WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090019
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: May 20, 2009
ATTENDEES: Worker, Employer, Worker Representative, Observer
ISSUE
The worker’s representative on behalf of the worker has appealed the claims adjudicators’ decision dated June 17, 2008. The claims adjudicator has ruled that there is insufficient evidence available on record to support the granting of initial entitlement.
HOW THE ISSUE ARISES
A claim has been established with an accident date of March 24, 2008 for this assembler. The worker claimed a gradual onset of pain in the left hip and lower back and related it to her occupation in general.
The claims adjudicator solicited the advice of the Workplace Safety and Insurance Board (WSIB) ergonomic specialist who has unable to demonstrate any significant risk factors in the worker’s employment to relate the onset of the worker’s claimed impairment.
The claims adjudicator accepted the opinion provided by the WSIB ergonomic specialist and denied the worker’s request for initial entitlement.
The workers representative on behalf of the worker has appealed this decision and this issue is now before the appeals resolution officer (ARO) for further consideration.
AUTHORITY
The ARO will consider the worker representative’s appeal in light of Operational Policy Manual Documents:
11-01-01 – Adjudicative Process
11-01-02 – Decision-Making
11-01-03 – Merits and Justice
11-01-15 – Aggravation Basis
EXHIBITS
The workers representative supplied for the record a copy of avascular necrosis prepared by the Mayo Clinic.com. The above was accepted for the record by the ARO.
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The worker representative made oral submissions on behalf of the worker. The employer representative made oral submissions on behalf of the employer.
The worker confirmed that she had had ongoing difficulties with the left leg which she concluded and self diagnosed as being a condition of sciatica. She denied receiving any medical attention or treatment and indicated it had been present for a number of months and years.
She states that she would be in pain on a regular basis but she did not seek any medical attention and did not require any restrictions and was able to perform all aspects of her regular occupation.
She outlined briefly for the record the nature of her pre injury occupation which included employment for approximately 4 years in a supermarket working in the bakery and deli. Prior to this she was a hairstylist for approximately 12 to 15 years.
She states that approximately 4 to 6 weeks prior to the onset of significant difficulties with her left hip there was a change in the line. She outlined for the record the nature of the production line that she was working on.
She states it was in a u shape and was made smaller by the employer and the 5 people working on the line were reduced to 4. She states that the production rate remained the same of approximately 750 to 800 per shift.
She outlined for the record the nature of each assembly station as outlined in the ergonomic report.
She did believe that the ergonomist did not truly capture the complete picture of her pre accident employment. She states at the time of the ergonomic assessment a number of temporary staff were occuping the positions therefore she feels that the full line speed was not available to the ergonomist.
She states that she would require constant twisting and turning to perform all aspects of the operation.
She states that she would rotate through the various workstations on an hourly basis.
She also confirmed that while the machine was cycling to produce the seatbelts she could stand in a neutral position. She also confirms that all stations are supplied with anti fatigue matting.
She states that she is required to wear safety shoes with a safety cap and rubber sole.
She states that she did not have any prior hip fractures or significant problems and characterized the nature of her pre injury discomfort as being sciatic in nature. She states that on March 24, 2008 she felt a “jolt of pain in the hip” and screamed out in discomfort.
She states that her co-workers listed on record are in fact only co-workers and she does not socialize with them out of work. She states that they both heard her scream in pain. She stated she was on the packing line at the time and twisted to return to the final station when she felt a severe onset of pain which was quite worse then before.
She states she continued to perform her regular employment and was putting up with it as she had experienced regular discomfort in the past.
She noted that she declined to report the injury to the employer and first sought medical attention following a drive to Kitchener. She states that following this drive she could barely move and she found a chiropractor’s office that was open. She states that she reported to the chiropractor that it may be due to her twisting and turning at work and she was advised to seek medical attention upon her return home.
She states she first reported to the employer and left 2 messages for various supervisors and the first person she was able to speak to was the supervisor and she indicated that she had been told she had a “femoral nerve problem” and believes she indicated it was due to twisting and turning at the line.
She states she received chiropractic care for approximately two weeks who then advised her to seek the advice of her family physician. She states she then spoke to the employer who suggested that she go on sickness and accident benefits.
Following a prolonged layoff she determined that she should be applying for Workplace Safety and Insurance benefits. She states she then reported the injury to the employer and an Employer’s Report of Injury/Disease (Form 7) was completed. She states that the employer’s representative indicated that “it was a little late” to claim for compensation benefits.
She indicates she denied in reporting the accident to the employer so she thought she could work it out. She denied any additional accidents or incidents subsequent to March 24, 2008 in which to relate the ongoing symptoms to. She also indicated she was unaware that her family physician had completed the sickness and accident forms indicating that the injury was non occupational in nature.
She confirms that she has undergone clinical investigations and it has been determined she experiences avascular necrosis of the left hip and remains in a non weight bearing posture to the present time.
She does confirm that she filled out the Worker’s Report of Injury/Disease (Form 6) and indicated the accident date was in error and is unable to provide any insight as to why she completed the accident date for March 11 2008.
She states she failed to report the work related injury as it was “easier to go the S & A route”. She states that she eventually began to realize that the condition was much more serious and felt that she should then claim for benefits.
The worker representative submits that the contemporaneous evidence on record suggests that there was no delay in reporting of the injury for the right hip. He does note that the clinical documentation does suggest that the misdiagnosis was initially provided which was understandable given the worker’s constellation of symptoms. He states that the worker has developed a left hip aggravation as a result of her work duties in general and submits that the WSIB’s operational policy on an aggravation basis should be invoked.
