Decision #15/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing back complaints were not related to an accident arising out of and in the course of his employment. A hearing was held on January 29, 2015 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable for a temporary aggravation of his pre-existing back condition.Decision: Unanimous
Background
On September 3, 2010, the worker filed a claim with the WCB for low back pain that he attributed to his 20 year history of driving a truck.
The Employer's Accident Report stated that the worker did not report a work-related incident with respect to his back complaints, only that his back became painful on August 30, 2010. When a co-worker asked him what he had done, the worker responded that he was just overweight.
On September 24, 2010, a WCB adjudicator spoke with the worker to discuss the onset of his back symptoms and the reporting of a back injury to his employer. The WCB also spoke with the dispatcher identified by the worker to verify his knowledge of the worker's back complaints.
A Doctor's First Report dated September 2, 2010, indicated that the worker was seen for treatment and was diagnosed with low back pain and a possible disc protrusion. No specific trauma was reported and the worker described constant vibration and bumping while driving on gravel roads exacerbated his back pain.
By letter dated October 8, 2010, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to establish a relationship between his low back difficulties and an accident arising out of and in the course of his employment. The decision was based on the following factors: No accident or workplace injury was reported to his employer prior to or after August 30, 2010 and the worker reported on several occasions that his back difficulties were related to his weight. On July 5, 2014, the worker appealed the decision to Review Office.
On September 4, 2014, Review Office considered the worker's appeal along with the employer's submission dated August 13, 2014. Review Office determined that the worker's back pain was not caused by any hazard in his working environment and therefore it did not arise out of or in the course of his employment. Review Office found that the worker's body weight was a major contributing factor to his back pain. On September 16, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and the policies of the Board of Directors.
The key issue to be determined by the panel deals with causation and whether the worker’s low back injury arose out of and in the course of his employment.
In this regard the Act provides:
Subsection 1(1): accident means a chance event occasioned by a physical or natural cause; and includes...
(b) any
(i) event arising out of and in the course of the employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment...
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, .... (emphasis added)
WCB Policy 44.10.20.10, Pre-Existing Conditions, deals with workplace injuries involving pre-existing conditions.
Worker's Position
The worker was self-represented.
The worker questioned why the employer was present as he only worked for this employer for 2 years whereas his condition is due to many years of truck driving.
The worker indicated that he began truck driving in the early 1990s. He did different types of driving including long haul driving and short haul gravel pit trips. He often worked up to 18 hours a day. While with the accident employer, he said he worked as much as 16 hours a day on occasions.
The worker described his injury as a repetitive strain injury. He acknowledged that this diagnosis was not provided by a physician.
The worker said that he developed a problem with the veins in his legs. He was not treated for this condition but was told to wear compression stockings. He has not used compression stockings.
Regarding treatments and tests for his back, the worker advised that he did not have a CT scan, noting that his pain had subsided. He said that at the current time he has no back pain.
He advised that he tried to return to trucking in 2014 but on the first day on the job, while using the clutch, he felt the same pain that he had felt when working for the accident employer.
Employer's Position
The employer was represented by its Safety Supervisor. The employer's Human Resources Manager was also in attendance.
The employer representative advised that the employer agrees with the Review Office decision that the worker has a pre-existing condition which was not related to his employment with the employer. He said there was no event in the workplace that caused the worker's back problem. He also said that the pain is not caused by truck driving.
The employer representative provided information on the worker's hours of employment in 2009. He did not bring records for 2010. The information indicated that the worker's longest day in 2009 was 13.5 hours, and that he averaged between 9 and 10 hours each day.
In his closing comments, the employer representative said the worker aggravated his low back pain but that there was no basis for a claim under the Act.
Analysis
The issue before the panel is claim acceptability and whether the worker’s back injury arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the worker’s injury was caused by, aggravated or enhanced by an accident that arose out of and in the course of his employment. In other words, that the worker's job duties with the employer were the cause of his injury or aggravated/enhanced his pre-existing condition.
On a balance of probabilities, we are able to make this finding. The panel finds that the worker's duties as a truck driver aggravated his pre-existing back/hip condition. These duties included sitting in the cab of a dump truck for lengthy periods of time and driving over rough roads subjecting the worker to constant vibrations and bumping. While the worker and employer disagreed over the length of the worker's work day, the panel notes that at the very least the worker's average shift in 2009 was 9 to 10 hours.
The worker believes that his career and long term employment as a truck driver was the source of his on and off symptomology. The panel reviewed the medical evidence before it. The panel was unable to find, on a balance of probabilities, that the worker's occupation was causative of his pre-existing back difficulty.
The Pre-Existing Conditions Policy defines a pre-existing condition as "a condition that existed prior to the compensable injury." The file evidence establishes that the worker suffers from a pre-existing low back and hip condition. The worker stated that he has had a back problem since he began driving a truck in the 1990s. The medical evidence indicates that the worker's pre-existing condition was present before the worker became a truck driver.
A report from the worker's former family physician dated November 15, 1988 indicates that the worker had "a long history of visits to my office since August 1987 with complaints of backache. He had also been referred to multiple specialists including Orthopedists, Neurologists, Chiropractors, and the Pain Clinic at the Health Sciences Centre, all for complaints of back pain lasting the past one and a half years."
A November 21, 1988 physician's report from the family physician with respect to a workplace injury on September 16, 1988 indicates that the worker experienced "a worsening of pre-existing back pain after a particularly heavy day of work." The physician notes a diagnosis of "recurrent lumbo-sacral back strain" and identifies the worker's pre-existing condition as "chronic recurrent lumbosacral strain."
The panel finds this evidence compelling proof the worker's back problems predated the worker's career as a truck driver. The panel notes that in August 2010 the worker began to notice an increase in his low back pain. These symptoms began to worsen to the point the worker was no longer able to continue his duties. As such, the worker stopped working on August 30, 2010 and sought medical attention. The panel finds that this aggravation of his pre-existing condition was directly related to his job duties and, as such, is compensable.
The panel finds that the aggravation of the pre-existing condition resolved by October 6, 2010. On this date, the worker was examined by his treating physician who noted that recovery is satisfactory. The panel also notes that the worker was scheduled to have a CT after this appointment but did not attend as his back was feeling better at that time.
On the date of the hearing, the worker had no back pain.
The worker also noted problems with the veins in his legs. The panel notes that a claim for his vein condition is not before the panel.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 18th day of February, 2015