Decision #163/13 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that his current back and leg complaints were not related to his compensable injury of May 15, 2006 and that his claims for injuries occurring in January 2007 and January 2008 were not acceptable. A hearing was held on December 6, 2012 to consider these matters.

Issue

Whether or not the worker's current back and leg complaints are related to the May 15, 2006 compensable injury; and

Whether or not the claims for accidents occurring in January 2007 and January 2008 are acceptable.

Decision

That the worker's current back and leg complaints are not related to the May 15, 2006 compensable injury; and

That the claims for accidents occurring in January 2007 and January 2008 are not acceptable.

Decision: Unanimous

Background

In May 2006, the worker sought medical treatment from a physician for back pain which he related to his job duties.

A Doctor's First Report dated May 15, 2006 described the worker's injury as follows: "While picking up a trap, bending forward in a twist, sudden pain in his back: gradually worsening." The diagnosis rendered was an acute muscular spasm lower back with sciatic irritation on the left side. The physician reported that the worker "will have to be very careful when lifting, pushing - If can't make it to work tomorrow, will let me know."

The worker's claim for compensation was accepted by the WCB but no further action was taken as it was a no time loss claim.

The WCB had no further contact from the worker until January 26, 2010, when the worker filed a further claim with the WCB for ongoing problems he was experiencing with his low back. He related his low back condition to the 2006 accident (described at that time by the worker as "slipped on the deck of his trailer") and two other slip and falls that occurred in January 2007 and January 2008 with different employers. The worker indicated that his back pain was also caused from repetitive sitting while driving his truck. The worker reported that he had numbing and tingling in both hips and legs since his 2006 fall and that the other falls made his condition worse. The worker reported that he now experienced headaches, abdominal pain and problems with urinating. He felt sick to his stomach and had back pain at the same time.

A Doctor's First Report dated December 29, 2009 diagnosed the worker with progressive low back pain. The physician noted:

"He started having back pain since 2007. Has been having ongoing pain in his lower back since then. The pain has gradually been getting worse the past 2 days. He has had 2 CT scans done, the last one August 10, 2009. Currently, he has burning pain in both thighs, R>L. Prolonged standing will cause numbness in his left leg, and he has poor sitting and walking tolerance…MRI of his lower spine which was done on October 31, 2009. The MRI reported anterolisthesis at L5-S1 resulting in moderate to severe right and severe left intravertebral foramen stenosis. Both L5 nerve roots were presumed to be compressed as they travel through their respective intravertebral foramina. [The worker] has not been able to return to work since August 28/09 due to back pain, pain and paraesthesia lower extremities, and recurrent abdominal pain. Numbness/tingling start from hips to the knees, sometimes has tingling lateral toes and feet, and burning sensation traveling from his hips to the lateral aspects of his legs, down to lower legs, R>L. He denies bowel or bladder incontinence. He has poor sitting and walking tolerance due to weakness in lower extremities and paresthesias."

In February 2010, the WCB contacted the worker's employers to obtain information related to the worker's back difficulties. One employer advised the WCB that the worker was in their employ from February 2009 to August 2009. It was believed that the worker left their employment for an unrelated stomach illness and that it had nothing to do with his back. The worker never complained of back pain nor was a back injury ever reported.

On February 22, 2010, the second employer reported to the WCB that the worker was in their employ from August 7, 2007 to February 19, 2009. At no time during his employment did the worker report a work related injury, so no compensation reports were filled out or submitted.

On February 26, 2010, another employer advised the WCB that the worker was employed with them from January 11, 2006 to November 14, 2006. The worker did not report a workplace injury or complain of back pain.

