DECISION NUMBER: 20230041
OBJECTING PARTY: WORKER
REPRESENTED by: SELF
RESPONDENT: EMPLOYER (NOT PARTICIPATING)
REPRESENTED by: NONE
HEARING: VIDEO CONFERENCE – FEBRUARY 13, 2023
HEARD by: H. MOHAMED, APPEALS RESOLUTION OFFICER
ADDITIONAL ATTENDEES: INTERPRETER
ISSUES
The worker objects to the Eligibility Adjudicator’s (EA) decisions dated April 7, 2022, which determined the worker did not have entitlement to low back and bilateral knee injuries.
BACKGROUND
This now late thirties year old worker started working as a school bus driver for the employer in September 2021. On March 21, 2022, the worker reported low back and bilateral knee injuries to their employer, which they attributed to prolonged sitting and increased hours in February 2022. The worker was diagnosed with acute lumbar strain and sacroiliac (SI) joint dysfunction. A subsequent MRI confirmed some mild degenerative changes in the lumbar spine without evidence of acute pathology or nerve impingement.
In a decision dated April 7, 2022, the EA denied the worker’s claim on the basis that it could not be established that their job duties were a significant contributing factor to the back pain and bilateral leg symptoms. This decision was reconsidered and upheld on September 7, 2022.
The worker’s objection to the April 7, 2022 decision is the subject of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA) – Section 13
Published Operational Policy Manual
11-01-01 Adjudicative Process November 3, 2008
15-02-01 Definition of an Accident November 3, 2014
ANALYSIS
For the reasons that follow, I find there is evidence to support that the worker’s job duties either caused or significantly contributed to the development of their low back injury with radiation down the left leg.
Testimony and Documentary Evidence
The worker testified they started working as a school bus driver for the employer in September 2021. Prior to obtaining this job, they were unemployed for over 18 months and had not worked in any capacity. Within three months of starting this job, the worker said they began to notice pain in the left buttock area that radiated down the back of their left leg into the knee. The worker said they went for massage therapy but this did not improve their condition. The worker testified they never had this problem before. The worker explained they worked two hours in the morning (7:15 AM to 9:15 AM) and from 1:30 PM to 4:15 PM in the afternoon. Initially, they only drove within their local area and the driving was not too difficult.
By the end of January 2022, the school bus route changed and they were now working from 1:30 PM to 5:30 PM in the afternoon (an extra hour and 15 minutes). More importantly, they were now responsible for driving all over the city of A to drop off children to different schools, and were no longer confined to a small geographic area. The worker said this meant a lot more driving with no opportunity to take any breaks because of time constraints. As a result, the worker began to experience significant back and left leg pain and had to go see their doctor. It was only after they saw a physiotherapist that they were told the problem was likely coming from the low back and was due to the prolonged sitting and excessive driving. The worker confirmed that they did not suffer any specific accident or injury to the lower back. Rather, they believe the constant sitting from 1:30 PM to 5:30 PM along with the excessive driving is the primary cause of their back problems. Additionally, the worker said that the school bus seat was not very comfortable and could not be properly adjusted, and this also contributed to the back injury.
The worker confirmed they have not worked since the accident and continue to have ongoing back problems to this day. The worker confirmed they have gone for a number of investigations and studies but no one has been able to tell them the cause of their ongoing symptoms. The worker said their symptoms have improved by approximately 40% since the date of injury. However this is also because they attended an aqua fit program during the summer which they paid for out of pocket. Since they stopped this treatment, their symptoms have returned.
The worker testified they never had back problems prior to this incident. Aside from migraines, the worker said they were very healthy and have no other medical conditions. The worker also does not engage in any non-work-related activities that could have caused them to experience these symptoms. The worker confirmed they were only seeking entitlement to a low back injury with radiating left leg symptoms. The worker said they have no issues down the right leg and they were not claiming any injuries to the neck or bilateral shoulders as being work related. The worker stated the neck and shoulder issues are unrelated to their job duties and have primarily resolved.
The medical information on file confirms the worker was seen for low back and left leg issues in March 2022.