He submits that the worker has experienced an aggravation of an asymptomatic condition and the worker remains in the acute phase of the aggravation to the present time. He also notes that the worker does present with mild degenerative disc disease of the lower spine and suggests that the underlying disc disease in the lower spine has been aggravated by the repetitive twisting and turning as testified to by the worker.
He notes that the initial chiropractic documentation on record does record a “sharp hip pain” and that the worker did in fact report to the treating chiropractor that she injured herself at work.
He notes the worker’s testimony and suggests that the worker has provided the information in a straightforward and credible manner and has not provided any self serving statements throughout the testimony and the contemporaneous evidence on record.
He also notes that the worker did report the injury to the employer and suggested the employer contact should have undertaken additional investigation with the worker to ascertain what had occurred.
He also noted the worker’s co-workers information on record do confirm that there was a lot more twisting and turning since the line had been reduced in size. He also notes that the worker’s co-worker does confirm this specific incident taking place and suggests that the sudden onset of pain to the left hip is indeed compensable.
He also notes the document provided from the Mayo Clinic suggests that the treatment of non weight bearing would provide an inference that repetitive twisting and turning and weight bearing would aggravate the underlying condition.
He also notes the ergonomic assessment that was performed by the WSIB does suggest that the mechanics of the job duties would aggravate a hip condition. He submits that the balance of evidence does fall in favour of the worker and supports an aggravation of a pre existing underlying condition and the worker remains in the acute phase and initial entitlement should be granted.
The employer representative submits that the WSIB has fully investigated and considered all aspects of the case and he notes the WSIB’s medical advisors suggest that the injury diagnosed with the worker is not compatible to her occupation in general.
He also submits that proof of accident has not been established given the workers delay in reporting to the accident employer and that the accident employer was not made aware of the worker claiming workers compensation benefits until approximately May 2008 some 5 weeks after the onset.
He also notes that the workers general practitioner completed the insurance policy documentation on behalf of the worker indicating that the worker was experiencing a non occupational illness.
He notes notwithstanding the change in the geographic make up of the line on which the worker was working on it does not support any increase in twisting or turning or does not support any mechanism of injury to the lower back or left hip.
He notes the ergonomic assessment does not provide any such physical activity which could be seen as a causative factor in the onset of the workers claimed impairment. He also reiterates that no proof of accident has been established and supports the claims adjudicator’s decision to deny initial entitlement.
He suggests that although the worker may have experienced an ongoing onset of pain while in the employment it is not enough to establish a causative factor of the work duties being performed by the worker to support the granting of initial entitlement.
He cites that the worker’s treating specialist is not supportive of the avascular necrosis being related to any job duties and submits that the balance of evidence does not fall in favour of the worker and the initial entitlement claim should be denied.
The worker has testified to a change in the geographic make up of the line in which she was working on. She did provide specific testimony and detailed remarks regarding the nature of the work being performed.
It is noted that the worker would always be twisting and turning to the left to return to the original start of the work station in which she was working on. It is also noted the worker would be moving from station to station on an hourly basis which would reduce the amount of repetitive twisting and turning that the worker has alluded to.
It must be noted that it is not enough to have the onset of pain occur at work there must be something specific in the employment in which to relate a causative factor of the workers job duties or employment in general.
Although the worker has suggested that there has been an increase in activity as a result of the reduction of one person from the line it is the understanding of the ARO that the reduction of space in the line has not produced a requirement for an increased productivity nor has it required an increase in the amount of physical activity in which to produce a part.
The combining of a number of stations is outlined in the ergonomic report would in the ARO’s view actually reduce the amount of turning that would be required. If the worker had previously been required to only perform duties on 2 stations such as Anchor sew and ALR test it would require a turn in position to return to the original set up of the stations such as Anchor sew and by adding an additional station to the workers occupation would in fact reduce the amount of turning back to begin the process once again.
It is noted the production rate has remained relatively the same subsequent to any change in the occupation.
Of particular interest is the worker’s suggestion that she experienced a sudden onset of pain in the left hip while in the performance of her duties. The sudden onset has been confirmed through statements made by the witnesses. However once again it is not enough to have the onset of difficulties occur at work there must be something particular in the employment in which to relate a causative factor.
The workers representative has suggested that the worker has experienced an aggravation of a pre-existing underlying condition. While this may be the case there is nothing in the employ that would suggest that the risk factor associated with the aggravation of this type of injury would be any greater than that then what would be exposed to by the normal general public.
Following the “specific” incident the worker confirmed that she was able to continue in the course of her regular employment.
It could just as easily be accepted or suggested that this sudden onset of pain in the left hip could result just as easily outside of the employment.
It is noted that the worker following an approximately 3 hour drive to Kitchener could “barely move”. It could just as easily be suggested to infer that the prolonged sitting and mechanics of operating a motor vehicle could have aggravated the avascular necrosis that would indeed be a progressive illness.
In short, the worker would in my view have developed a coincedental onset of significant pain in the hip which was initially suggested to be having a genisis in the lower back. This has not been proven from a clinical perspective and the worker has indeed experienced a non occupational aggravation of non occupational condition of avascular necrosis of the left hip.
CONCLUSION
Having reviewed the evidence on record, considered the submissions made by the representative and heard the testimony provided by the worker it is the judgement of the ARO that:
There is insufficient evidence available to support the granting of initial entitlement
The ARO finds that the worker has indeed developed a non occupational illness and the aggravation of the underlying condition cannot be directly attributable to the work place duties.
The worker’s appeal is denied.
DATED June 4, 2009
N. J. Shruiff Appeals Resolution Officer Appeals Branch