The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits. A hearing was held on October 9, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits.

Decision

The worker is not entitled to benefits.

Background

On March 10, 2015, the worker reported to the WCB that he injured his lower back on February 25, 2015 in a workplace incident he described as:

I was driving and we have air seats on the wagon. I went into a hole and the seat bottomed out, so went to the bottom with a sudden stop and then back up, so bounced and think I blacked out even momentarily.

The WCB was provided a hospital report dated March 4, 2015 where the worker's entrance complaint was back pain and he was diagnosed with a lower back sprain. At a March 11, 2015 visit to the emergency room, the worker presented with reported ongoing back pain. The physician diagnosed the worker with a lumbar strain but no herniated disc was noted.

On March 19, 2015, the employer advised the WCB, by way of their Employer's Accident Report, that no incident had been reported to them by the worker. The WCB contacted the employer on March 19, 2015 and verified that the types of vehicle the worker was driving were newer vehicles, no report had been made regarding injuries sustained from that type of vehicle and that those vehicles were fitted with spring seats which should never have bottomed out.

The WCB advised the worker on March 19, 2015 that his claim was not acceptable. The WCB advised that they had reviewed his claim file and could not establish that an accident had occurred.

On November 30, 2015, the worker contacted the WCB and requested reconsideration of their earlier decision to deny his claim. He provided further information regarding his claim, including medical reports, on November 23, 2015 and April 9, 2016. The WCB gathered more information from the worker, his co-worker, the employer and the worker's treating healthcare providers and requested a WCB medical advisor review the worker's claim, which was done on July 4, 2016.

The WCB advised the worker on July 7, 2016 that his claim for a workplace incident occurring on February 25, 2015 was accepted however, the WCB would not be accepting his claim for any time loss or medical treatment after February 25, 2015. On October 22, 2016, the worker submitted further medical evidence in the form of an MRI and again requested the WCB reconsider its earlier decision. On November 3, 2016, the WCB advised the worker that the further medical evidence had been reviewed but there was no change to their July 7, 2016 decision.

On February 13, 2017, the worker's representative requested reconsideration of the WCB's decision to Review Office. The worker's representative submitted that, based on the medical evidence, the worker sustained an injury on February 25, 2015 that enhanced his pre-existing condition and rendered him unable to work and in need of medical attention. As such, the worker should be entitled to benefits.

Review Office advised the worker on March 1, 2017 that he was not entitled to benefits. Review Office acknowledged that the worker sustained an injury on February 25, 2015. However, as the worker delayed in seeking treatment until March 3, 2015, Review Office found that initial symptoms appeared to be more consistent with a minor back injury. Review Office could not account for the worsening of the worker's symptoms requiring time away from work and medical treatment several days later, in relation to the workplace accident. Review Office placed weight on the opinion of the WCB medical advisor that the workplace accident did not cause a structural change to the worker's pre-existing condition. Accordingly, Review Office determined there was no entitlement to benefits after February 25, 2015.

The worker's representative filed an appeal with the Appeal Commission on June 21, 2017. An oral hearing was arranged for April 12, 2018. A reconvened hearing was held on October 9, 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.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. The policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

WCB Policy 44.10.20.10, Recurring Effects of Injuries and Illness (Recurrences), notes that injuries can be the result of a new and separate accident or a recurrence of a previous injury.

The worker's hearing began on April 12, 2018, was adjourned and reconvened on October 9, 2018. The employer did not attend the reconvened hearing on October 9, 2018

Worker's Position

April 12, 2018 Hearing Date

The hearing commenced on April 12, 2018. The worker was represented by a worker advocate who made a presentation on behalf of the worker.

The worker's representative advised that the worker disagrees with the WCB's decision and that the worker is entitled to benefits.

A co-worker attended to give evidence in support of the worker's appeal. He confirmed that he met the worker at the construction site. He said that the worker typically worked shifts on a 21/7 cycle. He said that:

• he never saw any situation where the worker was unable to do his job duties.

• he worked with the worker for a short period as their shifts changed.

• the worker never complained that he was unable to work.

• he never noticed that the worker has an abnormal gait.

• he did not know about any restrictions or information indicating that the worker was unable to perform work duties.

