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 is not acceptable. A hearing was held on May 30, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker reported to the WCB on December 19, 2017 that he injured his lower back at work, with an incident date of September 5, 2017. The worker described the cause of his injury as:

We unplug sewers. Lots of lifting and carrying equipment in and out of jobsites. Lots of stairs. The heaviest piece of equipment weights (sic) around 45 pounds. I can do up to 10 jobs a day. 

I use an electric machine but I push the cable down the line and back and forth as the machine is running. 

When I am unplugging a sink I using (sic) a hand held machine. 

I am bent over the majority of the time I am working.

The employer provided an Employer Injury Report on December 27, 2017. The employer's report also noted the date of injury as September 5, 2017 and provided the description of:

[Worker] has been saying that his back has been a little sore since the beginning of October. I recommended that he sees (sic) a Doctor. He went to see a physiotherapist Oct. 13 and a chiropractor in November and then he saw his Doctor December 4th.

On December 4, 2017, the worker reported to his family physician that he had increasing central low back pain for months, with radiating pain to his left foot and numbness in the left toes, especially after standing. The physician diagnosed the worker with a lower back strain. An x-ray of the worker's lumbosacral spine, taken December 4, 2017, indicated:

There is intervertebral disc space narrowing at the L5-S1 level. There are bilateral pars articularis defects the L5 vertebrae in keeping with spondylolysis, there is associated minor anterior displacement of the vertebral body L5 relative to S1. For the remainder, there is no other acute or chronic bone, joint, disc or soft tissue abnormality.

On December 19, 2017, the worker was seen by a sports medicine physician. The worker reported that he first noted left foot numbness and tingling, which he initially attributed to another medical condition. He developed low back pain a couple of weeks later, worse on the left side. The pain radiated down his left leg and progressively worsened. The sports medicine physician diagnosed the worker with grade 1-2 anterolisthesis L5 on S1, referred the worker for physiotherapy and an MRI, and recommended the worker stay off work.

At an initial physiotherapy appointment on December 21, 2017, the worker reported chronic lower back pain, now with left radiculopathy. He further described left leg pain and numbness/tingling into his left foot. The physiotherapist diagnosed the worker with spondylitic lower back pain with L5 instability and L5 root irritation and queried whether there was a disc component.

In a conversation with the WCB adjudicator on December 27, 2017, the worker advised that he had been doing the same job duties for years and there had been no changes in his duties. On January 10, 2018, the adjudicator advised the worker that the current diagnosis of anterolisthesis, provided by x-ray, was a degenerative condition and was not acceptable as a workplace injury, but that they would reserve their decision pending receipt of further medical information.

Additional medical information was received, and on January 24, 2018, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services noted that they were unable to establish the worker suffered a specific accident or injury at work, or any change in his duties to account for his lower back pain. Compensation Services noted that two diagnoses were provided to account for the worker's symptoms: spondylosis, which was a degenerative condition; and anterolisthesis, which was "caused either by blunt force, aging, underlying conditions such as arthritis, and occasionally linked to congenital spinal defects." Compensation Services stated that neither of these diagnoses would account for an injury arising out of and in the course of the worker's employment.

On March 21, 2018, the worker requested that Review Office reconsider Compensation Services' decision and submitted the report of an MRI of his lumbosacral spine performed February 15, 2018. As the worker's request included new medical information, Review Office returned the file to the WCB adjudicator for further review.

On April 16, 2018, the worker's file and February 15, 2018 MRI were reviewed by a WCB medical advisor, who opined, in part:

The February 16, 2018 lumbosacral spine MRI documents the following:

There is grade 1 anteriolisthesis of L5 on S1. This is associated with degenerative changes in the surrounding supportive structures of the vertebral bodies. This will allow the vertebral body to shift anteriorly upon the vertebral body below. This developed over a prolonged period of time and there is no workplace tasks or activities hat (sic) would result in this radiographic finding.

Degenerative changes with narrowing of the L4-L5 level with facet arthropathy. As an individual gets older the disc material dries out, this results in the disc collapsing onto itself which narrows the joint space where the disc material would be contained in. There is no workplace activities that results in or contribute to the development of joint space narrowing, rather, this is the natural progressing as the disc ages.