On June 25, 2010, a WCB case manager documented the following information after speaking with the worker:

May 2006 accident:

  • The worker's symptoms improved after seeing his physician and he was able to perform his regular duties. He could not recall seeking any further medical treatment at this time.
  • The worker recalled having had a separate incident sometime in late May 2006 whereby he slipped and fell at work injuring his back. He reported the incident to his employer but could not recall if he sought medical treatment at this time or not. Within a short period of time his symptoms resolved. He had no time loss and was able to continue with his regular duties.
  • The case manager advised the worker that his employer was contacted and they were unable to confirm that an accident occurred. As the WCB was unable to confirm an accident was reported to either his employer or a treating medical provider, he was unable to establish that a workplace injury occurred.

January 2007 accident:

  • The worker said he slipped and fell injuring his low back sometime in January of 2007.
  • The case manager advised the worker that the employer was contacted and they had no record of him reporting a specific workplace injury involving his low back. The employer also indicated that the worker started working for the company on August 7, 2007. Based on this information, the case manager was unable to establish that a workplace injury occurred.

January 2008 accident:

  • The worker reported that he slipped and fell at work in January of 2008.
  • The case manager advised the worker that the employer was unable to confirm that he reported a workplace injury. Given that the worker did not report a workplace injury to either his employer or treating medical provider, the case manager was unable to establish that a workplace injury occurred.

The case manager further documented:

  • The worker applied for and received disability benefits effective August 28, 2009 up to and including December 24, 2009.
  • The worker had not worked since August of 2009 and had been in receipt of EI sick benefits which expired in four weeks.
  • Given that there was no medical treatment from May 16, 2006 until approximately August of 2009, and no continuity in terms of ongoing complaints, a relationship has not been shown to exist in this instance.
  • Based on a balance of probabilities, the worker's current/ongoing signs and symptoms were related to significant pre-existing degenerative changes throughout the spine.

By letter dated June 29, 2010, the worker was advised that the WCB was unable to establish a relationship between his current and ongoing symptoms to the slip and fall accidents of 2006, 2007 or 2008.

On February 24, 2011, the worker's legal counsel provided the WCB with a medical report dated February 4, 2011 which showed that the worker underwent back surgery on November 9, 2010. Counsel noted that it was the surgeon's opinion that the worker's back problems were caused by his work related activities and asked that the decision made on June 29, 2010 be reversed.

On March 1, 2011, the WCB case manager determined that the new information submitted by counsel would not change the decision made on June 29, 2010.

On March 21, 2011, counsel appealed the above decision to Review Office. Counsel noted that the WCB placed significant emphasis on the lack of records from the worker's employers in respect to specific incidents. He stated that the onus was on the employer to keep records and the mere fact that the employer did not record the incident does not in any way establish that no report was made. The counsel noted that the decision of June 29, 2010 did not consider the possibility that the worker's back problems were the result of the cumulative effect of a series of falls, coupled with the strain of having to lift and move heavy objects in the course of his work duties.

On March 31, 2011, Review Office determined that a relationship did not exist between the worker's 2010 back and leg complaints and the May 15, 2006 low back strain; nor were the alleged slip and fall accidents from January 2007 and January 2008 accepted.

Review Office noted in its decision that it was clear from the evidence that the worker did not know what had caused his back and leg symptoms in 2010. During the initial stages of the claim, the worker related his back difficulties to the three slip and fall incidents. Later in the claim, the worker related his difficulties to a cumulative scenario related to the lifting he has done over the years in the workplace. Review Office felt that with so many different scenarios being provided to the WCB, the claim was a speculative situation and it was felt that the circumstances did not amount to a compensable claim.

Review Office noted that the worker's orthopaedic surgeon stated that his comments were based on the worker's subjective presentation. Review Office felt that a significant degenerative condition was noted in the MRI from October 2009 and it did not relate these findings to an accident in the workplace. Review Office concluded that the worker's multitude of symptoms leading into January 2010 were not related to the injury from May 15, 2006 or to the alleged falls in the workplace in January 2007 and January 2008. On April 29, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 1, 2011.