The worker provided additional documents which were not on file. The documents were received and the hearing was adjourned to allow the employer an opportunity to review the new material. Arrangements were made for the hearing to reconvene on October 9, 2018.

October 9, 2018 Hearing Date

The worker's representative submitted that:

We’re seeking reversal of the WCB Review Office decision that the compensable injury of February 25, 2015 did not cause a structural change to the worker’s pre-existing condition and denied benefits. We disagree with this decision and assert that [worker] is entitled to benefits.

The explanation of a pre-existing condition, 44.10.20.10, where a worker’s loss of earning capacity is caused in part by a compensable accident, and in part by a non-compensable pre-existing condition, or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident.

And Recurrence…a recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

The worker's representative noted that in September 2014 the worker was interviewed, passed a driving test, and was hired by the employer. The worker worked for five months, minimum 10-hour shifts, 21 days on, seven days off, driving a rock truck.

The worker's representative noted the evidence that a coworker spoke with the adjudicator on May 6, 2016 and acknowledged that up until the workplace injury occurred the worker was operating the rock truck without any problems until he had, what was called a "bad bounce."

The worker's representative explained that on Wednesday, February 25th, the worker was operating a rock truck, when the loaded rock truck went over a boulder and dropped in a hole. This launched the worker up out of the driver’s seat, into the air, then landing him back on the driver’s seat, driving it all the way to the bottom and coming to an abrupt stop, then again, throwing him back up in the air and then landing in the seat.

The worker's representative said that the seatbelt wrenched the worker's abdominal muscles and groin, but kept him in the seat. The worker may have blacked out momentarily. He was very sore but finished his shift. The worker worked for the next three days with the aid of medication until he could no longer take the pain. The worker advised the employer on March 2, that he could not continue to work. The worker later attended a local hospital and was assessed by a duty nurse and physician. He was given pain medication, held overnight and released on March 5, with restrictions of no operating of heavy equipment with a potential return to work date of March 18, 2015. The worker then flew to Winnipeg to see his own physician.

The worker's representative explained that the worker ultimately underwent surgery for severe spinal stenosis, epidermal lipomatosis and cauda equine syndrome, resulting in a hospital stay of nine and one-half weeks. He noted that the surgeon reported that the worker's type of injury could and likely did cause injury and/or pain to the spine.

The worker's representative submitted that as the worker had been working full-time hours without significant difficulty prior to the accident and had been walking in the gym, at the camp, one to two miles per day:

"it is reasonable and logical to assume that the February 2015 incident did, in fact, cause re-aggravation of your back injury and subsequent required treatments for same. So by accepting the worker’s claim, WCB acknowledges that the described mechanism of injury has, in fact, caused [worker] some type of injury.

The worker's representative referred to a decision of the Supreme Court of Canada dealing with the "thin skull rule." He also referred to prior decisions of the Appeal Commission in support of the worker's position that the aggravation of a pre-existing condition is compensable.

The worker called a second witness, who was also employed as a truck driver at the worksite. In answer to questions, the second witness advised:

• he was a lifelong friend of the worker.

• he was a heavy duty mechanic and a heavy duty equipment operator.

• he was aware of the incident which occurred while the worker was operating a rock truck.

• the seat in the truck which the worker drove had an air-activated cylinder with the seat sitting on top of the cylinder which would be mounted to the floor.

• the seat takes up side to side movement as well as back and forth movement, and up and down movement.

• the seat uses a 12 volt air compressor which is not kept warm in cold weather, so ice crystals can form within the seat cylinder and

"…when you have an ice crystal it allows the seat mechanism to drop. It doesn’t take up the shock, but you get a real good wallop, one that hits the bottom of its travel"

• in response to information that the worker's truck used a nitrogen system for the driver's seat, the witness disagreed. He offered the view that ice crystals formed due to the cold temperature and that this could affect the operation of the seat.

• in his opinion, this caused the truck which the worker drove to bottom out.

• he was previously an adjudicator for another Workers Compensation Board and had dealt with claims such as the worker's claim and stated that some workers "ended up having major low back surgery."

The witness left the hearing after completing his evidence.

