Decision #116/18 - Type: Workers Compensation

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his claims were not acceptable. A hearing was held on June 12, 2018 to consider the worker's appeals.

Issue

March 7, 2017 incident - Whether or not the claim is acceptable.

June 16, 2017 incident - Whether or not the claim is acceptable.

Decision

March 7, 2017 incident - The claim is acceptable.

June 16, 2017 incident - The claim is acceptable.

Background

March 7, 2017 Incident

The worker filed a Worker Incident Report with the WCB on March 17, 2017, reporting that he injured his back on March 7, 2017 in an incident he described as:

I was driving down [street] and the seat in the truck bottomed out. I felt pain in my back right away. I delivered the load of [material] and then I went back to the shop.

On March 9, 2017, the worker attended for an initial appointment with his doctor. He reported to the doctor that he had back and left leg pain as a result of "pounding" while driving on uneven pavement. The doctor diagnosed the worker with "back strain/sciatica" and recommended modified duties of "avoid lifting >5 kg" and "not to sit for one hour at a time." The modified duties were to be reassessed in two weeks.

In a discussion with the WCB on March 20, 2017, the employer's representative confirmed that an inspection was conducted on the air-ride seat in the truck driven by the worker and no issues were noted. On March 22, 2017, the worker's supervisor confirmed to the WCB that the worker had driven down the particular street mentioned in his claim previously as it was a common route between job sites. The worker's supervisor also confirmed that the worker had not reported injuries from driving that route previously.

At a follow-up appointment with his doctor on March 23, 2017, the worker was cleared to return to his regular job duties under the permanent restrictions noted from prior WCB claims.

The WCB advised the worker on April 27, 2017 that his claim was not acceptable. The WCB advised the worker that as an inspection of his truck confirmed no issues with the truck or the air ride seat and it had been confirmed that he had driven over that particular stretch of road in the past, his medical condition and diagnosis could not be directly attributed to the described workplace accident.

On August 3, 2017, the Worker Advisor Office requested reconsideration of the WCB's decision to Review Office. The worker's representative argued that the worker had reported the injury the same day and sought medical attention within two days of the accident. The worker's representative also noted that while the employer confirmed an inspection of the truck the worker drove, there was no report produced to substantiate the inspection.

Review Office upheld the WCB's decision that the claim was not acceptable in their decision of October 11, 2017. Review Office could not find evidence to support the workplace accident as described by the worker. Review Office notes that it would take sufficient force to cause an air-ride seat to "bottom out" as described by the worker. Review Office also noted that the speed limit on the stretch of the road where the workplace accident occurred was not sufficient to have caused the workplace accident. As such, Review Office found, on a balance of probabilities, there was no evidence to support that an accident occurred.

The worker's representative filed an application with the Appeal Commission on October 17, 2017.

June 16, 2017 Incident

The worker filed a Worker Incident Report with the WCB on June 26, 2017, reporting that he injured his lower back on June 16, 2017 in an incident he described as:

For the past 3 months I have been reporting that the conditions in the yard are terrible. There are big holes all over the place and the bouncing, imbalance, bumps and jolts have taken a toll on my back. I have been fighting through it to keep working.

On Friday, June 16th, I had to drive through 4 big potholes in order to reach the water supply area to fill my side tanks. I rolled over them VERY slowly, no foot on the gas at all. - I was bouncing in my seat.

I felt a severe pain shoot through my back, go straight down my butt, hip, kidney area and down my left leg.

I filled out a green card to report the injury.

Employer told me they need a doctor clearance note if I wanted to work the next day.

I went to the doctor.

On June 16, 2017, the worker sought treatment from his doctor who diagnosed him with a back strain. The doctor provided the worker with a note to be off work on June 16, 2017. It was also noted that the worker attempted to return to work but that he should be off June 23, 2017 to July 10, 2017. At a follow-up appointment on July 7, 2017, the doctor recommended that as the worker was "unable to sit or walk without pain," he should remain off work and be reassessed in one to two weeks.

