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 December 13, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 7, 2015, the worker filed a claim with the WCB for an injury to his whole back that he related to the nature of his job duties as a truck driver which involved long hours of driving, 12 hours per day. The worker reported that he first noticed symptoms on October 21, 2015, which was his last day at work. His symptoms gradually got worse to the point that he could not do anything. The worker reported that he had been at his current job since 1994 and that "Most of my life I've had disc issues, disc has been out of place."

The Employer's Accident Report dated December 7, 2015 stated that no specific incident was reported by the worker and the problem with his back developed gradually.

On December 11 and 21, 2015, a WCB adjudicator contacted the worker and the employer, respectively, to obtain additional information related to the worker's job duties, work history, symptom onset, prior medical history and reporting of any back difficulties.

On December 18, 2015, a WCB medical advisor reviewed the file information and stated that the worker's back pain was documented as being chronic. There was no mention of any acute trauma or change in work duties. The only finding on examination was tenderness. The worker had a CT scan showing multilevel spurring, disc bulging, osteophytosis, etc. This combination of findings was usually representative of degeneration. The medical advisor opined that the clinical finding of tenderness was not necessarily supportive of any specific diagnosis, but the combination of chronic pain and the CT findings supported that the diagnosis was degeneration of the lumbar spine. The medical advisor opined that the relationship of degeneration to specific duties or an occupation could not be determined.

In a decision dated December 21, 2015, the worker was advised that his claim for compensation was not acceptable based on the WCB's opinion that his symptoms were the result of degenerative changes and not an injury arising out of and in the course of his employment.

On February 22, 2016, a worker advisor requested reconsideration of the decision dated December 21, 2015. The worker advisor stated, in part, that:

…[the worker] has a history of intermittent back pain. [The worker] experienced the onset of a different type of back pain when he was assigned a short wheel base truck that was rough to drive. [The doctor] diagnosed [the worker] with "acute on chronic back pain." [The doctor] stated in his report that [the worker's] back symptoms were a different type of back pain that did not resolve with rest. [The worker] attributes the onset of his back symptoms in July 2015 to bouncing in a short wheel base truck down bad roads for long hours.

It is our opinion driving a different truck starting May 2015 was the thing that was done and the doing of which during the course of employment that result (sic) in the onset of a different type of acute back pain July 2015. The change in truck is a change in duty and medical reports identified "acute" and "different type" of back pain. Therefore evidence shows an injury occurred in accordance with the Act and the claim should be accepted.

On March 23, 2016, Review Office determined that the claim was not acceptable. Review Office acknowledged that truck drivers can be exposed to driving on poor road conditions, but also took into account that the truck had an air ride suspension/seat. Review Office did not find it probable that the worker sustained an injury in relation to his employment. Review Office was of the view that the mechanism of driving a truck with shock absorbing seats would not have led to the significant impairment involving the worker's ability to work, and a causal relationship between the worker's back symptoms and the described mechanism of injury had therefore not been established.

Review Office also reviewed the medical information on file, and noted that the worker had longstanding pre-existing degenerative changes in his back. Review Office found that there was no causal relationship between the worker's back difficulties/development of degenerative changes in his back and his work duties.

On August 9, 2016, the worker requested that Review Office review the report of an MRI of the worker's lumbar spine performed July 10, 2016 and reconsider its March 23, 2016 decision. On October 12, 2016, Review Office advised that the new information had been reviewed and there was no change to its decision that the claim was not acceptable. On October 18, 2016, the worker appealed Review Office's March 23, 2016 decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information. On December 19, 2016, the worker was provided with the information that was obtained by the panel and was asked to provide comment. On January 11, 2017, the panel met further to discuss the case and render its final decision.

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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

"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 and participated in the hearing by teleconference.  The worker's position was that he sustained an injury to his lower back while driving a truck with a short wheelbase in the course of his employment.

At the hearing, the worker acknowledged that he had had back problems for some time, but said that this time it was different.  Every other time when his back "went out", it got better.  This time, the pain did not go away, and he still had it. 

In response to questions from the panel, the worker described experiencing problems in both the upper part of his back and his lower back.  The worker said he had "very little [pain] right in the lower part", it was "more halfway up my back, and in between my shoulders."  With respect to his lower back, the worker said that:

…right in the centre of my back and my lower back, right, just where you bend down, I'll have pain there, but it will go away…if I do something, I'll get a very sharp pain there, but it goes away…it's just a sharp pain, but as fast as it comes, as fast as it'll go away, but not higher up.

