Decision #71/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for injury occurring in April 2013 was not acceptable. A hearing was held on February 1, 2016 to consider the worker's appeal.
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 low back pain that commenced in early April 2013. The worker reported that the last date he worked following the incident was November 18, 2013. The worker stated that his boss was aware of his symptoms and figured that he could manage with pain medication. The worker believed that his injury was caused by his duties as a truck driver which involved the following:
repetitive climbing in and out of a gravel truck. There were 3 steps to get into the truck and he climbed in and out of the truck approximately 12 times a day.
2 to 4 hours per day of continuous driving without a break.
loading and unloading material onto the truck with a wheel loader, approximately six to seven times a day.
hand cranking tarp. The crank was on the side of the trailer.
driving on bumpy roads.
The worker reported that the truck had a national air ride seat and air ride suspension.
The Employer's Accident Report stated that the April 1, 2013 accident was reported on November 20, 2013 to the safety officer. The worker reported left leg and lower back sciatic nerve progressively getting worse.
The WCB obtained the following medical reports related to the worker's back condition:
April 30, 2013 CT lumbar spine
July 30, 2013 MRI of the spine
October 24, 2013 consultation report
November 1, 2013 x-ray report of bilateral sacroiliac joints
Doctor First Report for an examination on November 19, 2013
Physiotherapy Initial Assessment dated November 27, 2013
December 5, 2013 consultation report
Doctor Progress Report dated December 9, 2013
On January 24, 2014, a WCB medical advisor reviewed the medical reports and opined that the diagnosis was lumbar radiculopathy. He stated that this condition may occur idiopathically without relationship to physical activities. "If physical actions are implicated in the causation of lumbar radiculopathy, the radiculopathy symptoms will most often arise acutely. In these situations, lumbar radiculopathy may follow load applied to the spine (i.e. lifting) particularly during lumbar flexion or rotation."
In a decision dated January 28, 2014, the WCB advised the worker that his claim was not acceptable as the WCB was unable to find that the onset of his symptoms were attributable to his job as a truck driver. The adjudicator noted that the first medical information that attributed the worker's symptoms to his job duties was on November 28, 2012 and December 9, 2013. The report of October 24, 2013 made no mention of a work-related cause and the diagnostic test results included spondylolysis of L5-S1 vertebra and spina bifida which strongly correlated to heritable or degenerative changes. The adjudicator referred to the WCB medical opinion that the probable diagnosis was lumbar radiculopathy and that the condition can occur for many reasons.
On February 14, 2014, the worker appealed the adjudicator's decision to Review Office. As the worker provided new information that was not previously submitted, Review Office referred the case back to initial adjudication to review the information and render a new decision.
On March 5, 2014, the adjudicator asked the employer to verify the information provided by the worker with respect to the following incidents:
an accident on a winter road that crushed the bunk and cab of the semi truck driven by the worker.
the worker falling down a flight of stairs to the control tower inside a generator van.
another fall where the worker fell out and down a set of stairs from a parts van.
In a second decision dated March 13, 2014, the worker was advised that the WCB contacted his employer to investigate the incidents he described in his appeal letter. The employer responded that while the worker verbally reported the winter road incident, he did not complain of any injuries at the time or missed time from work. The employer also checked its records back to 2003 and was unable to find any reports, verbally or otherwise, of the two fall incidents noted by the worker. Based on these findings and the diagnostic test results, the WCB was unable to find that his current symptoms were attributable to his job duties as a truck driver. On April 2, 2014, the worker appealed the decision to Review Office.
Prior to considering the worker's appeal, Review Office obtained additional medical information from the worker's treating practitioners.
In a May 6, 2014 report, the treating orthopedic surgeon stated, in part:
The imaging studies include x-rays which I took today, as well as an MRI scan which was done in Brandon a few months back. This confirms a spondylolisthesis of L5. The L4-5 disc space is narrowed and there certainly is some foraminal stenosis explaining the patient's left-sided pain. Of some concern is the fact that he has a very chronic disc disease at L3-4...At this point I think most of his symptoms are related to the lower levels and the L3-4 disc disease is an incidental problem. However the patient was warned that this may cause problems in the future.
