Decision #25/16 - Type: Workers Compensation
Preamble
The employer isappealing the decision made by the Workers Compensation Board ("WCB")to accept the worker's claim for compensation. A hearing was held on January 18, 2016 to consider the employer'sappeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
The worker filed a claim with the WCB for a back injury that occurred on October 9, 2014. The worker reported that he felt a spasm on the left side of his low back and down his left leg when he twisted when getting out of an office chair. The worker reported that he continued working and around 2:00 p.m. he was on top of a crane performing crane maintenance. He had an electric grease gun in his right hand with the nozzle in his left hand. As he reached to grease the manifold, he felt a shooting pain from his low back and down his left leg. He then stopped, got off the machine and left work.
The Employer's Accident Report stated that the worker, on October 9, 2014, felt sudden pain in his low back from standing up after tying his shoe. The employer further stated:
This gentleman was only scheduled to work one day for us. Incident report was filled out in pm with instructions to worker that if pain persisted at end of shift to tell supervisor and safety department so that incident could be run through proper channels, employee never informed [employer] of any further issue. We now find that during the week before going to hospital, the employee worked a full shift for another contractor...The employee only worked for us for one day, and hadn't worked for us for previous 6 months.
Subsequent file records showed that primary adjudication contacted the worker to further discuss the job duties he performed on October 9, 2014 which led to the onset of his back symptoms. The WCB also spoke with the worker's supervisor who confirmed the job duties described by the worker and a co-worker who confirmed that the worker was experiencing back difficulties on October 9, 2014.
Medical information on file was reviewed by a WCB medical advisor on December 22, 2014 who stated:
"The reported workplace duties would not likely cause the herniation of previously normal lumbar disc at two levels in a 22 year old. However, in the setting of significant pre-existing disc degeneration (possibly including herniation) further symptomatic disc degeneration ultimately resulting in radiculopathy may occur at any time, often with no apparent trigger, or with less significant mechanisms than noted above. In [the worker's] case it seems likely that his recent back difficulties reflect a combined effect of:
1. pre-existing asymptomatic lumbar disc degeneration and
2. effects of the workplace duties/activities performed on Oct 9 14.
This is based on:
· the reported onset of back and left leg symptoms on Oct 9 14 at the workplace and
· consideration of the work duties performed, particularly those reportedly performed later that day. These reportedly involved carrying a heavy tool belt and working in awkward postures and reportedly were associated with development of left leg symptoms subsequent to the prior onset of low back symptoms."
In a decision dated December 22, 2014, the WCB denied the claim as it was the opinion of primary adjudication that the worker's job duties of October 9, 2014 and specifically twisting while getting up out of a chair would not cause a lumbar disc herniation.
Between January and May 2015, the worker's representative provided the WCB with additional information and medical reports to support that the worker's back condition occurred during the course of his employment on October 9, 2014.
In a second decision dated May 11, 2015, the WCB case manager stated she was unable to relate the worker's back difficulties when he was admitted to hospital on October 15, 2014 to his incident on October 9 of getting out of a chair. She noted that the worker was assessed by physicians twice prior and discharged, and that these initial medical assessments showed no evidence of significant injury or trauma. On May 21, 2015, the worker appealed the decision to Review Office through his representative.
On June 24, 2015, Review Office determined that the worker's claim for compensation was acceptable. Review Office indicated there were two work accidents that caused injury to the worker on October 9, 2014. The first accident occurred while twisting to get out of the office chair and the second accident occurred when the worker "reached out" to grease the manifold. Whether or not the worker had an injury by accident as defined in the Act was an adjudicative decision and not a medical one. Review Office noted that a WCB medical advisor and the worker's spinal surgeon provided evidence that the worker's duties while at work on October 9, 2014 caused the injury of a disc herniation.
On July 27, 2015, a representative with the accident employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.
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.
In this appeal, the employer is appealing the WCB Review Office decision that the worker's claim is acceptable.