Following the hearing, in a letter dated September 14, 2011, the appeal panel advised the parties that it did not have the jurisdiction to consider the "cumulative effects" of the worker's injury, contrary to what was indicated at the September 1, 2011 hearing. As the issue had not been previously considered by Review Office, the matter could not be addressed by the Appeal Commission. The parties were also advised that the worker's case would be referred back to the WCB to investigate and adjudicate the January 2007 slip and fall incident that occurred while the worker was employed with a particular employer. New evidence submitted at the hearing suggested that at the time of the January 2007 incident the worker was working for an employer who had not previously been identified and who had not been informed of the appeal.

On October 5, 2011, a WCB case management supervisor contacted the employer named by the worker. The employer noted that the worker was employed with their company in January and February 2007. The employer had no recollection of any injury sustained by the worker and they did not have any incident or injury reports.

On November 15, 2011, the worker was advised by primary adjudication that a further review had been conducted and there was still no evidence to establish a relationship between his 2010 back and leg complaints and either a May 15, 2006 low back strain, or a slip and fall accidents in either January 2007 or January 2008.

On December 22, 2011, primary adjudication advised the worker that the medical information from his family physician noted back pain which appeared to be chronic in nature since at least 2005. An October 31, 2010 CT scan of his low back indicated bilateral pars interarticular defect at L5 and grade 1 spondylolisthesis. The adjudicator outlined the opinion that the evidence did not, on a balance of probabilities, establish that there was any direct correlation between the degenerative changes noted on the scan and an accident or injury arising from the worker's work duties.

On March 21, 2012, counsel appealed the above decision to Review Office. On April 13, 2012, the solicitor provided Review Office with the name of an additional employer who employed the worker during the period March to May of 2007.

On June 7, 2012, Review Office stated that it did not find any new evidence to alter its decision of March 31, 2011 and that it agreed with the decision letters by primary adjudication dated November 18, 2011 and December 22, 2011. Review Office's view was that there was no medical evidence to substantiate the contention that the worker's condition had a relationship to either the unconfirmed slips and falls in the workplace in 2007 and 2008 or any cumulative effect of employment in the trucking industry. Review Office noted that the orthopaedic surgeon's comments were based on the worker's presentation to him but it was unclear as to how much detail he was aware of regarding the worker's other health problems. Thus it is felt the orthopaedic comments were speculative. Review Office did not feel that the back complaints were work related.

On August 2, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on December 6, 2012.

Following the hearing, the appeal panel requested additional medical information from the worker's treating orthopaedic surgeon. The requested information was received and was forwarded to the worker's legal counsel for comment.

On March 18, 2013, the panel met further to discuss the case and requested that an independent medical consultant review the worker's claim and respond to questions related to his pre-existing back condition. A report from the independent medical consultant dated October 15, 2013 was later received and was forwarded to legal counsel for comment. On November 4, 2013, the panel met again to discuss the case and rendered its final 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. 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 was represented by legal counsel. The position advanced on behalf of the worker was that his current back and leg complaints were work-related. The worker had significant back problems starting in about 2007 and there were some incidents at work which had triggered the problems. It was submitted that it was a combination of the falls and incidents at work combined with the repetitive lifting activities which created the situation with the worker's back. On a balance of probabilities, the worker's evidence along with the opinion of the treating surgeon and the medical record of the family physician clearly established that the worker's current condition was work-related and it was an injury for which the worker should receive compensation from the WCB.

The employers' position:

The worker was employed by three employers during the relevant times identified by the worker in his initial Worker Incident Report. A fourth employer was identified by the worker during the course of the hearing held September 1, 2011. The employers and the time of employment of the worker were as follows:

  • BH - January 2006 to November 2006
  • KS - November 2006 to August 2007
  • PW - August 2007 to February 2009
  • DHK - February 2009 to August 2009

The only employer who participated in the proceedings was PW, who participated in the September 1, 2011 hearing via teleconference. None of the employers participated in the appeal when the hearing was reconvened on December 6, 2012.

