FD: FD: DT:D DN:301 STY: PANEL:Catton; Lankin; Jago DDATE: TYPE:A ACT: DECON: CCON: SCON: BDG: REGS: PDCON: DIST: KEYW:accident; disablement;

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1 FD: FD: DT:D DN:301 STY: PANEL:Catton; Lankin; Jago DDATE: TYPE:A ACT: DECON: CCON: SCON: BDG: REGS: PDCON: DIST: KEYW:accident; disablement; significant contribution; aggravation; pre-existing condition (degenerative disc disease); medical report; board doctors; back conditions (disc condition); lifting PD: IDATE: HDATE: TCO:V. Mark KEYPER:J. Farrell; L.A. Liversidge XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 301 This appeal was heard on May 29, 1986, by: N. Catton: Panel Chairman, F. Lankin: Tribunal Member representative of workers, D. Jago : Tribunal Member representative of employers. THE APPEAL PROCEEDINGS The worker is appealing a decision of the Appeals Adjudicator dated September 11, In that decision, the Appeals Adjudicator found that the worker was not entitled to benefits for lost time on November 10 and 11, 1983, and after March 26, The worker attended the hearing and was represented by J. Farrell, of the Canadian Auto Workers. The employer was represented by L.A. Liversidge. The Panel was assisted by V. Mark of the Tribunal Counsel Office. THE EVIDENCE The Panel had before it the Case Description prepared by Tribunal counsel which included documents obtained from the WCB file. In addition, Mr. Liversidge provided the Panel with written submissions. The worker gave evidence under oath. Because the submissions were in writing, Mr. Farrell was given an opportunity to review them and make further written submissions at the conclusion of the hearing. Submissions were made by Messrs. Farrell and Liversidge, and Ms. Mark at the conclusion of the hearing. THE NATURE OF THE CASE Between 1970 and 1983, the worker had a number of low back injuries which were recognized as compensable by the WCB. The majority resulted in no lost time from work. On November 10, 1983, the worker allegedly sustained a compensable accident and requested benefits for lost time on those days. The claim was originally allowed and subsequently denied by the Appeals Adjudicator. The worker also testified that back problems which prevented him from working after March 26, 1984, were the result of his numerous previous compensable back problems. In addition, the worker argued that as a result of the heavy nature of his work his back problem progressed and culminated in the significant disability which became apparent in March of It is therefore his contention that he should be granted entitlement to benefits from March 26, 1984, until November 29, 1984, when he returned to work.

3 2 The employer's position is that the worker's condition is due to an underlying disease. The employer's view is that it is the disease process which is responsible for the recurring symptoms and not the work. It is therefore its position that there is no entitlement to any further compensation benefits. The Appeals Adjudicator determined that there was no accident to account for the layoff in November 1983 and that the subsequent lay-off in March 1984 was the result of a pre-existing condition and not related to any of the previous accidents. THE PANEL S REASON In 1970, the worker began employment with the company which manufactured automobile parts. He originally worked in the parts department, then became a welder, and was eventually trained as a crane operator. There is no dispute that his work over the next 13 years with the company was heavy. He would be required to lift and move heavy parts for welding. When he was eventually transferred to the crane operation, he was responsible for the operation of the crane for two hours and responsible for hooking heavy pieces of metal to the crane for two hours. In addition to his work, the worker had an active social life, bowled, played hockey and softball. The Panel is left to decide whether the heavy nature of the worker's job or his previous work injuries made a significant contribution to his 1984 disability. The medical reports on file show that the worker suffered from numerous incidents of low back pain. There is no specific work accident that caused a back problem except for one period in Most of the worker's pain at work resulted from the doing of his normal job. It must be noted and the Panel accepts that his normal job did involve a great deal of lifting and stress to the back. The Panel has no reason to question the Board's acceptance of the numerous claims in this file as work related. The medical evidence indicates that the worker's condition was originally diagnosed by his family physician in 1976 as recurring muscle spasm. This problem was brought on after a full shift of heavy lifting when a conveyor belt broke. This diagnosis reappeared in Because of the recurring nature of his problem, the family physician referred him to Dr. Reid, an orthopaedic specialist, who reported on May 9, 1977, that the worker was suffering from degenerative disc disease. In a report of October 1978, Dr. Reid noted that the pain was radiating down the worker's left leg. The worker was subsequently seen by Dr. Fowler, another orthopaedic surgeon, in Dr. Fowler indicated that the worker's problem was a mechanical problem and noted that by the history of complaints, the problem no doubt started as a herniated disc. Eventually, the worker's symptoms progressed and on March 24, 1984, his right leg gave out while he was showering and he fell in the tub. Two days later he was seen in the emergency department of a local hospital and a diagnosis of a disc protrusion was made. At that time, Dr. Reid suggested that he undergo surgery for the problem. The worker rejected this approach and requested a referral to another orthopaedic specialist. The worker was seen by Dr. S. Bailey, of the Orthopaedic, Traumatic and Hand Surgery Clinic in London, Ontario. At that time, Dr. Bailey confirmed the diagnosis of a disc protrusion and made the following comments on causation:

4 3

5 4 It would appear that this patient has had low back pain initiated at the time of work many years ago and has had subsequent symptoms culminating or leading up to a frank disc protrusion with which he is suffering at this time. In reaching a decision, the Panel has also reviewed the medical evidence on causation. Both Dr. Fowler and Dr. Bailey are of the opinion from the worker's history that his problems began as herniated disc and subsequently developed over time to a frank disc protrusion. In contrast to those opinions, the Panel took note of the report of Dr. Grossman of the WCB who wrote: From a medical point of view - the worker had D.D.D. as far back as his 1976 injury and subsequent aggravations are for the most part allowed due to incidents. None of the incidents indicate anything more than a soft tissue strain superimposed on the D.D.D. and I do not identify "giving out of the leg" with no abnormal neurological findings. The March 24, 1984, shower incident is due to his D.D.D., and bears no causal relationship to the previous claims. (sic) The worker argued that he was not suffering from degenerative disc disease and that his problems are solely attributable to his accidents at work. In contrast, the employer is arguing that the problem is solely the result of an underlying disease process. After reading the literature supplied by the employer and reviewing the facts the Panel is of the opinion neither position is reasonable. It would appear that this worker, like everyone is growing older and his discs are degenerating, so that there is a degenerative process going on. However, according to Dr. Fowler and Dr. Bailey he suffered damage to a disc or a herniation when he first began to experience symptoms in November These opinions are made by qualified orthopaedic specialists, who had a good understanding of the facts and examined the worker. In the Panel's view, they outweigh the opinion of Dr. Grossman that the worker was simply suffering from recurrent muscle strains or soft tissue injuries. Following the initial onset of back pain, at work after heavy lifting the worker continued to have recurring symptoms on a regular basis. Sometimes the symptoms recurred after an arduous working day and sometimes a normal day. According to the company medical records, the worker was seen about 50 times in the first aid department for back complaints between 1976 and There were also six incidents of low back pain recognized by the WCB. There is no evidence before this Panel that there were back problems prior to the onset of the disability at work. It is therefore the Panel's finding that the worker suffered an injury to his disc in 1976 which continued to be symptomatic. This damaged disc ultimately protruded. The initial disc injury was a compensable injury. The subsequent periods of disability resulted from the compensable injury and they are therefore compensable. With respect to the issue of entitlement to benefits on November 10, and 11, 1983, the Panel notes that the claim was originally allowed. Subsequent

6 the Board determined that the back pain experienced by the worker was 5

7 6 attributable to degenerative disc disease and therefore not compensable. The decision to deny entitlement for these two days was confirmed by the Appeals Adjudicator because there was no specific accident identified to be the cause of the increased pain. The Panel notes however according to the evidence cited in the Appeals Adjudicator Decision, the work engaged in by worker prior to the onset of pain was heavy. It involved occasionally lifting weights up to 250 lbs. In the Panel's view it is more likely than not that the worker suffered an exacerbation of low back pain as a result these activities. We therefore find that the back pain was the result of "disablement arising out of and in the course of employment" and therefore compensable. THE DECISION The worker's appeal is allowed. The WCB is ordered to reinstate benefits for the period November 10 and 11, 1983, and to calculate the benefits owing as a result of the lay-off between March 1984 and November DATED at Toronto, this 25th day of May, SIGNED: N. Catton, F. Lankin, D. Jago.

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