The worker's representative responded to the employer's written submission. He noted that the worker's supervisor asked him to work after he was injured because they were shorthanded, offered to compensate him for the full shift, not just for the hours worked. He also stated that the worker did not leave the camp due to his pre-existing condition, as alleged by the employer, but due to his workplace injury.

The worker's representative submitted that:

The claim suppression, the acknowledgment from WCB accepting the claim, along with EI accepting the medical benefits, supports that [worker] was not laid off as the employer continues to emphasize.

The worker was asked about an accident that occurred in January 2013 which his physician described as causing intractable back and bilateral leg pain. The worker could not recall an accident in 2013 but said that he had become a "workaholic" and had pain due to overworking.

The worker disagreed with information from his physician which indicated that his condition was deteriorating. He said that in 2014 he was able to put a new roof on his house, cut his lawn with a hand mower and build a fence. He advised that he cannot perform that type of physical labour now.

Regarding a physician's note which stated the worker was taking medication for pain control in October 2014, before the workplace accident, the worker stated that he was not using this medication until February 2015, after the accident. He stated:

I went from taking one or two [pills], and in a matter of a month, month and a half, taken six to 12 [pills] a day.

In reply to a question from the panel about whether any doctor told him that the imaging changes noted in 2016 were caused by an incident, the worker advised that his family physician and a surgeon advised him of this. He said that his surgeon advised him that:

When that seat dropped it started a ticking time bomb.

The worker said that the pain after the workplace accident was completely different. He said:

Before it was an ache. This was like somebody took a hot ice pick and jammed it in your back.

Regarding the impact of the accident, the worker stated:

It went from normal, what I call a normal life, to a life of sheer hell. You know, like I still have a lot of residual problems in my legs.

In closing the worker's representative submitted that:

Therefore, we are asking the Appeal Commission to overturn the Review Office decision that the compensable injury of February 25, 2015 did not cause a structural change to the worker’s pre-existing condition and denied benefits. [worker] was functioning daily at his workplace on his 21-day, 7-day rotation and attending the campsite gym for five months up until his workplace injury on February 25th, and [worker] be compensated for all associated wage loss, medical expenses, and any and all other benefits allowed under the regulations and policies, that [worker] be assessed…for PPI payment.

Employer's Position

The employer was represented by its Case Manager who attended the April 4, 2018 hearing. The employer did not attend the reconvened hearing on October 9, 2018 but provided a written submission for consideration at the reconvened hearing.

The employer submission indicated, in part, that:

• the employer investigation into the worker's claim found there was no incident reported while the worker was on site.

• the worker had been using a prescription medication prior to working on the work site.

• the pre-existing condition was the reason the worker asked to leave the worksite to see his physician.

• the worker's report states he went in a hole and the seat bottomed, causing him to go to the bottom with a sudden stop and then back up, so he bounced and blacked out. It would not be possible to be launched two feet in the air.

• the worker did not report the incident to the supervisor.

• the worker continued to work full job duties from February 25/15 to March 1/15.

• the worker's inspection sheets, completed by the worker, for this time frame do not note any issues with his seat.

• the MRI report dated March 19, 2016 notes new onset (3 months) lumbar pain. A comparison to the March 14, 2014 MRI indicates the impression of moderate to multi-level degenerative changes.

• a June 14, 2016 physician report from the worker's physician notes the worker has a history of low back pain and leg pain for many years with an exacerbation in 2015, and prior to the last year he had intermittent exacerbations.

• as per an October 14, 2014 report from a sports medicine physician, the worker was referred to a surgeon who noted that ongoing care was supportive. The employer agrees the worker is not to return to unrestricted work as a truck driver.

• a May 17, 2016 outpatient summary notes the worker was seen regarding low back pain which started to act up about 5 days ago.

• numerous medical reports on the file note advanced osteoarthritis in multiple joints, including knees, wrist, back that have all been progressing.

• a note from a physician dated May 11, 2015 indicates a discussion regarding the inability to attribute the current presentation to a disc bulge.

• the worker's letter to the WCB dated October 22, 2016 requests an impairment award as the initial back injury occurred many years ago while working for a different employer.

