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 September 22, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on September 11, 2014 for an injury to his lower back and neck that he related to his employment activities as a furniture mover. The worker reported that he began to notice sharp pain in his lower back and neck approximately one year prior, and that his last day at work was September 10, 2014. The worker believed his injury was caused from carrying heavy furniture and appliances up and down stairs and cross strapping them (neck injury). The worker also reported:

This is something that has been going on for a period of time. I have been working in the warehouse of my workplace with the photocopy machines; shrink wrapping them from bottom to top, banding them to skids and writing out paperwork and pushing them around under the racks in the warehouse before they get shipped out. I also have been taking heavy garbage bags out, but I have been using equipment as I know I have lower back issues. I do this from 8:00 a.m. to 4:30 p.m., 5 days a week.

I have a prior claim that has been closed. I saw my doctor yesterday who advised me that this injury has gotten so severe, there is a chance that if I get jolted to the right in the right way, I could be paralyzed from the neck down.

The Employer's Accident Report dated September 17, 2014 indicated there was "no incident."

A Doctor First Report dated September 14, 2014 noted that the worker complained of severe pain in his neck and back that he related to repetitive lifting and manipulation of heavy objects at work. The diagnosis rendered was severe osteo-degenerative/post traumatic osteoarthritis of the spine, based on MRI findings.

On September 16, 2014, a WCB adjudicator called the worker to discuss his work duties, his back and neck symptoms and his reporting of his back and neck symptoms to his employer. The adjudicator also spoke with the worker's manager and several co-workers to verify the job duties described by the worker and their knowledge of the worker's back and neck complaints.

In a decision dated September 22, 2014, the worker was advised that the WCB was unable to establish a relationship between the diagnosis of osteoarthritis of his neck and spine and an accident arising out of and in the course of his employment. The adjudicator's decision was based on findings that:

• The worker never reported a neck injury in relation to his job duties;
• Past co-workers confirmed there was no report of injury related to strapping copiers;
• The worker's prior claim history with the WCB from 2005 in relation to his back was for muscular strains and there were no insidious or traumatic discogenic injuries specific to his job duties; and
• It had been confirmed that the worker had been either off work or participating in modified duties since 2013 and had not been required to participate in heavy work.

On October 10, 2014, the worker appealed the September 22 decision to Review Office. The worker argued that many years and long hours of heavy lifting at work caused or contributed to his back and neck condition.

Prior to considering the worker's appeal, Review Office wrote the worker's family physician to request a medical opinion related to the MRI findings, whether the worker's employment duties aggravated, enhanced or accelerated the aging process in his back and neck, and whether the worker's symptoms and findings were consistent with degenerative change.

On December 31, 2014, Review Office stated that after considering all the information from the worker, his employer and his doctor, it was unable to establish that the worker had an accident as defined in the legislation. Review Office noted that osteoarthritis is a degenerative disease of the joints and is not caused by heavy repetitious work.

The worker subsequently appealed Review Office's December 31, 2014 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's 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.

Subsection 4(1) of the Act states:

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)

"Accident" is defined in subsection 1(1) of the Act as follows:

"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;

Worker's Position

The worker was self-represented. The worker provided a written submission in advance of the hearing, in which he described certain contracts he had worked on and duties he performed. He also included a further medical report from his treating physician, dated August 1, 2016.

The worker made a presentation at the hearing, and responded to questions from the panel relating to, among other things, the nature of his work duties, including his use of strapping to perform those duties.

The worker's position was that he always worked hard as a labourer in his job as a furniture mover, and suffered multiple injuries in his back which resulted in crushed discs and severe pain. The results of the MRI showed that he has severe spinal stenosis, with crushed vertebrae in his neck on the right side, crushing a nerve and causing him constant pain, which runs down his neck into his shoulder and arm. He also has narrowing of the spinal cord in his neck.

The worker said that his doctor has told him that his condition is the result of repetitive heavy lifting over the years in his job; that people do not get injuries as severe as this or suffer this much damage to their spinal cord at such a young age; and that he had worn his spine out from working. The worker noted that he had worked long hours, and had not had time for leisure or other things.

Employer's Position

The employer was represented by an advocate and the employer's Manager, Training & Development. The position of the employer was that the claim was not acceptable. The employer acknowledged that the worker has a significant back condition, but noted that the medical evidence shows that he has longstanding degeneration and spinal stenosis, which are non-compensable problems.

Referring to the worker's prior claims, the employer's advocate noted that the evidence shows that by 1998, the worker already had degenerative disc disease noted on diagnostic testing. The worker had a number of prior claims which involved muscular strains pertaining to the lower back and no traumatic discogenic injuries. In each case, the healthcare practitioners had diagnosed lumbar strain in the environment of pre-existing degenerative disc disease. The worker had never reported upper back or neck injuries to the employer or the WCB.

The advocate submitted that spinal stenosis is degenerative, and unrelated to the worker's work activities. The advocate referred to medical literature which she had provided in advance of the hearing, as indicating that spinal stenosis is part of the aging process.

It was noted that in the year prior to the filing of the claim, the worker was either on light duties or off work. The Manager described what those modified duties entailed, as well as the nature of the worker's regular duties prior to that.

The advocate noted that there was no question that the worker's regular duties involved heavy work, but stressed that the worker had never made a claim for cervical spine or neck injuries, and had never suggested that cross-strapping was an issue at the time he was doing it. The advocate submitted that all of the diagnostic testing, including the 2014 MRI, revealed only pre-existing degeneration, and that the MRI findings of severe multi-level stenosis were degenerative, congenital conditions, unrelated to any specific workplace injury or the general nature of the work duties over years.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find that the injuries to the worker's lower back and neck were causally related to the performance of his job duties. The panel is unable to make that finding.

The evidence does not disclose that there was any specific incident or acute trauma directly to the worker's back or neck which would have led to degeneration in his spine. The worker's previous work-related claims involved muscular or ligamentous injuries which all resolved and would not have affected the spine or contributed to degenerative disc disease. The worker never filed any previous claims with respect to the cervical spine.

The stated impression from the September 1, 2014 MRI of the worker's cervical and lumbosacral spine was:

Severe multilevel cervical spinal stenosis with marked spinal cord compression and abnormal spinal cord signal intensity.

The panel considered the report from the worker's treating physician dated August 1, 2016. The panel notes that the report confirms that the worker has severe cervical and lumber spine spinal stenosis, but does not relate that condition to the worker's job duties, or indicate how his condition can be related to these duties.

The panel notes that it is not aware of any medical literature or studies which support that heavy labour causes degenerative disc disease in any of the three areas of the spine.

In light of the foregoing, the panel finds that the worker's history of labour intensive moving of heavy furniture and office equipment or the culmination of his individual prior muscle injuries did not lead to nor were they causative of the degenerative condition of his spine noted on the September 1, 2014 MRI. The panel therefore finds that 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

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of November, 2016