WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090022
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: June 23, 2009
ATTENDEES: Worker
ISSUE
The issue in dispute is proof of accident.
HOW THE ISSUE ARISES
This claim was established on the basis of a Health Professional’s First Report for treatment administered on April 7, 2008. The doctor’s report notes an incident history of chronic condition worsened since February 2008 and provides a diagnosis of degenerative disc disease (DDD) and spinal stenosis. Also received on the claim file was a Worker’s Report of Injury indicating that on November 10, 2007 approximately, he sustained a low back injury when working as a café supervisor. The incident history was not described by the worker. He stated simply that it started, “A little after one week it got worse and I went to the doctor and he told me to do workers comp. I told the owner he said if I go to Workplace Safety and Insurance Board (WSIB) I will have no job when I return. I was then told since I hurt myself I do not care about the business. So I had enough.” The worker then states that two to three days later on the second day he sought medical attention from his doctor. The Worker’s Report of Injury is dated May 14, 2008.
The Employer’s Report of Injury notes a date of injury of April 2, 2008 and advises that nothing was ever reported to the employer though coworker A did have information with respect to the accident reported. It was noted that there was a sudden specific event involved which involved the shovelling of snow. However, it was noted that the worker did not mention any of this to the employer until his termination at which time he quit in the employer’s submission. The employer attaches a May 1, 2008 letter addressed to the WSIB indicating that the worker had been reprimanded for negligence of duty on April 1 2008 and at that time stated that he wanted to claim worker’s compensation as he had hurt his back when shovelling snow.
In the decision letter of May 29, 2008, following further enquiry notes by the Operating Area, the claims adjudicator (CA) noted that the Report of Injury completed May 14, 2008 states that the injury occurred on November 10, 2007 when he felt low back pain. Another statement from the worker completed on May 15, 2008 indicates that he injured his back sometime in the winter of 2007 or 2008 but no incident history was provided. In another statement the worker claimed that he tripped over the employer’s door casing and fell flat on his back hitting the ground and hand on the bottom of the door. The adjudicator notes that the worker claimed he completed the rest of his shift that day but did not report the incident to the employer or seek medical attention until the following day. He stated that his impairment increased over the next few weeks to the point that he could not walk. The adjudicator also notes that the Worker’s Report of Injury supports injuries to the lower back, right hip, right thigh, right knee, right lower leg and right ankle. It further notes that signed statements have been received from the individuals mentioned on the Worker’s Report of Injury including the employer’s wife and several coworkers. All have denied witnessing a workplace incident or having knowledge that the worker sustained a workplace injury. The CA observed the medical record including the diagnosis of DDD and spinal stenosis on the Health Professional’s First Report and notes that these postings are not compatible with the incident history involving an acute trauma. The decision maker advises the worker that there is insufficient evidence to establish proof of accident and accordingly entitlement to WSIB benefits is not in order.
The worker has objected to this decision and the issue is before the Appeals Branch.
AUTHORITY REFERENCE
Please refer to Operational Policy Manual Documents:
11-01-01 – Adjudicative Process
15-02-01 – Definition of an Accident
ASSESSMENT OF THE EVIDENCE
At the hearing the worker provided testimony under oath. He notes that as a café supervisor, he was required to open the café where he worked in the morning. He did this alone. He would open the cash float and prepare the café for business. He would also be responsible for preparing catering orders which involved the making of sandwiches and cold trays which he would assemble and package for delivery drivers to pick up and take to the appropriate addresses that he would have labelled on the packages. He would clean up after he completed these tasks. He managed the café and the five employees that worked there noting that the area specialized in serving sandwiches and salads for up to 40 clients. He stated that he worked the morning shift.
On a date some time in December 2007 which the worker could not recall specifically, he stated that as part of his duty he was required to shovel snow off the sidewalk in front of the café on the street. He stepped through the threshold and tripped slipping on it and coming down hard on his right hand. Two hours later he had pain in his lower back. He confirmed that there were no witnesses to this incident. However, he states that he told co-worker A about the incident and the developing pain when she arrived at work. He informed her that he would go to the doctor. However, he advised that he was unable to get in to see his doctor that day and therefore had to see him the next day. He stated that this was on December 14 or 15 which was a Tuesday or a Wednesday in his recollection.
He saw the doctor in his office at which time he reported the incident history of falling at work while shovelling snow and that he could hardly walk. He testified therefore the doctor arranged for a magnetic resonance imaging (MRI) scan. He said however that the MRI was not done for three or four weeks after that and that he had to see his doctor approximately two times in the interim. He said that the MRI was done at Princess Margaret and that he has the report but did not bring it to the hearing.
