Decision #83/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his back difficulties commencing in August 2010 did not meet the definition of an accident as set out in The Workers Compensation Act (the "Act"). A hearing was held on May 30, 2012 to consider the matter.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
In March 2011, the worker filed a claim with the WCB for a low back injury that occurred on August 23, 2010. The worker described the incident as follows to the WCB's call centre:
I am driving a flat roof truck (low style cab). I am 6 foot 4 and when I drive the truck, I drive with the seat all the way back most of the time so my legs are not cramped. But when I do this, there is no air in the seat which makes the ride smoother. I'm not sure if this is what hurt my back. If the road gets really rough, I put the seat forward and then you can put air in the seat but your legs cannot move very much. You are very limited. I think I am just too big for the truck. It is also a physical job at times. I am lifting tarps and moving different pieces of machinery on the trailer so you can tie them down. They are heavy (about 150 lbs.). They are fairly awkward to move.
The worker reported that he walked with two canes in August 2010 and that, beginning in or around September 2010, he would feel a strong pain in his low back and that he could not put any weight onto his left leg. He reported that if he lay down on his side for half an hour to an hour, the pain would dissipate and often go away completely. When driving, he could hardly stay in the seat and he could not pull himself forward to look for traffic. Later on it got worse and his left leg was hurting all the time.
On May 18, 2011, the worker advised a WCB case manager that he first developed symptoms in August 2010. The worker noted that he drove a low-cab 2005 Peterbilt truck. He had to deflate the seat so his head would not hit the ceiling of the cab. He felt that the vibration of the driving caused or contributed to his back pain. The tires on the truck have air ride suspension. The worker noted that he drives a flat deck and drop deck that have to be adjusted for specific loads, and that as a result he does a lot of heavy lifting as part of his job duties. Two trailers use two 50 lbs. adjustments and the other trailer has three 20 lbs. adjustments. As well, each trailer has 3 tarps weighing 80 lbs. apiece. He reported that in January 2011, he was on the flat-bed physically moving load levellers and had a hard time of it. When he arrived back from that trip, his boss suggested massage and chiropractic treatments.
Medical reports on file are as follows:
• Chiropractic report based on examination of September 21, 2010 diagnosed the worker with acute lumbosacral ligament strain with SI joint symptoms.
• Letter from chiropractor dated June 2, 2011 stated that the worker walked in with a cane on September 21, 2010 and noted that his chief complaint was low back pain, particularly on the left side. The second and last treatment took place on September 23, 2010. The worker mentioned he had felt better after the previous treatment. The worker did not report the mechanism of injury.
• Physiotherapy Initial Assessment dated January 11, 2011 showed that the worker complained of low back and left leg pain. The diagnosis was queried L5-S1 discogenic back pain.
• Triage Record dated January 20, 2011 stated the worker had back pain for two weeks. No injury was noted. The worker reported lower back pain radiating to his left leg and that he has tried acupuncture, physio and chiropractor. The record further notes: “Can't sit - too much pain. Walks with two canes. Has had similar back pain before.”
• Emergency Report dated January 20, 2011 states that the worker has a two week history of back pain while walking. The diagnosis noted is lumbar pain.
• MRI of lumbar spine results dated January 25, 2011 stated: "There is a small to moderate size left paracentral disc extrusion with associated calcification at the L5-S1 level. Correlation for radiculopathy is recommended."
• CT scan results of lumbosacral spine dated January 25, 2011 stated: "At L4-5 mild apophyseal degenerative joint changes. No evidence of disc protrusion, central spinal stenosis or foraminal stenosis. At L5-S1 a central disc protrusion is present along with a posterior osteophyte. This contacts the thecal sac but no significant central spinal stenosis is demonstrated. No significant neural foraminal stenosis is demonstrated. Moderate apophyseal degenerative joint changes area evident.”
• May 16, 2011, the treating physician reported that the worker was initially assessed on January 17, 2011 for low back pain on and off for the previous six months. The worker had been attending a chiropractor with only mild to moderate success but had progressed to the point that he was unable to continue working, was using crutches and was severely limited in his mobility. The physician stated that he was unaware at the time that this was a work-related injury. He noted that at the present time, the worker's condition improved dramatically in that he was able to walk again without using crutches. He still had limitation of movement but was improving and was attending physiotherapy.
• Letter from physiotherapist dated June 30, 2011 stated that the worker first attended for treatment on January 11, 2011. He reported having low back pain in the past after prolonged driving and that he experienced episodes of low back pain such that he had difficulty straightening his back after prolonged sitting/driving his truck. He said it worsened in August 2010. At that time he had no history of major trauma or motor vehicle accidents. The report indicated an “abnormal load on disc(s) due to the prolonged compression of his discs with long haul driving and loading/unloading of freight.”