Employer's Position
The employer was represented by its Health and Safety Manager. The employer representative submitted that the worker's claim should not be accepted. In support of this position he noted:
· the worker was called in to work for the employer for just one day. He is not a regular employee of the employer
· 45 minutes into the shift the worker claimed to have been injured when he was getting out of a chair after completing an employment orientation
· a co-worker is the only witness and he, not the worker, reported the incident
· the worker was told to contact the employer's safety manager if his symptoms persisted
· the worker did not contact the employer
· there were no hazards of the employment involved in the injury
· he had done no physical duty for the employer. He rose from a chair, and if that was the acute injury, it had already been thrown out a few times by the Workers Compensation Board in its earlier decisions
· the employer does not accept that an insignificant task of getting up from a chair can cause the significant injury the worker sustained
· the employer believes the worker had a prior injury or pre-existing condition which is the cause of his ongoing symptoms
· the employer is at a disadvantage because the worker was only hired for a day
· a day after the accident, the worker worked for another employer
· there was no reference to spasms in the original medical reports
· the worker stated earlier that at the first break, when he stood up, he felt the pain in the lower back and hamstring. At the hearing, he just mentioned the lower back, and he did not feel the spasm into his leg until later on in the day.
· the worker is an apprentice and is being provided benefits at a higher rate of pay than an apprentice
Regarding the adjudication of the claim, the employer representative noted that the WCB denied acceptance of the claim on two occasions, only to have the Review Office accept the claim. He noted that a medical advisor opined that the workplace duties would not likely cause the herniation of previously normal lumbar discs at two levels in a 22 year old and that the worker had pre-existing asymptomatic lumbar disc degeneration at the time of the injury.
In answer to a question, the employer representative confirmed that he was not at the work site but is familiar with the worksite. He explained the hiring process used by the employer in obtaining the services of skilled workers such as the worker. He advised that the employer asks for a set number of qualified workers but does not ask for specific workers by name.
In closing, the employer's representative submitted that:
My issue was that it be the responsibility of [employer]. I think we’re shown that he worked a heavy-demand job for several months prior, and for a shift after, and in the meantime, worked for us for one day, doing duties that the WCB deemed unable to cause such a herniation.
He noted that the co-worker and other witness are in the same trade as the worker, and expressed concern that persons in this trade will stick up for one another and that it may impact the evidence that the witnesses provide.
He also noted that the worker provided conflicting information as to when symptoms first appeared. He stated earlier that at the first break, when he stood up he felt pain in the lower back and hamstring. He noted that at the hearing today, the worker mentioned the lower back, and that he did not feel the spasm into his leg until later on in the day, while working on a crane.
Worker's Position
The worker was represented by legal counsel. The worker answered questions posed by the panel.
The worker's counsel submitted that the claim is acceptable. She noted:
· the diagnosis of the worker's condition is a two level herniation of the worker's back at the L4-L5 and L5-S1 levels.
· the worker had no history of back problems or back pain
· on October 9, 2014 the worker was on a short-term lay-off so accepted work with the accident employer
· a co-worker reported that at the start of the morning the worker appeared fine, and was limber and energetic but later in the morning the worker was having noticeable back difficulties
· the worker reported the incident to the supervisor but indicated that he wanted to work through the day
· after lunch when working on a crane, the worker felt a pop in his back, causing more intense pain in same back area that he injured in the morning
· he then filled in an incident report and left work
· over the next couple days, the worker's symptoms worsened
· the worker then obtained medical attention, including attending at two hospitals
· subsequently he had an MRI
· the worker contacted the employer after he had been admitted to hospital
· the worker and girlfriend attempted to contact the employer's safety manager but did not get a call back from the employer
The worker's counsel submitted that the worker did not have a pre-existing condition as suggested by the first WCB medical advisor. She noted that a spine specialist and the second WCB medical advisor agreed there was no pre-existing condition. Regarding the slow onset of symptoms, she referred to the March 30, 2015 opinion of the spinal surgeon that:
"In most cases, a disc herniation is not an all or nothing type of phenomenon, i.e., that degree of disc herniation in a rapid fashion would cause severe neurologic injury, hence, most disc herniations are in a gradual fashion with gradual increasing leg pain, numbness, or weakness."
The worker's counsel agreed with the Review Office decision that the worker had two accidents on October 9, 2014, the first being when he felt pain arising from the chair, and the second when he was servicing the equipment.
