Decision #30/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on January 14, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker's Accident Report on December 9, 2003 indicating that he hurt his lower back at work on November 21, 2003. The worker did not identify a specific incident but described job duties of pressure washing and lifting large steel tanks weighing 100 to 150 kgs approximately 100 to 150 times per day. He reported that he finished his shift on November 21, 2003 and felt fine. He was okay over the weekend, but when he got up to go to work on Monday morning, November 24, 2003, he felt "a sudden stabbing like pain" in his lower back.
The worker attended his family physician on November 24, 2003 and reported "sudden severe back pain." His physician queried an acute L4-5 disc prolapse and referred the worker for a lumbar spine x-ray. The stated impression from the November 25, 2003 x-ray was "Lumbar spondylosis." At a follow-up appointment on December 1, 2003, the worker's family physician diagnosed him with an "acute prolapse lumbar disc" and ordered an urgent CT scan, which was performed December 12, 2003.
The impression noted on the December 12, 2003 CT scan of the worker's lumbar spine was "Central L5/S1 disc protrusion of doubtful significance. Slight facet degenerative changes."
In a memorandum of a telephone conversation with the worker on December 19, 2003, a WCB adjudicator noted that the worker advised that his injury was not work-related and that it happened when he got out of bed at home. By letter dated December 19, 2003, Compensation Services confirmed the worker's advice that he was not injured at work and advised that no further action would be taken on his claim.
On May 12, 2017, the worker contacted the WCB seeking information on his claim. The worker advised that he had never recovered from his injury and requested that his claim be reviewed. In a discussion with a WCB adjudicator on May 15, 2017, the worker attributed his back condition to repetitive heavy lifting while cleaning heavy stainless steel bins. He submitted that the factors which contributed to his condition included that he frequently had to work alone and was relatively small in stature. The worker advised that he had undergone fusion surgery on his back in 2004 and had not worked since then. He said he had not received a letter in 2003 advising that no further action would be taken on his claim.
Further medical information was obtained from the worker's healthcare providers. On November 14, 2017, Compensation Services advised the worker that his claim was not acceptable. Compensation Services noted that there was no specific incident or change in the worker's job duties to account for the onset of his back difficulties in November 2003. While the November 24, 2003 report from the worker's family physician attributed the onset of his symptoms to his job duties, there was no medical evidence to support this finding.
Compensation Services noted the worker had reported that he was unsure whether his condition was work-related or not until a CT scan was done. The CT scan on December 12, 2003 offered no evidence of an injury but showed disc protrusion at L5/S1 of "doubtful significance" as well as slight facet degenerative changes. Compensation Services further noted that the November 25, 2003 x-ray reported that the worker had lumbar spondylosis, a common phenomenon associated with age-related wear and tear, and this finding offered no evidence the worker sustained an injury.
On April 16, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker stated that he did not say his injury was not work-related. He submitted that spondylosis is also caused by repetitive heavy lifting, and attributed his diagnosis of spondylosis to repetitive heavy lifting and to his having been left alone to do a job which required two men at all times.
On June 18, 2018, the employer provided a written submission in support of Compensation Services' decision, which was shared with the worker. In a subsequent "reminder" note, the worker indicated that prior to working for the employer, he spent two years working at a desk, with no heavy lifting, and there was nothing wrong with his back until he went to work for the employer, "throwing bins."
On July 5, 2018, Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the worker's statement that his back did not bother him on the weekend but he had back pain when he got up on November 24, 2003, as establishing that the worker had no symptoms related to a workplace injury until November 24, 2003. Review Office also found that as the worker reported that his back issue arose at home, a causal connection could not be made between his injury and subsequent difficulties and his job duties.
On July 18, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
"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,
(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 worker was self-represented. The worker's position was that his claim is acceptable.
The worker stated that he did not hurt his back getting out of bed. He said the WCB had asked him to tell them what had happened from the beginning, so he started by describing what happened that morning when he was getting out of bed. The WCB took this to mean that was when he got hurt, but that was not what he meant.
The worker submitted that he had also never said his injury was "not work-related". He said his back was bothering him before November 21, 2003. He noted that he had been going to the chiropractor at the workplace every Thursday for his back, and the employer had previously provided him with a back brace to use at work.
The worker said his main complaint was that he was often left alone to do all the work. Although union rules required that there be two men in his area at all times because of the heavy lifting, he was left on his own on numerous occasions, with promises that he would have some help. As an example, he referred to a period where he worked by himself for two weeks while his partner was on holidays, and still had to get all the bins cleaned each night.