Analysis:

The worker has been off work since August 2009, in part due to low back pain. The worker also suffered from an abdominal condition which contributed to his disability. In January 2010, the worker contacted the WCB to advance the claim for a work-related low back condition. There were two types of mechanism of injury proposed by the worker. First, he submitted that he suffered three slip and fall accidents at work in 2006, 2007 and 2008 which were responsible for his current back condition. Secondly, he submitted that his back pain was attributable to the driving and the repetitive sitting he performed during his twenty three years as a truck driver.

We will address each proposed mechanism of injury individually.

Acute injury from slip and fall accident

There were three slip and fall incidents identified by the worker when he first contacted the WCB in January 2010. The Worker Incident Report indicates: "Three slips and falls - 2006, Jan 2007 and Jan 2008 ... all falls were slips and falls on the deck of the trailer (licensed trailer)." A WCB adjudicator contacted the worker by telephone on March 11, 2010 to obtain further information and at that time, the worker advised that he believed that he suffered the 2006 injury when he was employed by BH and had a slip and fall in the back of the trailer. There was no time loss. The 2007 injury was when he was employed by PW and the fall was in the back of a van, also with no time loss. The 2008 fall was in the back of a trailer while employed with DMK. There was no time loss as a result of that injury.

At the hearing on September 1, 2011, the worker described the 2006 incident as occurring while he was employed for eight months by BH. He stated that he had one incident where he was unloading steel in Winnipeg. He bent over to pick up a bear trap off the deck when he got a sharp pain on his right side that shot up and brought him to his knees. He waited for a few minutes for the pain to subside. To him it was a minor incident and he did not miss any time from work.

The WCB file contains a doctor's report dated May 15, 2006 which was prepared in respect of a lower back injury which occurred on May 15, 2006. The mechanism of injury described was: "While pick up a trap, bending forward in a twist, sudden pain in his back; gradually worsening." The diagnosis was an acute muscular spasm lower back with sciatic irritation left side. The panel notes that at the hearing, the worker described right sided pain.

The panel has some concerns with respect to the change in description of mechanism of injury. While in early 2010 the worker initially described a slip and fall off the back of a trailer occurring while he was employed by BH, it appears that by the time of the hearing, he described a mechanism of injury which was consistent with that reported in the May 15, 2006 doctor's report. In any event, however, the panel observes that the diagnosis of the 2006 back injury was in the nature of a muscular strain which did not result in any time loss or further medical follow up. The medical charts from the worker's family physician recorded an entry on January 4, 2008 which stated: "Today, in re: back pain. Strained left lower back about 1 year ago as he bent down to pick up something. Pain settled after about 3 weeks." At the December 2012 hearing, the worker's position was that this information was in reference to the May 2006 incident and the worker confirmed that the pain from that injury settled after three to four weeks. Regardless of whether the mechanism of injury was due to a slip and fall or to a lifting incident, the panel finds that the injury suffered by the worker in 2006 was limited to a muscular strain which resolved in a matter of weeks and did not cause impairment to the worker's earning capacity. In the circumstances, we find that the worker's current back and leg complaints which became disabling in August 2009 cannot be attributed back to the muscle strain which occurred over three years earlier in May 2006. There was no lasting consequences from that injury.

The second slip and fall incident was reported by the worker to have occurred in January 2007. In March 2010, the worker described the accident as a fall in the back of a van while he was employed by PW. At the September 1, 2011 hearing, the worker's evidence was that he had one slip while he was employed by PW. It was in January 2007 and he gave a fairly specific account of making a delivery to a customer in Portage la Prairie. It was an extremely cold day with the temperature at minus thirty degrees. He had steel toed boots on and the floor was frozen, making it very slippery. There was no loading dock so he had to drag items to the back of the trailer so they could be lifted off the trailer by machine (this activity is known as "pallet-jacking"). He was parked on an incline so it was difficult to pull the items. He had unloaded three to five pallets when he slipped and both feet came out from under him and he fell straight down on his spine. He jarred his spine and it was extremely painful at the time. The worker stated that he had someone else help him finish unloading that day and he phoned his dispatcher at PW. He went to see his doctor who told him that he should take a few weeks and try to limit physical activity to allow it to heal. The worker did not lose any time from work as a result of the injury.