A posterior and left lateral disc protrusion is seen at the L5-S1 level. Disc material contacts the eft (sic) L5 nerve root. This is the same anatomical level where the L5 vertebral body is shifted forward ion (sic) the S1 vertebral body. The disc protrusion that is seen is likely a result of the degenerative changes documented at this level rather than a result of workplace activities. Radiculopathy is commonly associated in the fast (sic) majority of individual (sic) within the environment of progressive degeneration of the spine.

On April 19, 2018, Compensation Services advised the worker that after further review, their decision remained unchanged and the claim was not acceptable. On April 26, 2018, the worker requested that Review Office reconsider Compensation Services' decision. It was submitted that the treating sports medicine physician believed the worker's injury was caused by his job duties and was not degenerative.

On May 22, 2018, Review Office determined that the worker's claim was not acceptable. Review Office accepted the WCB medical advisor's April 16, 2018 opinion and found that the medical evidence supported the worker was suffering with degenerative changes in his lower back. Review Office noted that the worker did not report a specific accident at work and they could not find evidence of his having suffered an injury in the workplace. Review Office further stated that they were unable to determine the worker suffered an aggravation or enhancement of the pre-existing degenerative changes in his lower back as a result of performing his general work duties.

On December 12, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

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.

"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.

"Occupational disease" is defined in subsection 1(1) as:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; 

but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation, and states, in part, that:

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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was assisted by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation, a copy of which was also provided to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that the evidence shows his job tasks and duties caused or contributed to the injury to his spine and current difficulties, and his claim should be accepted.

The worker's representative noted that medical evidence showed the worker had both scoliosis and anterolisthesis of the L5 on S1. The representative submitted that the presence of pre-existing conditions, such as these, does not shield workers from suffering acute injuries. Rather, such conditions make them more susceptible to new injuries, and/or aggravations or enhancements. The representative referred to medical literature provided in advance of the hearing, as indicating that degeneration makes discs more prone to injury with even a minor strain or twist, and lifting heavy objects, especially while turning or twisting, can cause a disc protrusion.

In response to questions from his representative, the worker described his job duties and tasks, the onset of his symptoms and the treatment he received. The worker's representative observed that the worker spent the majority of his workday lifting heavy equipment and manipulating heavy cables while remaining in forward flexed position. Referring to further medical literature, the representative submitted that the tasks which the worker performed, involving bending, lifting, pulling, pushing and twisting, have been identified as risk factors for disc protrusions.

It was noted that in spite of his pre-existing conditions, the worker was able to perform his job duties without assistance for over two decades. He began to experience symptoms, however, when his workload increased for busy days. The symptoms increased after more physically demanding days at work and became progressively worse.

The worker's representative quoted from a December 6, 2018 medical opinion from the treating sports medicine physician, provided in advance of the hearing, in which the physician stated:

The diagnosis of L5S1 disc protrusion and left L5 nerve contact (and now possible R R5) (sic) root irritation could be related to his work activity and realistically on a balance of probability does in fact relate to his work. There is some evidence to suggest this problem has been present for some time, as arthritic changes do not suddenly occur. However, I disagree this is solely a degenerative condition (as those changes noted are quite mild on MRI scan) as it is very likely the work is the only reason he has this problem in the first instance. You have described a job which requires a great deal of time in a forward flexed posture manipulating heavy cables and bent over and carrying machinery. In my opinion his work would most certainly aggravate and even enhance a preexisting condition such as is described. In all likelihood his work was the reason it developed over time in the first instance. It made it worse if it was pre-existing. That is to say, if it was not the cause which initiated the condition and was slowly progressing, then it most certainly enhanced it to the point it is today.

The representative submitted that the treating sports medicine physician had opined that the mild degeneration would not produce the worker's symptoms without the added input of the job duties. She submitted that the physician believes the tasks caused the disc protrusion/nerve root contact. Alternatively, if the worker's duties were not the sole cause of the injury, they caused an enhancement of the pre-existing condition.

