WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090047
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: April 08, 2009
ATTENDEES: Worker, Worker Representative, Employer
ISSUE
The issue in dispute is proof of accident.
HOW THE ISSUE ARISES
This claim was established on the basis of an Employer’s Report of Injury/Disease (Form 7) which advised that on June 16, 2008 the 48 year old courier driver reported having sustained a right knee injury over a period of time.
In adjudicating the claim, the claims adjudicator received a Worker’s Report of Injury/Disease (Form 6) which also confirmed a right knee injury that was reported on June 17, 2008 due to the need to bend and lift parcels in the course of his employment.
A Health Professional’s First Report confirmed that on June 16, 2008 the worker received treatment and advised that he had sustained an injury in May 2008. The incident history noted that the worker had returned to work after a prolonged period off work for a non‑work‑related disability and that he noticed pain and swelling in his right knee due to bending and lifting of parcels. The diagnosis of strain or sprain of the right knee was posted. No other medical evidence was submitted to the claim file.
The claims adjudicator interviewed the worker on June 26, 2008 as per memo 2 and noted that the worker confirmed that there was no trauma associated with the development of the pain and swelling of his right knee. He has been off work for a non-compensable condition from December 2007 to May 2008 and that it was the doctor that related the worker’s knee problems to a sudden return to activity after a period of inactivity. There was a gradual onset of the condition in the two week period prior to June 26, 2008.
In the decision letter of June 26, 2008, the claims adjudicator noted the worker’s job description and the details of onset as per the worker’s statement and the doctor’s report but found that there was insufficient compatibility between the diagnosis and the job description to garner entitlement.
Accordingly, entitlement was denied.
The worker has objected to the decision and the issue is before the Appeals Branch.
AUTHORITY REFERENCE
Please refer to Operational Policy Document:
15-02-01 – Definition of an Accident.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
At the hearing, the worker provided testimony under oath. His representative indicated that it was the worker’s return to employment as a delivery driver following a period of inactivity that resulted in his impairment. The representative believes that the job description is compatible with the diagnosis provided given the period of inactivity.
The employer acknowledged the worker had been off for a period of time due to a non‑work‑related condition but felt that there was insufficient evidence that the worker’s knee condition was related to his employment.
The worker testified that he commenced employment with the employer as a delivery driver in April 2006. He further confirmed that previous employment had been essentially the same job throughout his adult life. In the course of his employment the worker would be required to make 40 deliveries per shift with heavy lifts being required in the range of 50 pounds. He stated that he would be in and out of the truck 40 times per day and that he would be required to transport packages up and down stairs as required. She testified that access and egress of the driver’s cab was three feet high and of the rear tailgate two feet. Though the shift was normally eight hours, it was accepted that a worker would be required to deliver all of the packages that were in his truck and that this would commonly require nine to ten hours per day. He noted that the employer’s busy period is at Christmas and at the end of the school year and that when he experienced the onset of right knee pain, there should have been an increase in activity while with the employer. However, in his testimony the worker clearly indicated that there was no increase in the employer’s business in May 2008.
With respect to the activities the worker was involved in prior to his return to work (RTW) in May 2008, he stated that he would do nothing at all except look after the surgical site for his non‑compensable condition. He stated that after a couple of weeks of post‑surgery rest, his doctor advised that he start walking and that this should be gradually increased as he was able. Most of the time he spent lying down and resting. He testified that he had no injuries to his knee prior to his RTW. He was involved in no sports and had no motor vehicle accidents (MVA) and when he returned to work in May 2008 it was to full duties with no restrictions.
A couple of weeks after he returned to work, he first noticed some swelling in his right knee. This became evident when he had to climb stairs. It worsened with lifting and it was aggravated each time he was required to go up or down stairs. He went to the doctor in June as by this time the condition was clearly worsening.
He stated that his problems were the worst in the morning when he was getting out of bed. It was his doctor that related the effusion and strain to the unaccustomed activity that he had begun in May 2008 and he prescribed rest until he saw a specialist. Celebrex was also prescribed and the worker stated that this helped him somewhat.