Regarding the second injury, the worker's counsel submitted that:
Looking at the second accident, where reaching with the greasing gun, and now feeling the pop in his back and the further pain, I would submit that there’s little doubt that it occurred in the course of and arising out of employment as well.
The worker answered questions from the panel. He described his work on October 9th:
· began day with orientation
· then locked out a crane and he and his co-worker performed a cable change and greasing which took about an hour
· then took a coffee break in the break room, signed a form he had missed in the morning, and when rising from a chair he felt pain in his back.
· he reported to the employer representative but said he would try to work through it.
· worked on second crane, ensuring it was locked out and then greasing the equipment
· he was fully extended using a grease gun in his hand when he felt a pop, a shooting pain to down his foot
· he spoke to employer representative and left work
The worker confirmed that he worked for another employer after the work incident. He said that he explained to the second employer that he injured his back and was only able to do light work. He worked for the day. The work involved preparation for work later in the week. It involved erection of safety barriers, organizing slings and meeting with the staff at the site.
Analysis
The employer is appealing the WCB Review Office decision that the worker's claim for a workplace injury occurring on October 9, 2014 is acceptable. For the employer's appeal to be approved, the panel must find that the worker did not sustain an injury by accident arising out of and in the course of his employment on October 9, 2014. The panel was not able to make this finding.
The panel carefully considered the evidence on the worker's claim file, the evidence provided at the hearing and the arguments of the parties. For the reasons that follow, the panel finds that the worker did sustain an injury by accident arising out of and in the course of his employment on October 9, 2014.
The panel attaches significant weight to the following evidence:
· the witness's information regarding the worker's condition before and after the accident.
· the March 30, 2015 report of the treating spinal surgeon in which the surgeon agrees the diagnosis of disc herniations at L4-L5 and L5-S1 and that it is likely that the work performed by the worker on October 9, 2014 was the start of the disc herniation.
· the opinion of the WCB Sport Medicine Consultant that:
Given the consistency of symptoms, today's examination which included a 4/5 left sided toe extension, radicular symptoms, noted atrophy, and the noted MRI, it is reasonable that the worker's current presentation would be medically accounted for in relation to the workplace injury.
The panel finds, on a balance of probabilities, that the worker's claim for injury is acceptable.
The panel notes that the employer representative expressed concern that the worker's condition was not immediately diagnosed. He noted that the worker saw 2 physicians who did not diagnose the injury. He also noted that the worker was able to work a shift for another employer before the symptoms increased to the point that he could not work. The panel acknowledges this concern. The panel accepts the explanation for the slow onset of symptoms provided by the spine specialist in a medical report dated March 30, 2015. In reply to a question from the worker's counsel about the progression of the worker's symptoms and pain from October 9, 2014 to October 15, 2014, the spinal surgeon opined that:
The progression of his symptoms is typical of a lumbar spine disc herniation. Often, patients present with acute back pain and fleeting radicular pain followed by symptoms of further increasing back pain and progression of leg pain, numbness, and weakness. This is related to both the mechanical effect of the disc herniation on the nerve root as well as what is called a chemical radiculitis related to an autoimmune phenomenon as the inherent proteins within a disc are foreign to the body and with a disc herniation, there is a significant inflammatory response to a previously not encountered protein by the body, hence, both a mechanical and chemical effect can cause leg pain with time.
The employer expressed concern that the mechanism of injury could not cause the extensive injury the worker sustained. The panel notes there were 2 incidents, the injury from rising from the chair and the injury servicing the crane. The panel also notes the previously referenced medical opinions which indicate the injury is consistent with the mechanism of injury accepted by the WCB. The panel also notes the employer representative acknowledged that the duties described by the worker are duties that would be performed at the site and did not deny that the worker performed the duties. The panel finds that the duties on the crane involved the type of body postures that are consistent with the development of the disc herniations suffered by the worker.
Finally, the panel notes the employer's position that the worker had a pre-existing condition as suggested by a WCB medical advisor. The panel has reviewed the medical information, including the October 23, 2014 MRI, and is not able to find evidence of a pre-existing condition affecting the worker's back. The MRI does not identify any type of degenerative condition.
The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 2nd day of February, 2016