As the September 2011 hearing progressed and more evidence was led, it became evident that the worker in fact was not employed by PW in January 2007. PW's records showed that the worker only commenced employment with their firm in August 2007. The worker then recalled that he had been employed by KS from November 2006 to August 2007. This led to an adjournment of that hearing.

At the December 6, 2012 hearing, the worker was asked by the panel about the January 2007 fall while employed by KS. At that time, the worker's evidence was that he did not recall ever having suffered a fall while employed by KS and that aside from the incident where he bent over to lift the bear trap and the major fall in Portage la Prairie where he jarred his spine, he had only ever had "small tumbles" at work. There was no third incident. The worker was clear that he did not suffer any incident while working for KS. In view of the worker's evidence, the panel finds that there was no accident occurring in January 2007 for which the worker has an acceptable claim.

With respect to the 2008 slip and fall incident, it would appear that the worker was employed by PW at the relevant time (his period of employment with PW was from August 2007 to February 2009). The initial information given by the worker regarding the 2008 incident was that it was a fall in the back of a trailer while employed with DMK and that there was no time loss. At the September 2011 hearing, upon questioning about the incident, the worker became unsure as to the dates, but then clarified that the incident in Portage la Prairie likely occurred in 2008 when he was employed by PW. The information provided by the PW representatives appearing at the September 2011 hearing was that their payroll records showed that the worker was not paid for either pallet-jacking or hand-bombing in January or February 2008. The PW dispatcher also gave evidence via teleconference and he indicated that he had no recollection of the worker having reported suffering a workplace fall while employed by PW.

At the December 6, 2012 hearing, the worker's position was that there had only been one major slip and fall incident and that it occurred in December 2007 while he was employed by PW. The details of the incident were those described as the slip and fall suffered while pallet-jacking in Portage la Prairie. The worker's evidence was that he fell straight down on his spine but he did not go to a doctor until January because he was working during the Christmas vacation and no doctor was available. The injury did not prevent him from walking but from that point onwards his back condition got worse. He lost feeling in his legs and experienced burning and tingling.

The medical charts from the worker's family physician confirmed that the worker did attend on January 4, 2008 for back pain. The chart notes indicate the history of straining the back about 1 year prior while bending down (referenced earlier in these reasons) and history of some numbness in the left leg in March or April 2007. The notes state: "Has been having ongoing pain in the left lower back/radiating into the left leg, burning pain, and numbness and tingling in his left leg, and pain/pressure in the left lower back."

The panel places significant weight on the fact that the chart notes indicate: "Has to do repetitive bending and lifting at work" but make no mention of a significant slip and fall accident occurring in either December 2007 or January 2008. They also do not indicate that there was a recent change or worsening of the worker's low back condition or any recent trauma to the back or spine, as would have been expected if the worker had suffered a significant slip and fall during the few weeks prior.

In order to find that the worker suffered a slip and fall in 2008 for which he has an acceptable claim, there would have to be evidence of an event which occurred in 2008 (or late 2007) which caused the worker to suffer an acute injury. The panel finds that the evidence in this case is not sufficient to satisfy us that an event and an acute injury resulting from that event has occurred, for which a WCB claim may be accepted. In particular, we note that virtually all of the usual indicators of an accident are absent, including:

  • No report of injury to the employer;
  • No report of injury to the WCB;
  • No immediate medical treatment sought;
  • No disability from work;
  • Physician's records reflect no history of accident or mechanism of injury, nor do they reference an acute onset of symptoms.

Further, the panel notes that the worker's report of mechanism of injury has been inconsistent through the course of these proceedings. While the panel acknowledges that considerable time has passed since the events in question and memories fade, the uncertainty regarding the events means that we are not satisfied on a balance of probabilities that facts sufficient to open a claim have been established. The worker's changing position is more consistent with an honest attempt by the worker to find a hindsight connection between his employment and the condition which now disables him.