With respect to reporting, the worker states that he told the owner within two or three days of the incident as he was not normally around. At that time, the owner did not take his report seriously. Two or three days after that the worker indicated that he re‑approached the owner and insisted that he listen to his report of his injury. He said that he had fallen while shovelling snow and then told him that he had hurt his low back and that he had been to the family doctor. He was telling him this by way of explaining that this was why his performance had decreased. The worker testified that the owner’s response was that he should have reported the incident earlier to which the worker replied that the employer had not been around and that his family doctor had recommended that a claim with the WSIB be set up. At this juncture, the worker stated his employer told him that if he filed a claim with the WSIB, he would lose his job. He stated at one point that this all occurred within one week of the incident history but later in the hearing indicated that the owner’s threat to fire him did not occur until January 2008.
At this point, the worker had received forms to fill out from the WSIB on the basis of a telephone call he had made to the WSIB and that he intended to fill them out. At this point, the worker confirmed that he handed in his key and left the employment of the incident employer and has not returned.
With respect to the quality of the work the worker had been able to perform since the incident date, he states that he lost one day due to pain in the first week after he had had the injury and that co-worker B was contacted by him privately to cover for him. As a café supervisor he was able to work at a slower pace and had others do any heavy lifting for him and so no formal accommodations were made.
He stated that as of his leaving the employer in January 2008, he was never able to do any heavy lifting and that to this date he cannot lift more than 30 pounds. With respect to treatment, he notes that the doctor simply prescribed him Percocet and Baclofen. Physiotherapy was recommended but as the worker had no entitlement to WSIB and Ontario Health Insurance Plan (OHIP) did not cover it, he was unable to have this treatment. After the MRI in January 2008 the worker was referred to a Pain Clinic in Mississauga for “bone injections.” These occurred in February or March. He had ten injections over three visits and states that they did not work. Since then he has only been on the medications prescribed by his family doctor to alleviate his pain and he has applied for Social Services benefits. They have him referred for an Ontario Disability Support Program (ODSP) and the worker states consequently he has not done any work. He has neither sought work nor done any since he left the employer in January 2008. He states that he cannot sit or stand for long and so he cannot do much.
With respect to the discrepancies in some of the dates supplied between the worker’s testimony and those in documentary evidence on the claim file, the worker advises that he gets mixed up. With respect to his report of injury and the date of injury being in November 2007 while his testimony at the hearing was that it was in December 2007 he states that he just knew that it was before Christmas and before it got busy. The date with respect to the completion of the Worker’s Report of Injury in his testimony and the date it was apparently signed is due to his being mixed up because of being involved in catering and being physically not able to do things.
In assessing the worker’s entitlement, I note that the medical record clearly establishes a long history of DDD and spinal stenosis. With respect to an incident history in the employ of incident employer, there is no clear evidence even from the worker as to what date this occurred. His report of injury states it was in November 2007 yet his sworn testimony has it in December. The medical records even from the family doctor offer no support for an injury having occurred in November or December 2007. The chart entries that have been submitted to the claim file do note that when the worker was assessed on November 22, 2007 there was no report of any back pain or treatment of back pain. The chart entry of December 17, 2007 similarly makes no reference to any back pain. The worker was seen but for unrelated matters. On January 22, 2008 there was reference to the worker having back pain and associating this with his previous work as a cook with increased pain when standing. There is however no mention of any fall while shovelling snow.
The family doctor’s Health Professional’s Report for treatment administered on April 7, 2008 offers no evidence of a date of injury and simply notes that the worker has had chronic back pain due to spinal stenosis but that it had been getting worse since at least February 2008. No cause of impairment is cited. This is especially striking since the worker’s sworn testimony was that when he told his family doctor of his injury when he was seen in December 2007, it was the worker’s submission that the family doctor had recommended that the worker make a claim for WSIB benefits. This is simply not borne out in the medical record.
When all of the evidence is assessed, the inconsistencies with respect to the dates cited for seminal events including the date of injury and the date of treatment are contradictory or left unspecified. The incident history provided by the worker in his statements has not been corroborated anywhere else and even the worker’s own incident report makes no mention of a fall when shovelling snow.
Consequently, on the basis of the evidence before me, I am unable to establish that proof of accident has been documented and I am therefore unable to extend entitlement to WSIB benefits.
CONCLUSION
There is no entitlement to an injury arising out of and in the course of the employment under this claim.
The worker’s objection is denied.
DATED June 23, 2009
B. J. Martlin Appeals Resolution Officer Appeals Branch