With respect to the pain higher up, the worker said it hurt on both the right and left sides of his back, right under his shoulder blades, and in the centre of his back level with the shoulder blades, and went down in his left arm, but did not affect his right arm.  He said the only thing that had changed since he stopped working was that he used to have to sit on a hard chair for up to four hours waiting for the pain to be gone, but now he could lie down and it would go away slowly, within half an hour.

The worker said that in his mind, "the main issue…is that pain in the mid-back… and between my shoulders and down in my left arm." 

Employer's Position

The employer did not participate in the appeal.

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 worker sustained an injury by accident arising out of and in the course of his employment.  For the reasons that follow, the panel is not able to make that finding.

Medical information on file, including chart notes provided by the treating physician following the hearing, document that the worker had chronic back pain.  There was no indication of any acute trauma, and the only change in the worker's work duties that was identified was a change in the truck which the worker was driving from May 2015 onwards.

The panel carefully questioned the worker with respect to his work duties, the road surfaces, and the differences between the trucks he had driven prior to 2015 and the one he was assigned that year.  The worker's evidence was that he worked in the summer only.  In previous years, he had driven a newer truck with a longer wheelbase, which he said was a much better riding truck.  When he started back to work in May 2015, however, he was given an older truck, with a shorter wheelbase, which he then drove through to October 2015. 

The worker acknowledged that the truck had air suspension seats, and added that this was a normal thing.  The truck also had a lumbar support, which the worker said he always used and it would enclose his back.  The worker stated that the truck was in very good shape, but was approximately 10 years older than the one he had been driving.  He said that trucks had improved so much over 10 years, and the newer the truck, the better the ride. 

The worker said that he worked 12 hours a day, and would drive for about 10 of those hours.  Every day was different.  Sometimes he would be driving on good pavement, but other times he would be on rougher secondary roads with pavement that was very choppy and had potholes, or on gravel or sand.  He stated that the shorter wheelbase resulted in a rougher and very choppy ride, and the sudden jarring really bothered his back, even when he was on paved secondary highways.

Having carefully considered all of the evidence before us, the panel is unable to accept that driving a different truck with a shorter wheelbase in 2015, as described, was causally related to the worker's upper or lower back difficulties.  The panel recognizes that the worker's back likely bothered him while he was driving, but is unable to find that the activity of driving that truck in 2015 was the cause of the worker's back difficulties or symptoms.

The panel places significant weight on the December 18, 2015 opinion of the WCB medical advisor, who found that the probable diagnosis, supported by the combination of chronic pain and CT findings, was degeneration of the lumbar spine, and opined that the relationship of degeneration to specific duties or an occupation could not be determined.  The panel notes the analysis to be thoughtful and thorough and we therefore accept her opinion.

The panel considered the report of the July 10, 2016 MRI of the lumbar spine, which revealed "L5 spondylolysis with grade 1 L5-S1 spondylolisthesis.  Moderate foraminal narrowing on the left at L5-S1 with possible compromise of the exiting L5 nerve root.  Mild degenerative disc bulging at L3-L4 and L4-L5."  It is the panel's understanding that the MRI findings are consistent with the findings on the November 24, 2015 CT scan which were reviewed by the WCB medical advisor in December 18, 2015 and said to be degenerative in nature.

The panel notes that information on file indicates that the worker complained that the pain started in his lower back and radiated up to his shoulders and neck.  It is the panel's understanding that pain in the lumbar spine would radiate downwards, not upwards into the mid and upper back areas.  The panel is unable to connect any pain which the worker experienced in his shoulder area and left arm to his lower back condition.

At the hearing, the worker indicated that he had also had an MRI of his upper back.  Following the hearing, the panel requested and was provided with a March 16, 2016 MRI report of the worker's cervical spine, which showed findings of multilevel spondylosis, osteophytes, degenerative disc space narrowing, and facet arthropathy.  In the panel's view, these findings are again generally representative of degeneration, and do not support a connection between the worker's difficulties and his job activities.

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker's back difficulties or symptoms were causally related to his job duties or activities as a truck driver.  The panel notes that nothing in the medical evidence shows an acute process or information that would refute the WCB medical advisor's opinion.

The panel therefore finds that the worker did not sustain an injury by accident arising out of or in the course of his employment, and his claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 24th day of February, 2017