The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for back and neck difficulties were not related to driving a vehicle on rough roads while at work on November 29, 2012. A hearing was held on July 30, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for neck and middle back difficulties that began on November 29, 2012 which he attributed to driving a vehicle on rough roads. The worker indicated that he started driving at 5:45 a.m. and his symptoms started around 9:00 a.m. At first, he noticed stiffness between his shoulder blades and it just got worse. He felt soreness in his left arm and shoulder and into his left thumb, index and middle fingers. The worker indicated that he reported his symptoms to his supervisor on December 4, 2012.

Medical information consisted of reports from a local hospital, a walk-in clinic physician, a chiropractor and a physiotherapist. The worker also underwent x-rays related to his thoracic spine and left shoulder. The worker was diagnosed with a pinched nerve in the left shoulder, left neuropathic pain and neck pain.

On December 13, 2012, the worker provided the WCB with further details pertaining to the onset of his shoulder and back difficulties and the road conditions and route he was driving on the date of accident. The worker indicated that he could not recall a specific event or incident that led to his shoulder and back problems but felt that the combination of driving a smaller vehicle than usual and the rough road conditions were the cause of his symptoms.

Information obtained from the employer was that the vehicle driven by the worker on November 29, 2012 did not have any defects or malfunctions.

On January 3, 2013, the worker was advised that no responsibility would be accepted for his neck and back difficulties as the WCB was unable to establish that an accident occurred as defined in subsection 1(1) of The Workers Compensation Act (the "Act"). The case manager indicated that there was no report of a specific incident or event that occurred on November 29, 2011, there was no significant deviation from the worker's normal work duties and there was nothing mechanically wrong with the vehicle that he was driving.

On January 29, 2013, the worker appealed the January 3, 2013 decision to Review Office. The worker indicated that he saw seven medical professionals who all said that he had nerve damage from driving the work vehicle. The worker indicated that he had never been diagnosed or treated for any condition similar to this prior to his accident.

In a decision dated March 7, 2013, Review Office confirmed that the claim was not acceptable as the medical evidence did not support the worker's neck and middle back symptoms were caused by a hazard resulting from the nature, conditions, or obligations of the worker's employment. Review Office felt that the presumption provision in subsection 4(5) of the Act did not apply in this case. On March 13, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on July 30, 2013.

At the July 30, 2013 hearing, the employer's representative submitted new medical information for consideration. The worker's union representative was then provided the opportunity to comment on the new information and a written submission to the panel was later received dated August 2, 2013. The union's submission was then provided to the employer for information purposes.

On August 7, 2013, the panel met to discuss the case and requested medical information from the worker's treating physician. The report from the treating physician was later received and was provided to the interested parties for comment. On October 22, 2013, the panel met further to discuss the case and reach a decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 key issue to be determined by the panel deals with causation and whether the worker’s medical condition was caused by an accident arising out of and in the course of employment.

The worker’s position:

The worker was assisted by a union representative at the hearing. It was noted the worker was a 51 year old male who had been employed by the employer since 1994. On November 29, 2012, the worker was operating his vehicle during his eight hour shift when he experienced onset of stiffness to his shoulder with pain increasing into his left arm. The weather conditions were such that the road was uneven and snow covered with ruts and buildup of snow. It was physically and psychologically demanding on the body to operate the vehicle. Three hours into the shift, the symptoms worsened such that the worker booked off work and subsequently sought medical attention.

It was submitted that the worker's neck and upper back issues were related to a combination of driving a smaller vehicle on the day of the injury and an uncomfortable seat. The suspension was rough as well. The smaller vehicle resulted in a choppier ride. The worker drove a straight shift so as he continued to work, the bouncing caused his symptoms to worsen. The worker relied on a letter dated July 15, 2013 from the treating chiropractor which stated:

Therefore, on the balance of probabilities, considering that "Dorsal Scapular Nerve" entrapment protocol treatment has provided immediate and long lasting functional and symptomatic change, I would suggest that the problem was of peripheral nerve entrapment nature and not discal entrapment nature. I would further suggest that the injury was not due to a prior existing neck problem, but rather an injury associated to the posture of driving...similar keyboarding.