We therefore find that the worker does not have an acceptable claim for accidents occurring in January 2007 and January 2008. We further find that the worker's current back and leg complaints are not related to the May 15, 2006 compensable injury. The worker has no claim for his current back and leg complaints as being related to an acute injury suffered at work.

Cumulative injury from years working as a truck driver

The second issue concerns whether the back and leg difficulties currently being experienced by the worker can be related to his many years of work as a truck driver. In order for the worker's appeal to succeed, the panel must find that his current condition was caused by the cumulative effect of employment in the trucking industry.

The primary support for the worker's claim for cumulative injury is the February 4, 2011 report from the treating surgeon who relates the worker's current back condition to his work duties. Legal counsel placed great reliance on this opinion and stressed that the surgeon was highly qualified to give the opinion and that there was no competing medical opinion.

The treating surgeon's February 4, 2011 report indicates that the worker was employed in long distance trucking with a component for infrequent heavy lifting. The condition for which the surgeon treated the worker was spinal stenosis largely due to lateral recess bilateral nerve root compression at L5-S1 secondary to an isthmic spondylolytic spondylolisthesis. In response to questions posed by legal counsel, the surgeon responded:

  1. The association between the symptoms [the worker] presented with in his initial spine OPD assessment related directly to an injury at work on a subjective basis, as this is exactly what [the worker] reports. His radiographic diagnosis of spondylolytic spondylolisthesis cannot be exactly dated and may very well be related to repetitive lifting activities that [the worker] performs on the job. Overall, it is my opinion that [the worker's] acute symptoms were related to an injury at work and whether the injury created the spondylolytic defect or exacerbated the existing partially healed defect is unknown, but it is clear that work related issues created his symptoms.
  2. The second question you raise relates to the impact of repetitive acts carried out in the course of his truck driving duties and as I mentioned above, these repetitive acts may very well be primarily responsible for the isthmic defect or alternatively may exacerbate the bony defect. Which is the issue is impossible to determine given the imaging that is available.

It is notable that, once again, the mechanism of injury is somewhat of a moving target. While repetitive lifting is cited by the treating surgeon, the position put forward by the worker is repetitive sitting as a truck driver. Further, it would appear from the November 17, 2010 referral letter that the worker's WCB file was not forwarded to the treating surgeon for review so the extent to which the treating surgeon was aware of the worker's specific job duties is unclear.

The worker's diagnosis of an isthmic spondylolytic spondylolisthesis is not a common condition. The panel's understanding is that there are different types of spondylolisthesis and while some may be caused by repetitive trauma, others are congenital or may be degenerative in nature. In order to obtain a fuller understanding of the worker's current back condition the panel requested an independent orthopaedic surgeon with no prior involvement in the claim to conduct a comprehensive review of the medical file and provide his expert opinion. When requesting the opinion, the panel advised the independent surgeon of the findings of fact the panel had made regarding the worker's job duties, which were as follows:

  • The worker was employed as a long-distance truck driver from 1985 to 2009;
  • The worker started driving trucks at age 21;
  • The first 10 years as a truck driver involved local driving and the remaining 12- 13 years consisted of cross country long distance driving;
  • The worker drove flat decks, super Bs (two trailers) and vans (53 foot tractor trailers with an enclosed load);
  • The worker had an air ride seat in all the trucks he drove, except for a six month period in 2007 when he had a faulty air ride seat;
  • When he drove long distance, the worker mainly transported steel and lumber which required him to tarp, chain and/or strap down loads. These duties were performed two to four times per week;
  • Tarps weighed approximately 100 pounds and would sometimes have to be carried by the worker to the top of the load. Generally, two tarps would be required for a trailer and while driving a super B, this would mean four tarps. The tarps were attached using bungee cords;
  • Tying down involved throwing straps over the load of lumber and cranking them using a tension bar. The worker would use his chest and put his weight onto the bar to tighten the strap. Tying down was also performed by placing chains over and through the top of a load of steel then hooking them on each side of the trailer to keep the load secure to the deck. The chains were a little more difficult as they would weigh from sixty to one hundred pounds;
  • In his last few years as a truck driver, the worker moved away from driving flat decks and super B's, and started to drive vans. When driving vans, the worker would occasionally be required to load/unload trailers with the use of a mechanical pallet jack. The weight of the skids being moved with the pallet jack could be up to 2000 pounds; and
  • The worker performed occasional loading/unloading by hand with weights up to 75 pounds.

