Decision #70/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on June 16, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed a Worker Incident Report with the WCB on June 13, 2016 reporting that he injured his right lower back in an incident at work on June 9, 2016. He described the incident as driving for long hours in a vehicle with no cruise control and a “Piece of foam on the left side of the seat missing, which makes me lean to the left, using the accelerator with my right foot.” He noted that he drove an average of two to four hours per day, five days a week and that he first started noticing his symptoms in February 2015 when he started getting back pain, then stiffness and irritation progressing to tingling in his toes and numbness in his left leg. The worker noted that he now has constant tingling in his toes and feels stiffness and irritation when he sits.
On June 14, 2016, the worker discussed his claim with the WCB. He confirmed that he started driving the vehicle with no cruise control in August 2014 and another vehicle received in October 2014 also with no cruise control and a damaged driver’s seat, which he drove until he was given a new vehicle by the employer in approximately the beginning of March 2016 after providing a medical note. The worker advised his injury was in his “Low back, almost to the tail bone. Symptoms include tingling in toes of left leg, burning down outside of calf of left leg…” and that he noticed the onset of his symptoms in December 2015. He further advised that there was not an increase in his duties at that time but his symptoms got progressively worse. However, he did not experience the symptoms when in his personal vehicle.
The WCB was provided with a copy of the medical note, on June 15, 2016, from the worker’s treating physician dated January 29, 2016 noting that the worker had “Underlying Osteoarthritis R (right) knee (confirmed MRI)”, “Needs to have proper seating in vehicle – may not sit at an angle” and “Due to arthritis of the knee needs to be able to move knee around – R knee affected – therefore needs cruise control to be able to do”. Also received on June 15, 2016 was a chart note from the worker’s June 13, 2016 appointment at a walk-in clinic. The treating physician noted the worker’s previous history of lumbar disc disease in the L4-5 region and surgery in 1991. The worker reported having symptoms off and on for the past year and a half, with severe symptoms for the last two weeks and thought it was partly related to his work vehicle having a damaged seat cushion and no cruise control. No tenderness was indicated, with the worker’s flexion noted to be good to his knees, pain noted on extension and lateral flexion bilaterally. It was further reported that the worker developed paresthesia in his first few toes while attempting a straight leg test. The physician diagnosed the worker with lumbar disc disease, recommended the worker be off work for two weeks and to follow-up with his family physician in a week.
At his initial physiotherapy appointment on June 16, 2016, the worker reported to the physiotherapist that he injured his back while “weed wacking” and raking, with the Date of Incident reported as “3 months ago”. Positive slump and straight leg raise tests were noted along with an increased paraspinal tone greater on the right than the left. Restrictions of no weed whacking or raking, limited bending, work in body envelope, improved vehicle seat in truck so no sitting crooked, no crouching and no lifting greater than twenty pounds for four hours per day was recommended after the worker was diagnosed with a disc protrusion.
The worker saw his family physician on June 21, 2016 for a follow-up appointment. He reported a back ache with numbness in his legs. The physician noted normal straight leg raise tests, diagnosed the worker with a back ache and placed him off work until July 1, 2016.
In a conversation between the WCB adjudicator and the worker’s supervisor on June 22, 2016, the supervisor confirmed to the WCB that the worker reported his back issues to him on June 13, 2016 and advised he was seeking medical treatment for his back. The supervisor advised the worker had not mentioned issues with his back to him prior to June 13, 2016 and when he spoke to him three or four days earlier, the worker mentioned that the weed whacking he had done as part of his job duties may have irritated his back.
On July 21, 2016, the worker was advised by the WCB that his claim was not acceptable. The WCB found that as the worker delayed in reporting his injury and delayed in seeking medical treatment, a relationship between his difficulties and a workplace accident could not be established. Further, the WCB noted the worker was relating his back difficulties to a work vehicle with a damaged seat and no cruise control, which vehicle was replaced in March 2016 but the worker reported a continued worsening of his symptoms.
On June 7, 2017, the worker submitted a detailed chronology of the events of his claim and requested reconsideration of the WCB’s decision to Review Office.
Review Office found on June 24, 2017 the worker’s claim was not acceptable. Review Office accepted the information on the worker’s file from his treating healthcare providers that he had pre-existing degenerative osteoarthritis in his right knee, lumbar disc disease and a lower back surgery. Review Office could not establish a relationship between the worker’s use of a work vehicle and the worker’s reported complaints of pain and stiffness in his lower back as the complaints were made before and after a new vehicle was provided to the worker in March 2016. As such, Review Office found the medical evidence supported the worker’s difficulties were a result of his pre-existing degenerative conditions and not a workplace accident.
The worker’s representative filed an appeal with the Appeal Commission on December 17, 2019. An oral hearing was arranged, and proceeded by way of teleconference on June 16, 2020.
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,
(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 22.214.171.124, Pre-existing Conditions (the "Policy") 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.
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.
WCB Policy 44.05 addresses Arising Out of and in the Course of Employment and states:
Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. The Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.
The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.
The worker advisor submitted that the worker suffered from a gradual onset injury in the nature of a sprain/strain, caused by repetitive use of a vehicle which was missing foam on the seat of the truck which the worker was required to drive. The worker had a pre-existing back condition which made the worker more vulnerable to injury and driving with a poor seat aggravated the worker’s pre-existing condition.
The worker stated that he was required, commencing in August 2014, to drive a vehicle with no cruise control. The worker complained to the employer that driving the vehicle was causing back pain. The employer gave him a different vehicle in October 2014 but it had a very poor seat and no cruise control. The employer did not provide an alternate vehicle, despite the worker’s persistent complaints, until March 2016. The worker says that this vehicle also did not meet his needs and his back continued hurting. He drove that vehicle for about a year, although he was not working full time. In August 2018, the worker received another vehicle which met his needs and his back pain has been greatly relieved.
Following the 1991 back surgery, the worker said he had no problems driving. However, after getting the vehicle in August 2014, he began to suffer back pain and it got worse after he received the alternate vehicle in October 2014. Initially, the worker found that his symptoms dissipated after his work shift ended but eventually the symptoms stopped improving after he stopped working. The worker tried different seating and leg positions, using a prop to push the gas pedal, and taking breaks to walk around, but these efforts did not eliminate the pain. He did not get significant improvement to his back until he received chiropractic treatments and eventually received the better vehicle in August 2018.
The worker's employer did not participate in the hearing.
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, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding, for the reasons that follow.
Following surgery in December 1991, the worker no longer suffered from back pain. He was, however, diagnosed with lumbar disc disease, a degenerative back condition. The worker did not again suffer back pain until 2014, after he started driving a vehicle with no cruise control and then a vehicle which had a damaged seat and no cruise control. His pain initially resolved within a short period of time when the worker sat differently, shifted position and took breaks, but eventually his back pain did not resolve, even when he stopped working. The back pain did resolve once the worker received a vehicle with cruise control and proper seating.
The panel accepts that driving a vehicle with a damaged seat, which caused the worker to sit and drive in an unergonomic position for lengthy periods of time, would have aggravated his pre-existing back condition.
Based on all of the evidence on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker suffered a new injury by accident arising out of and in the course of his work duties, which aggravated a pre-existing condition. The panel therefore finds that the worker’s claim is acceptable.
The worker's appeal is allowed.
K. Gilson, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of July, 2020