Dr. Edgar, chiropractor, completed a Form 8 on May 2, 2022, providing a diagnosis of subacute left lumbar and SI joint dysfunction. He documented the accident history as gradual onset of back pain due to a new route that resulted in increased sitting. In his report dated June 22, 2022, Dr. Edgar stated that the worker was initially seen by him on April 23, 2022. The worker presented with low back pain referring down the left leg. Based on the worker’s examination and history, he concluded the pain was caused by prolonged sitting as a bus driver.
The physiotherapist also provided an email response to the worker dated April 6, 2022. The physiotherapist documented that based on their assessment the worker’s left leg pain leg was coming from the spine. The therapist felt the pain was aggravated by prolonged sitting that placed constant loading on the spine and irritated the nerve resulting in the referred pain.
I note the worker underwent an MRI which did not identify any issues with the lower back other than some very minor degenerative disc disease. There was no evidence of any disc herniation or nerve root compression. The worker was also seen by a rheumatologist who confirmed the worker’s symptoms were not the result of any autoimmune disorder. The rheumatologist concluded that the worker’s back pain was likely mechanical and recommended that the worker find employment that did not require prolonged sitting.
Discussion and Reasoning
Section 13(1) of the WSIA states that a worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. Subsection 13(2) of the WSIA states that if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
Policy 11-01-01 (Adjudicative Process) states that a five point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history.
According to Policy 15-02-01 (Definition of an Accident) an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of chance event is an identifiable unintended event which causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties. As the worker is claiming their low back injury was caused by prolonged sitting, the worker’s accident would be characterized as a disablement that occurs gradually over time. In other words, it is not considered a “chance event.”
The importance of distinguishing between a chance event accident and a disablement accident relates to whether the presumption outlined in section 13(2) of the WSIA applies. If the injury is the result of a “chance event” that occurred while the worker was at work or while in the course of employment, it is presumed that the injury arose out of that employment, unless the presumption is rebutted. The presumption does not apply in the disablement cases. As such, in a disablement accident the onus falls upon the worker to prove that the injury not only occurred in the course of their employment but also arose out of their employment. However, the worker does not need to prove this unequivocally. Rather, the burden of proof is on a balance of probabilities. The test that is applied to the issue of causation is one of “significant contribution.” A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
Having considered the facts of this case, I am satisfied on a balance of probabilities that the worker’s job duties either caused or significantly contributed to the worker’s low back injury resulting in radiating symptoms down the left leg.
The worker testified, and I accept, that they did not have any low back or left leg issues prior to starting employment as a school bus driver in September 2021. I also accept the worker’s testimony that they are not engaged in any activities or hobbies outside of work that could either cause or contribute to the worker’s back problems. The worker’s back condition has been fully investigated and no other cause has been identified that could explain the worker’s back issues other than their job duties as a bus driver.
The MRI did not identify any underlying pathology that might explain the worker’s symptoms. The worker was even referred to a rheumatologist, but they also could not find any systemic explanation for the worker’s back pain. This resulted in the rheumatologist concluding that the back pain was likely mechanical. In the absence of any medical opinion stating otherwise, I have placed significant weight on both the chiropractor and the physiotherapist’s opinion that the prolonged sitting likely caused (or at the very least contributed) to the worker’s low back problems. The fact that the worker had not worked in any capacity for 18 months prior to obtaining this job, provides compelling evidence that the worker was unaccustomed to the prolonged sitting and driving in an uncomfortable seat that was difficult to adjust.
The onset of symptoms within three months of starting employment provides a strong causal relationship between the job duties and the worker’s symptoms. Finally, according to medical literature, the risk of low back and SI joint pain significantly increases with sustained upright trunk posture with limited possibilities to change posture or position. This is precisely what the worker described during the hearing.
For these reasons, I am satisfied that the worker sustained a personal work-related injury to their low back that arose out of and in the course of their employment. Furthermore, I am satisfied that the diagnosis of lumbar and SI joint dysfunction is compatible with the accident mechanism described by the worker.
CONCLUSION
The worker has initial entitlement to a low back injury with radiating symptoms down the left leg due to their job duties as a school bus driver. The nature of benefits flowing from this decision is remitted back to the Operating Area for further adjudication.
The worker’s appeal is allowed.
DATED February 20, 2023
Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division