The employer's conclusion:

[Worker] had a history of numerous injuries and WCB claims prior to employment with [employer]. He has had multiple injuries dating back to 1989 including lower back issues, herniated disc, shoulder, neck, knee, ankle & wrist issues.

As per the medical report of April/14 the claimant was not fit for work at that time. If he did suffer an acute injury as per the medical dated May 11/15 [doctor] there is an inability to attribute his current presentation and diagnosis in relation to injury.

[Worker] remained off work and his symptoms worsened. There is no established relationship between the diagnosis and the accident. His diagnosis prior and post accident remains unchanged.

Analysis

The worker has an accepted claim for a workplace accident on February 25, 2015. The issue before the panel is whether or not the worker is entitled to benefits arising from the workplace accident of February 25, 2015. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical assistance due to the workplace accident. For the reasons that follow the panel was not able to make this finding.

At the hearing the worker acknowledged he had a pre-existing condition but claimed that the pre-existing condition did not impair his ability to work. Rather, he submitted that the workplace injury he sustained on February 25, 2015 enhanced his pre-existing condition. He described his condition over the summer of 2014 before he went to work for the employer. He noted that he was able to perform many activities around his yard and home. He noted that he was able to work for five months performing the duties of a truck driver on a 21/7 schedule without problems.

The panel finds that the medical evidence does not support his claim that his pre-existing condition was not a problem before the accident. In making this finding, the panel notes:

• a CT of the worker's lumbar spine performed on February 20, 2013 indicated significant degeneration including:

At L4-L5, there is a generalized disc bulge in addition to moderately severe bilateral facet degenerative hypertrophy. This results in mild bilateral neuroforaminal narrowing and moderate central canal stenosis with potential for irritation of the traversing nerve roots.

At L5-S1, there is marked loss of disc height and severe right and moderate left facet degenerative hypertrophy. A circumferential disc bulge is also present. This results in severe right neuroforaminal narrowing with the potential for irritation of the exiting right L5 nerve root. Mild to moderate narrowing of the left neuro foramen is noted. No significant central canal stenosis is seen.

• the opinion of the sports medicine physician dated October 2, 2013 which indicated that the worker has features of radiculopathic leg pain and significant degenerative change in his spine. The physician commented that "I agree that he is not fit for work as a truck driver at the present time."

• the October 14, 2014 report from the sports medicine physician indicating that he reviewed the worker regarding his low back pain and bilateral radicular leg pain due to spinal stenosis and degenerative change. He notes the worker's symptoms are slowly deteriorating with increased leg pain and bilateral foot numbness with exertion. He comments that "…I agree he is not fit to return to unrestricted work as a truck driver."

The panel also notes that the MRI conducted after the accident is not significantly different from the scan before the accident. The MRI of the worker's lumbar spine dated March 19, 2016 identified significant degeneration of the worker's back consistent with the 2013 CT. It provided in part:

L4-L5 demonstrates diffuse disc bulging with a centric right lateral/foraminal component. Facet degenerative change and thickening of the legamentum flavum is also present. The spinal canal is felt to be adequate. The right lateral recess is effaced, irritation of the transiting L5 nerve roots cannot be excluded.

L5-S1 demonstrates broad-based posterior disc bulging with a right lateral and foraminal component. Facet osteoarthritis present with thickening of the ligamentum flavum. There is bulky anteriorly projecting right facet osteophyte which contributes or neural foraminal narrowing…Extraforaminal disc encroachment on the right L5 nerve is suspected.

The panel also reviewed the August 11, 2016 Operative Report and notes that it does not identify a traumatic source for the injury.

The panel considered the mechanism of injury and finds that it is not responsible for the worker's significant degenerative condition. The panel also notes that the worker continued to work after the accident. The evidence does not demonstrate that the worker had acute symptoms. He did not seek immediate medical care. The panel finds the evidence does not substantiate the worker's position that he suffered a severe injury in the workplace accident.

Based upon our review of the file and consideration of all the evidence, the panel is not able to find the incident with the truck seat on February 25, 2015 caused a material change in the worker's medical condition.

The panel finds, on a balance of probabilities, that the worker is not entitled to benefits arising from the workplace accident of February 25, 2015.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of November, 2018