The independent surgeon produced a 13 page report dated October 8, 2013 which made the following conclusions:

  • In all probability [the worker] had a pre existing presumably unknown L5 on S1 spondylolisthesis secondary to L5 spondylolysis. If it developed from repetitive use while working, more acute problems and more disability would then have been expected from 2006.
  • It is not my opinion that [the worker's] career as a truck driver created the spondyloysis. It is my opinion that he had a pre existing presumably asymptomatic spondylolysis.
  • It is my opinion that this defect in the spine could make [the worker] vulnerable to excessive strain and repetitive loading and potentially make him symptomatic.
  • Into 2009 it would appear that [the worker's] truck driving duties were an aggravating factor in him becoming more symptomatic. However stating when a specific activity or accident or trip caused aggravation is not obtainable from the medical file. [The worker's] subjective reasoning is based on his described accidents at work and accumulative effects of working with the trucking industry for a number of years. Objective evidence to support his claims is scant in the submitted medical files.
  • The record does not describe a specific sentinel event that would have caused a spondylolisthesis or have aggravated a pre-existing spondylolysis.
  • If accumulated stress disorder is used to explain worsening of symptoms from a spondylosis (sic) then one would have to use not only the effects of mechanical stress from work but the mechanical stresses occurring from everyday activities at home and recreationally. Saying [the worker] has become totally disabled from repetitive or accumulative work stresses alone is poorly documented on his medical files.

The panel is of the view that the independent orthopaedic surgeon conducted a thorough and balanced analysis of the medical information. We do acknowledge some of the criticisms outlined by legal counsel regarding the report and we agree that the independent surgeon neglected to directly address some of the questions posed by the panel. We find, however, that the general conclusion that the spondylolysis was pre-existing and was not caused by the worker's career as a truck driver is well reasoned and supported by the evidence. The panel particularly notes our findings of fact that the worker's work over the years did not involve an excessively rough ride as he was equipped with an operational air ride seat for nearly his entire driving career. The treating surgeon referred to the spondylolytic spondylolisthesis as being attributable to repetitive lifting performed by the worker, but as outlined earlier, the panel found that the lifting duties performed by the worker were primarily limited to the strapping and tarping which the worker was required to do two to four times per week. We do not view this frequency as constituting repetitive lifting. We did not see activity involving loading that would tend to cause fracturing of the pars inter articulus areas or which were akin to the heavy load with hyperextension as is seen in sporting activities such as weight lifting, gymnastics and football, which were the factors described in the independent surgeon's report.

Ultimately, the decision rests with the panel to determine whether we are satisfied that cumulatively, the worker's job duties performed over time caused his current back and leg complaints. On a balance of probabilities we are not. We do not find that there was sufficient trauma or repetitive lifting involved in the work duties such as to cause the worker's spondylolysis. Further, we do not find that the worker's job duties placed any unusual additional physical demands on the worker beyond what he might encounter in the activities of daily living such as to aggravate the pre-existing spondylolysis, with the result that surgery was required. In addition to the lifting activities being intermittent, the panel notes that in his later years of truck driving, the worker had moved away from driving flat decks and super B's, thus reducing his strapping and tarping duties even more. The evidence does not convince us on a balance of probabilities that the worker's cumulative years of employment were responsible for his current back and leg complaints, either on a causative basis or as an aggravation/enhancement.

The worker's appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of December, 2013

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