The worker stated that his surgeon had said his injury was the direct result of repetitive heavy lifting. His surgeon showed him the "disc hanging out of my vertebrae" and said that was what was causing his pain and that it was due to repetitive heavy lifting.
The worker said the WCB had told him he would be better off going on disability, so eventually he did so. He submitted that was why the WCB took no notes from him and why there is so little information on file.
The employer was represented by its Benefit Coordinator, who provided a written submission in lieu of attending the hearing.
The employer's representative advised that they agreed with the decision that the worker's claim is not acceptable.
The representative stated that the worker reported to the employer's first aid station before the start of his shift on Monday, November 24, 2003 that he experienced back pain when he woke up that morning. The representative noted that the worker said he felt no back pain after his shift on Friday, November 21 or over the weekend of November 22 to 23, 2003.
The representative submitted that the worker's reference to a job task of "lifting tubs" was not one of the employer's practices. He stated that employees used a hand pallet or jitney to lift all tubs in the area in question, and that in 2003, they would push/lean tubs that weighed between 60 and 85 kgs to drain the water out. He noted that two employees were placed in this area to complete these tasks.
The representative noted that the worker had advised the employer that his claim was not work-related and applied for short term disability under their benefit plan. As a result, the employer had not been required to file an employer's report with the WCB and the claim had been cancelled. The employer's representative noted they received a copy of the WCB's December 19, 2003 letter confirming that the worker had advised that his injury was not work-related and he was not pursuing a claim with the WCB.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is unable to make that finding.
The panel finds that initial reports of the worker's injury do not support that his back injury or condition was work-related. In arriving at this finding, the panel places weight on the following:
• The worker did not identify a specific workplace incident as having caused his injury;
• In the November 25, 2003 x-ray report, the clinical history is noted as: "increased low back pain; no known injury; ?cause";
• In his Worker Accident Report filed December 9, 2003, the worker stated that he did not know if his injury was work related or not. While he reported his date of accident as being November 21, 2003, he said that he felt fine at the end of his shift that day and over the weekend and it was not until Monday morning, November 24, while getting out of bed, that he felt back pain;
• The employer's benefits coordinator advised in an email dated December 11, 2003, that the worker had told her on December 10 that he had submitted papers for short term disability, that he did not know of any accident that caused his injury and that the pain started when he was at home. The worker had also said it was not work related when he brought in his medical form;
• In a memorandum of a telephone conversation with the worker on December 19, 2003, the adjudicator noted the worker advised that his injury was not work related, that it happened when he got out of bed at home and he was not claiming WCB.
The panel finds that there is a lack of medical or clinical evidence to support that the worker's low back injury or condition was work-related. Neither the November 25, 2003 x-ray nor the December 12, 2003 CT scan report indicated that the worker suffered an injury. Contemporary medical reports as well as further medical information subsequently obtained by the WCB and on file refer to findings and diagnoses of spondylosis, degenerative disc disease and osteoarthritis, which are consistent with degenerative conditions and changes.
In response to questions from the panel, the worker described his job activities in detail with reference to a sketch which he had previously provided and was on file. Based on our review of the evidence on file and at the hearing, the panel accepts that the duties which the worker performed were physically demanding, but is unable to find that they were as onerous as the worker said they were.
The panel notes that the worker's evidence at the hearing was that his back problems continued to get worse after 2003. Even though he was off work and no longer doing any heavy lifting, his back did not improve. He said that the fusion surgery in late 2004 or 2005 was not successful, and with one exception, the condition of his back did not improve following that surgery.
The worker stated at the hearing that he experienced pain and difficulties with his back starting the first day he worked for the employer, and his back slowly degenerated from then. The panel notes that this is not what was described in the first report from his family physician, on November 24, 2003, which refers to the worker's complaint of "sudden severe back pain" and notes that the worker "had back pain before but 'not like this'". It is also not the basis on which the claim was filed, being that of an acute or traumatic injury.
The panel notes that while the worker submitted that his research indicated that in some cases heavy lifting can result in spondylosis being "speeded up", there is an absence of medical information to support this assertion or that this applied in the worker's case or resulted in an injury to the worker on November 21, 2003.
The panel also notes the worker's submission that he did not receive the December 19, 2003 letter from the WCB advising him that no further action would be taken on his claim. However, the evidence indicates that the worker himself did not follow up with the WCB with respect to his claim for more than 13 years after the date of that letter.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of March, 2019