WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090014
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: June 25, 2009
ATTENDEES: Worker and Worker Representative
ISSUE
The issue in dispute is initial entitlement.
HOW THE ISSUE ARISES
This claim was established on the basis of an Employer’s Report of Injury/Disease (Form 7) advising that on October 17, 2002 this 30 year old material handler claimed to have sustained a low back injury when lifting an 85 to 90 pound box.
The worker submitted a report of injury providing similar details of injury but noted that lost time had been incurred, as of October 26, 2002.
Also received on file were two Health Professional’s Report (Form 8), one from the worker’s chiropractor for treatment administered on October 21, 2002 and from the worker’s family doctor for treatment administered on October 22, 2002. Both reports provided the same injury history of low back impairment resulting from the act of picking up a box at work weighing approximately 80 to 90 pounds. The chiropractor offered a diagnosis of right sacroiliac sprain/strain, right iliolumbar ligament strain and L3-4 intraspinus ligament sprain. The family doctor offered a diagnosis of muscular strain of the lumbosacral spine.
In considering the worker’s entitlement, the claims adjudicator noted that the claim was characterized by a delay in reporting the injury to the employer, the absence of any witness to the injury, a delay in seeking medical attention, and an ability to return to regular work on the day following the injury. The claims adjudicator also noted that the worker’s supervisor confirmed that no complaints were made on the date of injury or the day following. On the basis of these observations, it was concluded that there was insufficient proof of accident to extend entitlement and the claim was denied.
The worker was advised of the decision in the adjudicator’s letter of November 15, 2002. The worker’s letter dated April 15, 2003 objected to this decision. The March 12, 2007 letter from the worker’s representative requested a copy of the claim file. The adjudicator’s letter dated September 27, 2007 to the worker’s new representative mentioned the Objection Form had been received and the appeal would be referred to the Appeals Branch (AB). The worker’s appeal was then referred to the AB. A call from the worker’s representative on February 13, 2008 requested the appeal to be withdrawn as they were no longer representing the worker. This was confirmed when I spoke to the worker over the telephone on February 19, 2008. The worker requested additional time to obtain a new representative. The worker did obtain another representative and the worker’s appeal was referred back to my attention in late January 2009.
AUTHORITY
Please refer to Operational Policy Manual (OPM) document(s):
11-01-01 – Adjudicative Process
15-02-02 – Accident in the Course of Employment
11-01-13 – Benefit of Doubt
ASSESSMENT OF THE EVIDENCE
At the hearing, the worker provided testimony under oath. The worker was a poor historian, a circumstance which was enhanced by the length of time intervening between the claimed date of injury and the hearing. In his testimony, the worker was unable to provide precise comments with respect to the facts of the case, characterizing responses with phrases such as “probably” or “could have”.
Additionally, there were a number of contradictions in his testimony. At one point, the worker stated that he had no back problems prior to October 17, 2002 and then promptly declared that he had been seeing a chiropractor on a fairly regular basis throughout the years since he attended high school for stiffness. He stated that the box of meat that he had lifted was 50 pounds in weight, when the documentation on the claim file from all reports clearly sets the weight at between 80 and 90 pounds.
With respect to an incident occurring on October 18, 2002 when the worker was moving a palette of beer cases, he stated at first that when lowering the palette from a 50 foot height, it had caught on a rack, and caused the palette to spill. Documentation on the claim file and in subsequent testimony, however established that the spill of the palette of beer occurred when the worker struck a pillar when driving the towmotor containing the palette.
He testified that either on October 18 or 19, 2002 when walking down an aisle, he experienced the first stabbing of acute pain in his back, following the lift of October 17, 2002. However, he then testified that he awoke in bed at 3 A.M. on the morning of October 19, 2002 in agony.
He also stated that following the onset of pain on October 19, 2002 he was only able to lie in bed because his pain was greater than a 10 out of 10 level. This comment with respect to the level of pain is in my view, detrimental to the worker’s credibility. In any event, he also stated that he went to the gym and soaked in the hot tub on the weekend. But then he said it might have been later as well.