Although there were no mechanical defects found in the vehicle, the panel was urged to look beyond that. It was submitted that the panel should consider the human body and the experiences of driving a vehicle for eight hours under the stated conditions. While the worker was driving, an event occurred and got progressively worse to the point where the worker had to seek medical attention. The panel was asked to accept the claim and pay all related costs, benefits and wages.

The employer’s position:

The compensation coordinator appeared at the hearing on behalf of the employer. It was submitted that the preponderance of evidence failed to satisfy the prerequisites of subsection 1(1) of the Act. The worker had two disc protrusions in the cervical region which pre-dated the problems arising on November 29, 2012. The protrusions were in all likelihood degenerative in origin and would spontaneously provide symptoms from time to time with or without little activity. When the worker attended the hospital on December 2, 2012, there was no connection between his symptoms and driving duties on November 29, 2012. No work history was given to the triage nurse. Subsequent to seeing his chiropractor on December 4, 2012, the worker began attributing his problems to operating a smaller vehicle with rough suspension. The most recent opinion relative to causation was provided by the chiropractor who stated that the problem was attributable to posture and positioning rather than operation of a smaller vehicle with rough suspension. At the hearing, the union representative spoke about rough road conditions and snowfall. The employer submitted that the worker's position with respect to causation was varied and unclear. The employer stated that the vehicle had been checked on January 4, 2013 and there were no defects, nor were there any complaints by any other operators. The panel was called upon to confirm the decision of the WCB.

Analysis:

In order for this appeal to be successful, the panel must be satisfied that an accident has occurred within the meaning of subsection 1(1) of the Act. We would need to find that the worker’s medical condition was caused by his work duties. The panel was not able to find that there was a causal connection between the development of his neck and back problems and his employment.

Following the hearing, the panel requested updated medical information from the worker's treating physicians. The information provided to the panel indicated that the worker was diagnosed with a left sided C6 disc injury, which was confirmed by MRI results dated February 11, 2013. The MRI indicated:

1. Moderate sized left posterolateral disc protrusion at C6-7.
2. Degenerative disc disease C5-6 with disc osteophyte complex more prominent on the right with right-sided neural foraminal narrowing.
3. Borderline spinal canal diameter at C5-6 and C6-7 with no significant central spinal stenosis suspected.

The worker had also been referred to a neurosurgeon who felt the worker's presentation suggested some cervical mechanical pain and numbness and tingling which was very probably a mild radiculopathy. Conservative treatment was recommended.

The question the panel must consider is whether or not there was some work factor which caused or contributed to the worker's C6 disc injury. The information provided by the employer indicated no defect with the equipment used by the worker on November 29, 2012. The seat and the suspension on the vehicle were in good working order. The union representative identified rough road conditions as being a causal factor. The panel finds that although snowy conditions may cause roads to become bumpier, the worker's route was within city limits and was on urban roadways.

We do not accept that the ride would become so rough as to cause a disc herniation. This is particularly so given that the worker was not able to identify a specific acute event. Positioning was identified by the chiropractor as a causal factor, but the panel is not satisfied that there was anything awkward about the positioning of the hands and arms such as would cause the worker to suffer an injury to his cervical spine. It is notable that the worker had been performing these same job duties for eighteen years, and we would expect that his shoulder blade muscles used to hold the steering wheel would be well developed and strong. If positioning were the cause of his difficulties, presumably the condition would have manifested at an earlier time.

The MRI indicated degenerative processes present at the C5-6 level which may well be responsible for the development of the symptoms.

Overall, the panel is not convinced that there was any unusual condition associated with the worker's job duties which would result in the disc injury. As a result, we are not satisfied on a balance of probabilities that there was a causal connection between the development of the worker's medical condition and the performance of his work duties. We therefore find that the worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of December, 2013