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Workplace Safety and Insurance Board
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## Appeals Resolution Officer Decision
**DECISION NUMBER:** 20090018
**OBJECTION BY:** Worker
**EMPLOYER:** Participating
**REPRESENTATIVES:** Worker and Employer
**HEARING DATE:** April 30, 2009
**ATTENDEES:** Worker, Employer, Worker Representative, Employer, Employer Representative
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## ISSUES
The worker representative on behalf of the worker has appealed the claims adjudicator’s decision dated November 4, 2008. The claims adjudicator has ruled that there is insufficient evidence available to grant the worker’s request for recurrent benefits and an expansion of entitlement to include neck impairment.
## HOW THE ISSUES AROSE
On February 4, 2004 this worker was cleaning the receiving area and slipped and fell into a parked forklift. He was diagnosed with a lumbar strain and treatment was provided on a conservative basis to include physiotherapy and a graduated return to employment.
The worker attended the regional evaluation centre (REC) in August 2004 and was discharged with a facet joint strain. The prognosis and treatment were for no further physiotherapy and it was suggested that the worker return to modified employment.
The worker underwent a functional ability evaluation (FAE) in August 2005 at which time the worker’s capacities were rated as medium-heavy and suggested a graduated return to employment.
The worker claimed for additional benefits in October 2006. The contemporaneous information on record indicates that the worker was bent down attempting to fix a printer when a co-worker jumped on his back.
The claims adjudicator ruled that the worker was involved in horseplay and therefore removed himself from the course of his employment and denied the worker’s request for recurrent benefits.
Similarily, the worker claimed an additional injury to the upper back and lower neck. The claims adjudicator ruled that the worker is not entitled to an extension of benefits to include these impairments as the worker remained engaged in horseplay as a result of the activities he had undertaken at the time of the injury.
The worker’s representative on behalf of the worker has appealed this decision. This issue is now before the appeals resolution officer (ARO) for further consideration.
## AUTHORITY
The ARO will consider the worker’s representative’s appeal in light of Operational Policy Manual Documents:
11-01-05 – Determining Maximum Medical Recovery (MMR)
11-01-03 – Merits and Justice
15-02-02 – Accident in the Course of Employment
15-03-01 – Recurrences
15-03-11 – Fighting, Horseplay and Larking
18-03-02 – Payment of LOE Benefits
18-03-03 – Reviewing LOE Benefits
## ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The employer representative made oral submissions on behalf of the worker. The employer representative made oral submissions on behalf of the employer.
The worker confirmed his date of birth as July 13, 1978. He states he was employed with the accident employer for approximately eight years and confirmed he has a two year university education.
He states he began with employment with the employer in November 1999 in the Sudbury area transferring in from Moncton.
He states he did leave the employer to go back to school and then returned to them following his stint at University.
He confirms performing various duties and holding a number of job classifications with the accident employer.
He confirms he did not have any prior problems associated with his spine part before the accident of February 3, 2004.
He states he presently uses Robaxcet, Tylenol and Advil, all over the counter medications.
He rates his general health as a three out of ten at the present level.
He also confirms he is presently gainfully employed with a different employer and has been since January 2009.
He confirmed the accident history on record outlined in February 2004 indicating he fell and landed against the forklift, he believes he was off work for approximately one month and then returned to graduated employment over a period of six weeks.
He states he continued to work in “slightly modified” employment through to 2007.
He denies returning to any form of his regular employment.
He states that by 2006 his condition had stabilized and he was able to “self accommodate in all duties in his large sales position”.
He outlined for the record the nature of the activities that occurred on August 26, 2006. He states he had been working with a co-worker earlier in the day and the co-worker was attempting to repair a printer on a low level shelf. He states that he did kick the co-worker in the buttocks in a playful manner. He states the co-worker then left for approximately half an hour.
During this time the worker had been attempting to repair the machine and was bent down on one knee leaning in when he felt a “severe impact on the upper back”. He states that this impact was right between the shoulders directly on the spine. He states that when “he awoke he recalls the co-worker saying that will teach you”.
He states that he had difficulty getting up from the kneeling position. He delayed in reporting the incident to his employer for approximately three days and began to lose time on August 29, 2006. He states he did report to the employer that he had hurt himself at work and he was going to see his physician.
He states the first medical attention was August 30 and he was sent for X-rays of the spine. He thought he had been sent for X-rays of the neck but could not provide any insight as to why there is no radiological examination of the cervical spine. He states his back gradually started to increase in pain over the next few days and it got worse and worse.
The worker denies being involved in any horseplay while at work and indicated that the issue with the co-worker had begun the earlier day. He believes that the co-worker was upset as the result of some auditing procedures that had occurred earlier on in the shift but believed the issue had resolved itself.
He confirms requesting a record of employment from the accident employer and had made a claim, to the employer’s insurance carrier. He states that the insurance carrier denied the workers request for coverage.
He states he then relocated to Prince Edward Island and underwent an MRI which demonstrated a cervical disc.
He states once the results of the MRI were known he received the proper treatment and has been able to become gainfully employed.
The worker was unable to provide any suitable explanation regarding his testimony for any now reported loss of consciousness.
He denies any activities outside of the employment which he could relate the increase of spinal discomfort to.
The worker representative admits that Section 2(1) of the Workplace Safety and Insurance Act (the Act) does govern the adjudication of the incident at issue. He notes that the worker was involved in an accident at work in August 2006 as the action can be seen as a wilful act not being the act of the worker.
He also submits that the worker has developed a serious impairment as a result of the activities in the workplace and Section 17 applies as any suggestion of horseplay can be negated in light of the serious impairment resulting. He submits that Section 119 of the Act would allow the benefit of doubt to be extended to the worker.
He notes that no testimony has been provided by the co-worker and submits that the viva voce evidence provided by the worker should outweigh the contemporaneous information on record. He notes that the root cause of the horseplay was a work issue and that the worker was an innocent bystander following the attack made by the co-worker.
He submits that the workers presenting impairment is compatible with the original injury and also supports the development of a cervical disability stemming from the
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