• Letter from second chiropractor dated July 12, 2011 stating that the worker attended for treatment on January 10, 2011. The diagnosis was acute mechanical low back pain secondary to what appeared to be the postural requirements of being a truck driver. The worker's symptoms were consistent with the repetitive postural demands placed on his L4-S1 facets affecting the left side of his lumbar spine.
On August 30, 2011, a WCB medical advisor reviewed the file at the request of Rehabilitation and Compensation Services. The medical advisor said there was no compensable injury and there was no reported mechanism of injury. The medical advisor stated that the pre-existing underlying condition was a small to moderate-sized disc extrusion with an associated calcification at the left L5-S1 level. He felt the worker's symptoms were likely related to the pre-existing condition.
In a memorandum to file dated August 31, 2011, the WCB medical advisor further stated:
"From this short review, there is no incident of a compensable accident occurring. Therefore, the claimant's cause of his pain may be caused by any activity, but we have no clear evidence to support a work related injury. The x-rays and MRI confirm changes which are of some longstanding noting the calcification of the disc."
On September 6, 2011, the WCB advised that worker of the decision that his claim for compensation was not acceptable. The letter stated:
"Medical information on file indicates that your current/ongoing lower back difficulties are likely related to pre-existing degenerative changes. Your symptoms came on without an intervening event other than riding in your vehicle for several hours. As the action of driving in a vehicle does not meet the definition of an event "arising out of and in the course of" employment, these degenerative changes in my opinion were not caused or aggravated by your employment activities. There is no new inciting incident or influence which "triggered" the onset of symptoms. "
The worker appealed the September 6, 2011 decision to Review Office on October 26, 2011, stating that his back pain symptoms were a direct result of a poor fitting, broken seat in a low cab truck.
On December 14, 2011, Review Office determined that the claim was not acceptable. Review Office noted that when the worker completed a Worker Incident Report regarding his condition, he was not sure what had occurred to create his back problem but he speculated it was related to his truck driving duties and in particular how uncomfortable he was in the cab. This speculation did not meet the definition of an accident as per the Act. Review Office noted that the CT and MRI findings of a degenerative condition were not deemed to be compensable as there was no description of an accident occurring in the workplace. On March 26, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission is bound by the Act and the policies of the WCB’s 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. An accident is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful 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;
Worker’s Position
The worker was represented by counsel in the hearing. The worker’s position is that he was injured by accident arising out of and in the course of his employment.
The worker asserted that his employment environment and duties substantially contributed to the injury sustained. He testified that:
• He has been a long distance truck driver for approximately 22 years;
• Since 2006 he drove in a poorly fitted retro-style truck cabin with a low ceiling, inappropriate for his body size (he is more than 6 feet tall);
• When driving, he must reduce the air in the seat cushion to minimum levels in order to accommodate the low ceiling in the cabin and as a result, he experiences all road vibration that would otherwise be absorbed by the air cushion;
• In 2010, he drove for four weeks with a broken chugger bearing in the seat that he “fixed” with a tarp strap until the bearing was replaced, and as a result the seat was in a rigid position and he had to maintain a forward leaning posture in order to avoid reclining;
• His daily job duties include lifting, pushing and adjusting of heavy items including load levelers, tarps and dunnage as well as the items loaded on his flat-bed trailer;
In the course of giving his evidence, the worker provided the panel with photographic evidence of the physical environment of his truck cabin, including images of him seated in the cabin and a cross section of the seat. The photos confirmed the worker's testimony as to his awkward posture and position when seated in the truck cabin.
The worker stated that as a direct result of the employment environment and his job duties, he sustained injury to his back, which commenced in or around August 2010 and worsened through the course of the subsequent months. He treated the injury through a variety of means including periods of rest, massage, chiropractic treatments, physiotherapy, medical treatment and pain relief medications. At times, he walked with one or two canes. The onset of pain in his lower back, particularly on the left side, would at first occur when standing or walking after driving, and would worsen with sitting. The pain would radiate from his back to his left leg. Eventually, he experienced the onset of pain while driving. Periods of rest would help to alleviate the pain for a while so he would take frequent breaks to lie down while on the road.