On June 19, 2014, Review Office was unable to establish that the worker sustained an accident on or around April 1, 2013 in accordance with The Workers Compensation Act (the Act). Review Office's decision was based on its review of the medical information on file from the worker's attending physician dated April 23, 2013, the opinion of the WCB medical advisor dated January 24, 2014, the July 20, 2013 MRI results and the May 6, 2014 comments by the treating orthopedic surgeon. On October 6, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel met to discuss the case and requested additional information from the worker's employer as well as medical information from two treating physicians. The requested information was later received and was forwarded to the worker for comment. On April 19, 2016, the panel met further to discuss the case and rendered its decision.
Reasons
Analysis
The Appeal Commission and its panels are bound by the Act, regulations and policies of the 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 provide 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.
The Act defines accident as:
"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;
In this appeal, the worker is appealing the WCB decision that his claim for a back injury is not acceptable.
Worker's Position
The worker was self-represented. The worker said his injury was caused by a motor vehicle accident on a winter road. He described his workplace accident to the panel:
I come over a hummock (sic), touched my brakes, the trailer gave me a push and that was it, lost control of the semi. It shoved me to the five-foot snow bank, and those snow banks are usually pretty hard. I’ve been on winter roads before.
Trailer swung around, nailed the sleeper and pushed everything and threw me to the side of the cab of the truck. Well, here you are, now you’re on the winter road and you’ve got a truck, well does it run? Yes, it does. I’ve got two fuel tanks ruptured. One of the landing gear legs from the trailer, that’s how tight the trailer came back around and slammed against the truck, ruptured that fuel tank and the other side of the tank … was ruptured from that hard snow bank.
He said that he made temporary repairs and drove to the employer's yard. He advised that the employer subsequently made substantial repairs to the vehicle i.e. took the cab off it as a result of the accident. The worker advised that he reported the accident to the employer. The worker was not certain of the date of the accident but thought it was in the winter of 2013.
In answer to a question, the worker advised that he did not see a physician immediately. He said that he continued to work.
The worker advised that late in 2013, his injury worsened to the point that he stopped work. He advised that he ultimately had surgery. He said that while the surgeon identified 2 problems, he was only able to operate on one of the problem areas but that it made a big difference and he was able to return to work to light duties.
About 7 week after the surgery, he was able to return to light duty work. The worker advised that since he went on light duties, his hours have been reduced down to 140 - 160 hours bi-weekly from 200 hours bi-weekly before the accident. He also advised that he was given a better vehicle when he returned to work.
The worker described other incidents where he was injured at work but continued to work. He said he reported these incidents to the employer. He suggested these incidents also contributed to his back problem. He also suggested that his duties as a truck driver were a factor.
The worker said he had pain in the centre of his back near the belt line and below the beltline. He said it progressed down the left side and his whole leg would become numb.
Employer's Position
The employer did not participate in the appeal but provided information upon the request of the panel.
Analysis
The worker appealed the WCB decision that his claim for injury to his lower back was not acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident which arose out of and in the course of his employment. In other words, the panel must find that the worker's lower back condition was caused, aggravated or enhanced by his work duties. The panel was not able to make this decision.
The panel finds the worker to be a poor historian as it related to events and conversations which occurred since the accident on the winter road. The panel sought additional information from the treating physicians and the employer to more fully investigate the worker's claim. While the panel was able to confirm through the employer that the worker was involved in a motor vehicle accident, we have not been able to confirm that the worker sustained an injury arising out of and in the course of a workplace accident. In making this decision the panel relies upon the following information:
the worker did not report a workplace incident to his family physician until long after the accident.
the worker's family physician's April 23, 2013 chart note indicates that the worker "has had pain in his back, no discrete injury, currently or previous." This contradicts the worker's position that he suffered a traumatic injury while driving on the winter road.
the employer's representative advises that he did not know the worker was injured until late 2013, although he confirmed that the worker was involved in an accident with one of the employer's vehicles. The employer's information and the worker's statements regarding the extent of the vehicle repairs and extent of the accident were not supported.
medical reports from consulting physicians do not identify a traumatic workplace accident as the cause of the worker's diagnosed condition nor do they identify the worker's duties as a cause of his condition
the worker advises that he did not miss time from work due to the winter road accident until the end of November 2013. This is confirmed by the employer's records of the worker's hours for the months of April 2013 to November 2013. These records confirm that the worker continued to work full regular hours and significant overtime until the end of November 2013.
the medical information does not support a finding that the worker sustained a traumatic injury.
The panel finds that the information on the file is not consistent with the worker having sustained a traumatic injury in the workplace. Nor does the information support a finding that general work duties caused or contributed to the injury. The panel finds, on a balance of probabilities, that the worker's claim is not acceptable.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerC. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of May, 2016