are due to a pre-existing non-compensable degenerative condition affecting her spinal column. He referred to the WCB adjudicator’s decision letter of July 29, 2010, which concluded that the worker has a long-standing history of back problems, and has been diagnosed with chronic degenerative discogenic back pain. The consultant noted that the WCB does not accept responsibility for degenerative back conditions from acute accidents.

The consultant noted that in 2005, the worker missed work for significant time due to her non-work back condition. She had suffered a prolapsed disc at the L4-5 level of her spinal column. He said that these types of non-compensable back conditions cause episodic back symptoms and disability. He noted there was no specific workplace accident to trigger the worker's most recent back problems, and therefore, did not believe that this claim meets the criteria for acceptable workplace injuries.

He noted that while there was an indication that her back gave out on December 31, 2009, there was no actual accident associated with that incident. It appears that her prior back condition acted up again around that time without an acute intervening cause.

He said that when WCB adjudicates non-specific claims, they must look at all potential causes for a worker’s symptoms. In this case, on a balance of probabilities, the worker's symptoms have been caused by her pre-existing condition, rather than by her work duties. He added that there is no solid evidence to indicate that a work accident caused her pre-existing condition to become aggravated.

He also noted that while the worker did have a 2007 WCB injury claim, medical information from that time indicates that she had made a complete recovery from it.

Regarding the medical evidence, he noted that on April 14, 2010, the worker underwent an MRI scan of her back and it showed pre-existing spinal stenosis at the L4-5 level of her spine, and lower lumbar facet hypertrophic changes. Both of these diagnoses were due to pre-existing spinal changes, rather than to an acute new injury.

Analysis

The worker is appealing the WCB's decision to deny acceptance of her claim. For the worker's appeal to be successful, the panel must find that the worker sustained an injury by accident which arose out of and in the course of her employment. In other words, the panel must find that the worker's injury is due to her workplace duties. The panel was not able to find, on a balance of probabilities, that the worker's back injury is due to her workplace duties. We are unable to find that the worker's back problems were caused or aggravated or enhanced by her general duties and did not find a specific acute workplace incident which caused her injury. We find the likely cause of her symptoms is her pre-existing back condition.

In reaching our conclusion we rely upon the following information:

· CT report dated March 2, 2010 which noted "Impression: Slight L4-L5 spinal stenosis and degenerative disc disease. No evidence of disc protrusion."

· MRI report dated April 14, 2010 which noted marked degenerative space narrowing and spondylosis at L4-L5 and reported "Impression: Lower lumbar facet hypertrophic changes. Concentric diffuse disc bulging at L4-L5 with mild central stenosis. No foraminal stenosis demonstrated."

· The treating physician in a report dated July 11, 2010 noted that the diagnosis appeared to be spinal stenosis and commented that the potential cause could be arthritis.

· The worker's work duties did not vary significantly over the period that she worked for the employer. We accept her evidence that the number of heavier patients requiring assistance increased and that her hours increased but do not find that these would cause the worker's current symptoms.

· The physiotherapist's report dated June 7, 2010 which indicates diagnosis and causation as "Client has acute on chronic degenerative, discogenic and mechanical low back pain for approximately a 5 year history." The physiotherapist commented that on a balance of probabilities, her prior lower back difficulties have impacted her current condition.

· The worker did not identify a specific incident to account for her condition, but rather she suggested that her condition is due to the heavy nature of her employment. As noted above, we did not find her employment duties caused her workplace injury.