In conclusion, it was submitted that the evidence shows a causal connection between the worker's job tasks and the injury to his spine, which meets the requirements for an accident under subsection 1(1) of the Act and the claim should be accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

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, for the reasons that follow.

The panel notes that the worker's claim is not based on any specific event or accident that occurred at work. The worker indicated at the hearing that the date of incident of September 5, 2017 was not a hard date and was inserted on the Worker Incident Report because a specific date had to be filled in on the form. He said September 5 would have been around the time his back was getting sore. The panel is satisfied the evidence does not support that an acute injury occurred in this case.

The claim, as it has been advanced, is for a cumulative injury with a continued and long-term onset. In response to questioning from the panel, the worker's representative confirmed that the condition they were focusing on was disc protrusion, in the environment of pre-existing degenerative or long-term conditions of anterolisthesis and scoliosis. The representative referred to the December 6, 2018 letter from the treating sports medicine physician and noted that when the physician was looking at all of the changes, he was saying that some of the changes are degenerative, but they are mild in nature, and had it not been for the added input of the job duties, he did not think the degenerative portions would cause the worker's symptoms. The representative said it was her understanding the sports medicine physician was suggesting the disc protrusion is causing nerve root contact and that is what is making him symptomatic.

The panel carefully questioned the worker at the hearing with respect to his job duties, including the nature of his tasks and duties, the machinery or equipment he used, the process he followed and his movements and positioning as he performed his various tasks. The panel acknowledges that the worker has a physically demanding job. Based on our review of the information on file and as presented at the hearing, however, the panel is not satisfied that the evidence establishes that the worker's disc protrusion or difficulties are causally related to, or aggravated or enhanced by, his job duties and activities.

The panel notes that while it was suggested at the hearing that the worker began to experience symptoms "when his workload increased for busy days," the panel finds that the evidence does not support this suggestion. Information on file records that in his initial conversation with the adjudicator on December 27, 2017, the worker indicated "No changes in job duties. Same duties for years. No change in production or the number of calls." The worker also indicated at the hearing that their busy times were between September and December and during the spring melt. The evidence on file and at the hearing indicated, however, that the worker started experiencing symptoms in the summer of 2017, during what was typically a slower season.

The evidence further indicates that the worker's symptoms continued to develop and get worse after he had stopped working. The worker said he stopped working in December 2017, after he saw the sports medicine physician, and remained off work for approximately nine months, until the fall of 2018. In spite of this, chart notes from his February 8, 2018 appointment with the sports medicine physician indicate that the worker reported he is sore on the back "and his left calf is now getting involved." Chart notes from his March 12, 2018 appointment with the sports medicine physician further note that the worker reported "he is worse..." When asked about these entries at the hearing, the worker said he could not explain this and that "I don't know if I was getting worse, like maybe I wasn't getting better, I don't know. I was definitely not working." The panel would have expected that if the worker's condition was work-related, his symptoms was not have progressed or become worse once he was away from work.

The panel places weight on the April 16, 2018 opinion of the WCB medical advisor, who reviewed the medical information on file and provided an opinion with respect to the conditions identified on the February 15, 2018 MRI and x-rays on file as they related to the worker's reported symptoms beginning in July 2017. The panel accepts the medical advisor's opinion that "The disc protrusion that is seen is likely a result of the degenerative changes documented at this level rather than a result of workplace activities." The panel also notes the WCB medical advisor's further statement that "The degenerative changes is (sic) the natural progression of the lumbosacral spine. This would occur in individuals without occupational influence as well."

The panel is unable to place much weight on the December 6, 2018 opinion of the treating sports medicine physician given our review of all of the available information and our findings of fact which differ from those relied on by the physician. The panel notes that the sports medicine physician indicated at the beginning of his opinion letter that he saw the worker on December 19, 2017, "complaining of a low back problem which had started in July of 2017. This was a work related injury." The physician later specifically noted that he "had not seen this patient at the time of his original injury in July" and was relying on the history provided by the worker "that his problems have extended from a WCB claim and injury which started in July of 2017." The physician went on to opine that the diagnosis of L5S1 disc protrusion and left L5 nerve contact root irritation could be related to his work activity "and realistically on the balance of probability does in fact relate to this work."

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.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of July, 2019