At his initial appointment with a physiotherapist on July 12, 2017, the worker was diagnosed with "Acute lumbar disc sprain with Acute strain of muscle". The physiotherapist noted that the worker could return to work with modified duties requiring frequent rest.

On July 13, 2017, the worker was advised by the WCB that his claim was not acceptable. The WCB was unable to establish that a workplace accident had occurred. The WCB could not establish a connection between the diagnosis of a back strain provided by the worker's healthcare provider and the mechanism of the injury described by the worker as it occurred on June 16, 2017.

The Worker Advisor Office requested reconsideration of the WCB's decision to Review Office on November 2, 2017. The worker's representative noted that the worker's description of the workplace accident referred to the previous three months of "bouncing, imbalance, bumps and jolts" caused by driving over large holes on the employer's property and that the July 12, 2017 physiotherapist's report diagnosed the worker with an acute lumbar disc and muscle sprain. The employer's representative and the worker's representative submitted further information regarding the reconsideration request, which was shared among the parties.

On January 10, 2018, the worker was advised by Review Office that they determined his claim was not acceptable. Review Office acknowledged that the worker had a lengthy history of back difficulties and that prior to the June 16, 2017 workplace incident, he still had back pain. Review Office did not find that driving over potholes very slowly and bouncing in his seat, as described by the worker, would cause a "sufficient amount of force to have caused a strain." Review Office also did not find evidence that supported a structural change to the worker's pre-existing condition. Accordingly, Review Office provided the opinion that, on a balance of probabilities, an accident did not occur and the worker's claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on February 7, 2018.

On February 9, 2018, the Appeal Commission advised the parties that as both the worker's claims relate to issues of claim acceptance for low back injuries and, as the mechanisms of injury are similar in nature, both appeals will be addressed at the oral hearing arranged for June 12, 2018.

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.

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.

"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.

The WCB Board of Directors enacted WCB Policy 44.10.20.10, Pre-Existing Conditions. The policy provides:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker was represented by a worker advisor who provided oral and written submissions addressing the appeal of two claims. The worker answered questions from the panel.

March 7, 2017 Incident

The incident occurred when the worker was driving the employer's truck on a street and the driver's seat bottomed out.

The worker's representative noted the worker reported a specific workplace accident to his supervisor on March 7, the day that it happened, and left work early as a result. He sought medical attention two days later and provided the same accident description and date to the attending physician.

The worker's representative submitted that the worker was injured from this chance event as noted by the attending physician who observed that the worker presented with reduced lower back range of motion and tenderness.

The worker's representative noted that:

New restrictions were identified and withdrawn two weeks later. Physiotherapy was recommended and diagnosis of a strain and sciatica were identified.

The worker's representative also noted that the worker admitted being off work for his back from November 2015 to March 2016, and that there is no mention of the worker missing work in 2017 prior to his accident. He submitted that:

This evidence shows the worker worked consistently with the same restrictions and in the same role up until the March 7th accident.

The worker's representative said that the March 9 report identifies tender lumbar muscles, whereas a June 2016 report does not.

Regarding the employer's position that it tested the seat, the worker's representative said that a properly functioning seat, three days after the incident, does not disprove it malfunctioned on March 7 and that confirming that the seat fills with air while the vehicle is parked does not replicate the circumstances of the worker's accident.

June 16, 2017 Incident

This incident occurred while the worker drove a truck through the employer's parking lot.

The worker's representative submitted that details of the June 2017 accident are much the same as the March 2017 claim. He noted:

• a consistent accident description and injury date, 

• timely reporting to the employer 

• attendance for medical attention and post-accident date diagnosis

The worker's representative also noted that:

• the physiotherapist's notes demonstrate he saw the worker on five occasions prior to June 16, which gave the physiotherapist a foundation to opine that the worker's medical presentation changed after the June 16, 2017 accident.

