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 compensation was not acceptable. A hearing was held on May 10, 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

On May 13, 2015, the worker filed a claim with the WCB for lower back difficulties which he related to his job duties as a park caretaker. The worker reported that he first noticed symptoms in 2007 or 2008 and that his doctor told him that he would have to live with the pain. The worker indicated that he had told a supervisor 5 or 6 years prior to filing his claim that he was going to Winnipeg for back injections.

On May 21, 2015, a WCB adjudicator contacted the worker to obtain additional information related to the nature of his job duties, the onset of his back difficulties, details regarding medical treatment, and how and when he reported his back difficulties to the employer. On May 29, 2015, the adjudicator spoke with two employer representatives regarding their knowledge of the worker's back complaints.

In a decision dated June 17, 2015, the WCB advised the worker that his claim for compensation was not accepted. The adjudicator noted that medical reports on file provided a diagnosis of foraminal stenosis in relation to his lower back difficulties, an October 2014 MRI showed degenerative changes in his lower back as being more pronounced, and that surgery had been recommended. It was determined by the adjudicator that the medical evidence did not establish a causal relationship between the MRI findings/diagnoses and the worker's employment duties.

On October 20, 2015, the worker appealed the adjudicator's decision to Review Office. In his written submission, the worker stated, in part:

In the letter denying me WC benefits it mentions "accident." Well my accident happened over time, time that was spent bouncing on the tractor for hours on end, as well as having to handle 200 lb. picnic tables by myself. To me this is an "event arising out of and in the course of my employment."

I have never been a complainer, and after having tried all the different options and treatments over the years, I just continued to go to work and "learned to live with the pain".

In a letter to Review Office dated November 5, 2015, the employer stated they supported the worker's claim for compensation benefits.

On December 4, 2015, Review Office confirmed that the worker's claim was not acceptable. Review Office accepted the worker's position that his back was sore while at work. Review Office found no evidence, however, to support that his degenerative disc disease was related, even in part, to his work duties. The worker reported no specific accident which caused his back difficulties. Several MRI studies on file dated September 6, 2009, July 15, 2011 and October 20, 2014, showed a slow progression in degeneration at L4-L5. This was consistent with the natural history of degenerative disc disease. Review Office was also unable to find evidence to support that his workplace activities contributed to, or accelerated, the rate of degeneration.

On January 11, 2016, 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 policies of the WCB's Board of Directors.

Subsections 1(1) ("accident") 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 accident has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.10.20.10, Pre-existing Conditions, (the "Policy") applies where a worker has a pre-existing condition.

The following definitions are set out in the Policy:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented, and attended the hearing with his wife. The worker made a presentation, and the worker and his wife responded to questions from the panel.

The worker's position was that his accident occurred over time, as a result of time spent bouncing on a mower day in and day out, and handling heavy objects. He compared his condition to other conditions, such as carpal tunnel syndrome and hearing loss, which he submitted are considered progressive and have been accepted under the Act. The worker referred to his submission to Review Office, and noted that when he first felt the pain in his lower back, the doctor simply told him he would have to live with it. He was not told that his job would make it worse. He had worked all his life, by choice. He was good at his job and found satisfaction doing it properly. His employer had never told him that he should document any accidents or seek compensation.

The worker described his job duties in detail at the hearing. He had been working for the employer for 15 years, and was responsible for maintaining a 60-acre park, which he did on his own. The park had previously been a cow pasture and the ground was generally rough and uneven. It was well-wooded for the most part, and also had baseball diamonds. Some of the trees had been taken out before he started working there, but the holes had not been filled in and were 8 to 10 inches deep. When he started, he had been knocked out on the mower 3 times when he hit those holes and before learning where everything was. The park was used for various gatherings and for camping. Campers and big motor homes would sink into the ground and leave big ruts.

The worker stated that it would take him 4 days of steady cutting each week, at 6 to 7 hours a day, to mow the entire park. He would go around each tree. While mowing, he would be continually bouncing to the side, and up and down. He could not avoid the uneven ground or roughness. The vehicle ruts were the worst. In addition to the constant bouncing or jiggling from the mower, he would occasionally hit a jarring bump, which would send a jolt up his back. The worker said that it was fair to say that he would experience a rock and roll motion, front and back and side to side, about 5 hours a day, and about 4 to 5 heavy jolts a week.

Away from work, the worker said that his back pain was not too bad while he was sitting. He can sit for a couple of hours before having to get up and move. Walking and standing are another matter. He cannot stand or walk very long, especially on hard ground, and is in constant pain when doing so. His lot at home is 190 feet long, and he cannot walk from one end to the other without sitting down and just resting or stretching his back. He can drive in a car for about 2 hours without having to stretch, then drive another 2 hours after taking a break.

The worker noted that he never had any back problems before, and his problems only developed after he started working for the employer. He stated that he was aware that everybody's back is going to wear, but did not believe that his back would be in the shape it is in if he had not been on the mower day after day.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on this appeal is whether or not the claim is acceptable. In order for the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's lower back difficulties arose out of or in the course of his employment, or in other words, were caused, aggravated or enhanced by his job duties. The panel is unable to make that finding.

The panel notes that the worker has not suggested that he suffered an acute injury in 2009, the date of the incident as set out in his claim, or at any other time. The panel finds that there is no evidence to indicate that there was any one particular event that might have caused his lower back difficulties.

The panel went on to consider whether the worker's lower back difficulties developed over a period of time as a result of his work duties.

The panel notes that the only diagnosis which has been identified on file is severe degenerative disc disease. Medical information on file including 3 MRIs dating back to 2009 shows that the worker's condition has become progressively worse over the years, consistent with the nature of degenerative disc disease. While the information indicates that the worker has experienced increased pain while performing his job duties, the panel is unable to find, based on the evidence before us, that the performance of those duties has impacted the natural progression of the disease.

The panel acknowledges that the worker's physicians have attributed the onset and progression of the degenerative disc disease to the worker's job duties; however, in the absence of an acute back injury and the presence of a steady worsening of the worker's back condition, the panel finds that the worker's back condition is a medical condition that is not in any way related to the worker's job duties.

The panel further notes that the worker experiences pain and difficulties not only at work, but also at home, while performing different activities of daily living.

The panel recognizes that the worker is in a considerable amount of pain, and that the pain becomes worse when he performs his work activities. We are unable to find, however, that his work activities have caused, aggravated or enhanced his difficulties or condition, in whole or in part.

The panel therefore finds, on a balance of probabilities, that a causal connection has not been established between the worker's employment and his lower back difficulties. The claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

- Presiding Officer

Signed at Winnipeg this 7th day of July, 2016