The worker's counsel noted that the medical evidence confirms that the subjective complaints are matched by the objective findings. Where information was provided to the practitioner about how the injury occurred, there is agreement that the mechanism of the injury was work-related, with the exception of the opinion of the WCB medical consultant who noted that “There was no clear injury and there is no reason to speculate on the multiple reasons of why the claimant should have low back pain.” To counter this opinion, the worker’s counsel pointed to the evidence of the worker’s job environment and duties and the mechanism of injury as supported by the reports of the worker’s chiropractor and physiotherapist.
The worker therefore claims he is entitled to compensation paid by the WCB for personal injury by accident arising out of and in the course of his completing the regular duties of his employment.
Employer’s Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker was injured by accident arising out of and in the course of his employment.
In order to accept the worker's claim, the panel must find on a balance of probabilities that the injury to the worker was an accident as defined by the Act. We were able to make this finding, based on the reasons following.
In considering the evidence before us, including the testimony of the worker and the medical reports on file, we accept the evidence that:
· the job duties of the worker included heavy lifting, pushing and pulling activities;
· the cabin of the truck the worker drove was poorly fitted to his body size and as a result, the worker had to adjust the comfort settings of his seat to accommodate his frame; in particular, the low-cab truck had a low ceiling that required the worker to deflate his seat and sit awkwardly. The panel notes that the photographs provided by the worker were consistent with the worker's description of the poor ergonomics of his driving position.
· for a period of several weeks in mid-2010, the driver's seat chugger bearing was broken and the temporary fix applied resulted in an even more uncomfortable driving position for the worker in that he was seated in a sideways tilt position;
· the worker took active steps to manage his pain while continuing to work through the fall of 2010, including seeking chiropractic treatment, massage and physiotherapy as well as modifying his work patterns to include periods of rest when the pain became unbearable on the road.
With respect to the medical evidence before us, we note in particular that the report provided by the chiropractor based on the January 10, 2011 examination of the worker, diagnosed the worker with “acute mechanical lower back pain secondary to what appears to be the postural requirements of being a truck driver.” That report also notes that the mechanical lower back pain is associated with the worker’s “work place ergonomic environment as well as his reported previous history of reoccurring workplace injury.”
Further, the report prepared by the worker’s physiotherapist on June 30, 2011 notes that the worker reported:
• Low back pain in the past after prolonged driving….worsened in August 2010
• Episodes of low back pain where he would have difficulty straightening his back after prolonged sitting/driving his truck
That report specifically indicates that objective findings match the subjective complaints of the worker, and that the objective finding occurred “due to the prolonged compression of his discs with long haul driving and loading/unloading of freight.”
The findings of the other medical professionals who examined the worker provide consistent evidence in terms of subjective complaints and objective findings, but do not address the issue of mechanism of injury. The worker explained to this panel that he was reluctant to make a claim under the Act as he believed it would be costly to his employer and could negatively impact his future ability to obtain work in the industry. As a result, for the most part, he did not describe the circumstances of his injury when he sought medical or other related treatment.
The report of the WCB medical advisor stands in contrast to these other medical reports, noting that “There was no clear injury and there is no reason to speculate on the multiple reasons of why the claimant should have low back pain….there is no evidence of a compensable work related injury. From this short review, there is no incident of a compensable accident occurring.” Based on the information reviewed, the WCB medical consultant concludes that the worker’s injury may have been caused by any activity, but that there is no clear evidence to support a work related injury.
Based upon the evidence heard and reviewed by this panel, we cannot come to the same conclusion. The evidence of the worker is that the pain occurred after prolonged driving and, initially, would be alleviated by periods of rest. The worker described a workplace environment that included a truck cab with a very low ceiling that required him to deflate the air-cushion in his seat, and for a period of time, a broken bearing in the seat mechanism that both decreased the comfort of the seat and required him to position himself in the seat in such a way as to avoid reclining. The panel agrees that there was no specific inciting event but notes that the medical advisor did not consider the broader work environment or occupational hazards faced by the worker. We find that the worker compensated with poor sitting posture in a poor ergonomic environment for extended periods of time while driving.
The panel finds that the subjective complaints of back pain provided by the worker are consistent with the objective findings noted by the practitioners he consulted. The evidence points to the worker’s injury having been caused by the cumulative effect of the duties performed by the worker in the course of his employment, and this falls squarely within the definition of accident as “…any thing that is done and the doing of which arises out of, and in the course of, employment” as set out in subsection 1(1) of the Act.
CONCLUSION:
Having reviewed all the evidence before us, we have determined on a balance of probabilities that the worker was injured as a result of an accident that occurred in the course of his employment and that the claim is therefore acceptable.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 24th day of July, 2012