• the attending physician's chart notes from May to June 2017 also demonstrate some changes such as sacroiliac joint tenderness on May 23, 2017 and paravertebral tenderness is noted June 21, 2017.

The worker's representative submitted that the evidence supports, on a balance of probabilities, that the worker suffered a workplace accident causing him injuries.

In reply to a question from the panel about the pot holes on the employer's parking lot, the worker commented:

All of them. They kind of go right across where you drive, like I say, it's what happens on the gravel, especially with the tandem tandem (sic) trucks, those are the ones that got the two sets of front axels (sic), the two steering axels (sic) and then a set on the back. And with those ones, when you're driving, because of the distance between the front axels (sic), say you get one little hole in the yard, well, if it's in the spot where everybody drives, as you're going through, the tire will hit that first hole and as it comes up and the second tire hits it, it kind of puts extra pressure on the first tire again. So as you go along, it kind of starts to build a second pothole just off from where the first one is.

And as that keeps going, you'll create sort of a series of them. They will all roughly be about the same distance apart. And just like I say, it just kind of sets up as you're going. You hit the first one, you kind of bounce a little bit, then you hit the second one, you kind of bounce more. You hit the third one and you bounce even higher. If you've ever experienced washboard on a gravel road type thing where your back end will start sliding out in your vehicle, it's because it's bouncing a little bit higher each time.

Employer's Position

The employer was represented by an employer advocate and its Terminal Manager who was the worker's supervisor at the time of the incident. The employer representative advised that the employer's position is that neither of the two claims are acceptable. She acknowledged that he has a chronic back condition, and that he has periods where his back condition flares up.

She submitted that:

We don't believe that he sustained injury to his back on either of these two cases, or that he aggravated his chronic pre-existing extensive degenerative disc disease. She noted that the worker provided medical authorization to the employer to resume his regular, restricted duties and there was no material change in his condition before and after each incident. The fact that he remains off work to this day, is not due to either of the claimed incidents.

She said that the medical reports support the employer's position that that the worker's back complaints are chronic, long standing, present before the 2017 incidents and are unchanged. She noted that these are the same complaints, same restrictive range of motion, same restrictions, same prescriptions that he had in 2016. She compared an MRI from April 27, 2016 with the 2009 MRI and noted that he still has L4-5 central disc protrusion with annular tear.

The employer representative stated:

So the MRI clearly demonstrates severe and progressive degenerative disc disease present before 2017 which we believe accounts for [the worker's] symptoms to this day.

Referring to the worker's time off, she said there while there was no workplace injury, there was an extensive absence due to back pain, which is a pattern that has gone on over the years.

March 7, 2017 Incident

Regarding this incident, the employer's representative noted that the worker's report of injury indicated he was driving down a street when the seat in the truck bottomed out. She said that he made it sound like there was something wrong with the seat, noting that he had asked for a new seat for the truck, but it wasn’t provided.

She said that there was nothing wrong with the seat. She noted that the worker signed off on an inspection checklist for March 7, which makes no note of any defect with the seat or its functioning. She also noted that an inspection was done of the seat and the seat functioned as it should.

She noted the diagnosis was L5-S1 disc protrusion with note made that he's been seeing a specialist in the past for this chronic condition. She submitted that this was not indicative of any acute findings, but a continuation of long standing complaints.

The employer's representative submitted that the worker's reason for submitting the claim was to get the WCB to purchase a new seat for him, because the employer wouldn't.

June 16, 2017 Incident

Regarding this incident, the employer's representative denied that the potholes were one foot deep but acknowledged that:

the yard does get beaten up and does need to be graded, and the employer does do that from time to time, it is basically a construction site and they regularly grade the yard.

She noted that the worker was just traveling over the yard at four kilometers per hour, very slowly, no foot on the gas at all but signed a green card saying that this caused disc injury affecting his nerve root. She noted that he has a pre-existing condition.