On June 17, 2008 he reported his right knee condition to his employer and he was put on suitable work loading skids of returns of toner at the end of the shift. He would be required to unload the light cargo that his coworkers would return with at the end of their deliveries. He also did some cleaning of the loading dock sweeping, picking up garbage and was given breaks as needed. He also shunted some trucks to their night time positions if their drivers had not done so. He states that on June 17, 2008 he was given his notice of an impending layoff. He denied that his suitable work caused him any problems and also noted that his knee felt better after weekends. When his layoff approached, the suitable work was withdrawn.
He states he was seen by his specialist and surgery was recommended yet this treatment has not yet occurred. The specialist has simply recommended rest, elevation and ice.
Following his layoff, the worker obtained another delivery driver job for another company doing the same work as he needed to pay his bills. The new job started on July 18, 2008.
The worker advised that he delayed reporting his injury until June 2008 despite the onset in May 2008 because there was no specific trauma or incident that he could associate as an accident. It was not until his family doctor related it to the increase in activity when he returned to work that a claim was felt tenable. He states that his family doctor did not provide him with physiotherapy but simply referred him to the Specialist, Dr. Luba who he saw in September 2008.
With respect to the notice of layoff, the worker testified that he did not recall seeing any notice of it at the Distribution Centre on June 16, 2008 when he decided that he needed medical care. He states that it was not until June 17, 2008 that the notice was provided to him. He did confirm that there was some talk of a layoff before June 17, 2008 but he maintained that he did not recall seeing anything definite about this. He also confirmed that he had insufficient seniority to bump anyone else to maintain his job.
During his recovery from his non-compensable condition, he provided his surgeon with a Physical Demands Analysis (PDA) of his pre-injury employment. The surgeon having this at hand authorized his RTW without restrictions in May or June 2008. He was only to work eight hours a day and the worker stated that given the slowness of the business at that time, this was easy to do.
Following his assessment by Dr. Luba in September 2008, surgery was scheduled for November 2008 but the worker cancelled this because he needed to work and could not afford to be off at all. Consequently, he has had no surgical treatment of the injury. Again he confirmed that his swelling and discomfort was worse in the morning. He could not recall what he was doing when he experienced the first onset of problems and indicated that it may have been at work. He noted that his discomfort was only apparent when at work and when his activity level increased. He was unable to recall any detail really about the onset of his condition. He did confirm that coworkers Victor and Jerry both drivers were made aware that his knees were hurting and swelling but he mentioned no cause to them. He worked alone mostly but may have had a coworker on one or two days in May or June 2008.
Following the conclusion of the worker’s testimony, it was observed by me that Dr. Luba’s report of September 2008 was curiously absent from the medical records submitted to the claim file. The worker representative acknowledged this shortcoming and it was determined that a fair decision could not be rendered without making an enquiry to obtain this report. Consequently, the worker representative was charged with the responsibility of obtaining this report and circulating it to the workplace parties. Dr. Luba’s report has since been received along with the final written submissions of the parties.
The worker’s representative repeats the argument that during his layoff of several months while recuperating from non-compensable surgery, he had become de-conditioned and vulnerable to injury upon returning to strenuous work. He also acknowledges the gradual onset of the claimed condition and the absence of any specifically identified cause for the knee impairment. It is again noted that it was the worker’s doctor’s offered opinion that the knee condition was the result of an unaccustomed strain associated with the worker’s return to his job as a courier.
In reviewing these arguments I also note that no similar impairment is claimed to have occurred when the worker took on courier work initially. He admits to having been involved in this kind of activity throughout his adult life. This would seem to have provided him with ample experience to be able to recognize the physical risks inherent in the job to be able to avoid or accommodate them. I also note that the worker testified the work load he had at the time of the claimed injury was inordinately light for this employer. It would seem from the evidence the worker was not exposed to any inordinately heavy duty. His delay in reporting and seeking medical attention also militated against the employment as being the cause of the condition. The worker testified he did not associate the work with the impairment for several weeks, until his doctor suggested a connection. I find this failure to relate a physical impairment to the physical activity being suggested as its cause at the time the activity is engaged strains credulity. It is unreasonable not to associate a pain that arises during exercise, to that exercise.
There is insufficient evidence that the worker’s impairment arose out of and in the course of his employment to admit its entitlement under the Workplace Safety and Insurance Act.
CONCLUSION
There is no entitlement to benefits.
The worker’s objection is denied.
DATED June 4, 2009
B. J. Martlin
Appeals Resolution Officer
Appeals Branch