The worker’s poor recollection of the events of October 2002 in his testimony, leads me to the conclusion that it is unreliable at this time as the basis to make a determination with respect to the worker’s entitlement. I am therefore left only with the review of contemporary documentation which in its close proximity in time to the events of concern and in their consistency, in my view add significant weight to them as evidence.
The Worker’s Report of Injury/Disease (Form 6) indicates that on October 17, 2002 a lower back injury was sustained when lifting an 80 to 90 pound box. There was a delay in reporting the incident until October 23, 2002 because in the worker’s view he felt that the discomfort that he felt would be gone while he had two days off work. This sequence of events is confirmed by the Employer’s Report of Injury/Disease (Form 7), which advises that an injury was reported as having occurred on October 17, 2002 on October 23, 2002. It is observed that this is a five day delay beyond the date of injury and that the worker had worked on October 18, 2002. The Worker’s Report of Injury/Disease (Form 6) does not refute that he continued to work following the date of injury.
It is noted that in the Investigation Report filed by the employer following an interview of October 28, 2002, that the worker did regular work on October 18, and even was required to do some repetitive bending when he cleaned up a spill of beer cases. This circumstance however is the only evidence proffered by the employer that would detract from the claim that an injury occurred on October 17, 2002.
The worker’s supervisor was interviewed on October 29, 2002 and confirmed as per the investigation report that was submitted on file with the Employer’s Report of Injury/Disease (Form 7), that the worker reported an injury to him at 6 A.M. on October 23, 2002. The supervisor confirmed in the interview of October 29, 2002 that the worker looked terrible and that he was therefore sent to the medical centre for an assessment.
The October 23, 2002 documentation of this reporting by the supervisor supports this chain of events. It confirms again, that the worker claimed to have lifted a box of meat weighing 80 to 90 pounds on October 17, 2002 and that it was not reported to the employer until October 23, 2002. It is acknowledged however that the worker saw his family doctor on October 22, 2002.
October 22, 2002 would have been the worker’s first date of lost time following the date of injury as is supported by the Employer’s Report of Injury/Disease (Form 7), which states that the worker could not finish the shift of October 18, 2002.
I am also struck by the supervisor’s comments with respect to the compatibility of the accident history to not only the job description but the claimed injury. It is clear that the worker’s supervisor accepts the worker’s claim that his discomfort was related to the lifting of a heavy weight in the course of his employment.
I am also struck by the consistency of the medical documentation that has been received on the claim file. The chiropractor confirmed that the worker sought treatment on October 21, 2002 which was a Monday, following a weekend when the chiropractor’s office would have been closed. While one might have expected that in a serious and acute state of discomfort the worker might reasonably have gone to an emergency room, the fact that he did not seek medical attention sooner, given his age and his previous experience as per his testimony of prior problems and chiropractic treatment is not entirely unreasonable.
The confirmation of the clinical signs posted by the chiropractor by the assessment done by the worker’s family doctor further supports the worker’s case as does the consistency in the accident history provided to both treating practitioners.
On the basis of the evidence before me, I must accept therefore that there is sufficient evidence to support that the worker sustained a mid to low back injury when lifting and twisting with an 80 to 90 pound box of meat on October 17, 2002.
Lost time was incurred when the worker sought medical attention from his family doctor on October 22, 2002. On October 23, 2002 the worker attended work and was offered work that appears to have been within the restrictions set out by the family doctor. While the worker has indicated that lost time was incurred on October 26, 2002, there is no corresponding medical documentation to support the need for lost time.
On the basis of the evidence before me, therefore I will accept that an injury occurred in the course of employment that required lost time for medical treatment on October 22, 2002.
CONCLUSION
There is proof of accident.
The worker’s entitled to loss of earnings (LOE) benefits for the single date of October 22, 2002.
The worker’s objection is allowed.
DATED June 29, 2009
B. J. Martlin Appeals Resolution Officer Appeals Branch