She stated that:

The June 16, 2017 modified duty work form indicated, tender lumbar muscles, chronic back condition. There is no indication of an acute injury.

She noted that the worker told the adjudicator that his problems all relate back to his 2009 claim. She also said that after he completed a green card and went home, he later called to see if he could work overtime on Saturday in his regular duties at time and a half.

She noted that subsequent to a heated discussion with his supervisor who refused to authorize pay for the extra shift, the worker got a doctor's note to be off work completely. She said this was on June 20, and that this is why the worker was off work. She advised that in August 2017, he applied for short term disability benefits.

The employer representative advised the WCB adjudicator that his back was sore at the beginning of his shift on June 16, 2017. She submitted that:

…without doubt [worker's] diagnosed condition was not caused or changed by driving at idling speed in the parking lot. There is no connection between the diagnosis or reported mechanism of injury and his absence from work.

In closing, she submitted:

We have diagnostic testing and clinical evidence of this, we don't believe that his back condition or any disability was changed by driving over a pothole in March, or a dip in the road, or whatever it was. There was no material change in his condition following either minor claimed incident. Neither incident involved enough force to cause injury or to materially change his pre-existing problems. His complaints remain the same, diagnosis, everything.

Analysis

The worker is appealing two issues arising from the WCB's denial of claims for injury from two separate incidents in 2017.

The panel acknowledges that the worker has a pre-existing condition, and has medical issues arising from an earlier claim.

March 7, 2017 Incident

The worker filed a claim indicating that he injured his back when the seat bottomed out going over a heave in the road. For the worker's appeal of this claim to be approved, the panel must find that the worker sustained an injury as a result of a workplace accident. The panel was able to make this decision.

The panel finds that the worker suffered a minor aggravation of a pre-existing condition. The panel notes that the worker immediately reported the injury at work that day and was unable to complete his shift. As well, while the worker did have a pre-existing back condition, he had been able to work without medical treatment in the preceding months, suggesting that the injury arose out of his employment that day. The panel accepts that the worker's seat had bottomed out that day, and that this mechanism of injury is consistent with the aggravation of a pre-existing low back condition. The panel also accepts the evidence of the worker and the terminal manager that even functioning air ride seats can bottom out. The panel accepts that he was injured in the accident as evidenced by the new findings, but also finds that the injury was minor, given that on March 24, 2017, his treating physician completed a Physician's Modified Work Information Form indicating that the worker could perform medium duties and continue with driving. The note indicates restrictions of "No chute work" and "No wheel barrel work" and that the worker can perform his "regular restricted duties at work place." This suggests a resolution of the aggravation by March 24, 2017.

The worker's appeal of this issue is approved.

June 16, 2017 Incident

The worker filed a claim indicating that he injured his back while driving a work truck across the employer's premises. For the worker's appeal of this claim to be approved, the panel must find that the worker sustained an injury as a result of this accident. The panel was able to make this finding.

The panel finds that the worker's claim is accepted for a minor aggravation of his pre-existing back condition. In this regard, the panel notes that the worker immediately reported the incident and injury and sought medical treatment soon after.

The panel finds that the mechanism of injury is consistent with an aggravation of the worker's pre-existing condition. As to the extent of the injury, the panel notes that on June 16, 2017, the worker's physician completed the Physician's Modified Work Information Form which indicated that the worker was able to perform restricted duties which included no wheel barrel work and no chute work. The panel notes this indicates that the worker was back to his pre-accident base line. This is consistent with other evidence that indicates that the worker wanted to return to work on June 17.

The panel asked the worker if he would have been able to work on June 17, if he had been called in. The worker stated:

I anticipated being able to go in and at least get two or three, four hours. I didn't expect to make the day of it, not for sure, but I did expect to be able to go in…

The worker's appeal of this issue is approved.

The panel has considered the Pre-existing Conditions Policy and finds that the worker's on-going disability is not caused by or related to the workplace accidents dealt with this in appeal.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of August, 2018

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