Worker v. Employer, 2009 CanLII 75651

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20090053

OBJECTION BY: Employer

WORKER:

EMPLOYER:

EMPLOYER REPRESENTATIVE:

ISSUE

The employer objects to the initial allowance of this claim for an accident of April 20, 2007 based on insufficient proof of accident.

HOW THE ISSUE AROSE

This construction worker, who was 27 years of age at the time, injured his back on April 20, 2007 when moving and lifting steel joists weighing between 75 and 200 pounds. The worker reported the injury to his supervisor on April 26, 2007. The first date of medical attention sought by the worker was April 30, 2007 and the diagnosis was lumbar strain. The Employer’s Report of Injury/Disease (Form 7) was submitted on May 3, 2007. Attached to the Form 7 is the employer’s Accident/Incident Report Form along with a handwritten note of the supervisor’s statement. This statement provides the worker’s account of the accident history and date of medical attention sought.

On May 24, 2007 the worker called his adjudicator and stated that he injured his back on April 20, 2007 while lifting 200 pound steel joists when his co-worker had left for a while. He said he attempted to lift it by himself and this is when he injured his back. He further explained that he tried to work through the pain while doing his regular work until April 26, 2007. He stated that he did not tell his supervisor of the injury until April 26, 2007.

As the medical report of April 30, 2007 was on record providing a diagnosis that was compatible with the accident history and noting the worker provided the same accident history as was given to his employer, the adjudicator accepted the worker’s statement and allowed the claim on May 24, 2007.

The employer was dissatisfied with the acceptance of the initial entitlement as there was a gap of time between the date of accident and date of reporting to the employer, along with a delay in seeking medical attention. On September 7, 2007 the adjudicator referred the claim for field inquiries through a WSIB investigator.

After reviewing the further information, the adjudicator determined that proof of accident was established and confirmed the initial allowance. This was communicated to the employer in a letter dated November 8, 2007.

In a letter dated November 20, 2007 the employer’s representative objected to the initial entitlement and requested access to the claim file information. The employer’s Objection Form dated January 7, 2008 indicated that they object to the initial allowance based on insufficient proof of accident.

AUTHORITY

Operational Policy Documents:

11-01-01 Adjudicative Process

11-01-03 Merits and Justice

15-02-01 Definition of an Accident

RESOLUTION METHOD AND PROCESS

To resolve the issue in dispute a verbal hearing was originally scheduled for May 25, 2009. All of the workplace parties including the worker and his representative were in agreement with the hearing date.

On May 22, 2009, the worker’s representative advised the WSIB Hearings Administrator that they were no longer representing the worker. The hearing was then cancelled.

I attempted to reach the worker through a variety of methods, including written correspondence dated July 9, 2009, to reschedule the hearing. To date I have not been able to contact the worker.

As attempts to reach the worker since May 22, 2009 have failed, the employer has opted for a decision without a hearing. The decision in this case is made with the information available on record and includes the employer representative’s submission of August 28, 2009.

Since we do not have a forwarding address for the worker, a copy of this decision will be made available to him when he advises the WSIB of his current address.

ASSESSMENT OF THE EVIDENCE

In assessing the evidence I have considered all of the information in the claim file and in particular the information under the following categories:

1. Operational policy
2. Worker’s statements on record
3. Medical information on record
4. The investigation record
5. The employer representative’s arguments

1. Operational Policies:

11-01-01 Adjudicative Process

This policy states, in part, “All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system." “An allowable claim must have the following five points:

• an employer
• a worker
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history

Decision-makers may consider the following when examining proof of accident,

• Does an accident or disablement situation exist?
• Are there any witnesses?
• Are there discrepancies in the date of accident and the date the worker stopped working?
• Was there any delay in the onset of symptoms or in seeking health care attention?”

11-01-03 Merits and Justice This policy states, in part, “ Every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account all facts and circumstances relating to the case, the relevant WSIB policy or policies, and the relevant provision or provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act).”

15-02-01 Definition of an Accident

This policy states, in part, “Accident includes: a willful and intentional act, not being the act of the worker, a chance event occasioned by a physical or natural cause, and a disablement arising out of and in the course of employment.”

2. Worker’s statements on record

May 11, 2005- Worker’s Report of Injury/Disease (Form 6):

In this report the worker indicated that he had an accident on April 20, 2007, in the afternoon. The worker injured his low back and reported to his supervisor on April 26. 2007. He also wrote, “I did not report the injury right away because I thought it was just a sprain. It was a week of working like this that I decided to see a doctor.”

May 24, 2007- Memorandum 4 (in part):

The adjudicator noted that the worker stated that he was lifting 200 pound joists with another co-worker on April 20, 2007, when the co-worker left for a while, the worker injured himself when attempting to lift a steel joist by himself. He said that he tried to work through the pain while performing his regular work.

June 6, 2007- Worker’s letter to adjudicator (in part):

“On April 20^th I was sorting floor joists to go on the building…On this day I hurt my back lifting a floor joist. It wasn’t till April 26^th when the injury was at the point where I could not move side to side or sit. I left work at 2pm that day because I was in too much pain. That week-end I stayed in bed and thought it was getting better, but I was always in pain. I went to the doctor on April 30^th and he told me not to do any hard labour…”

3. Medical information on record

April 30, 2007- Health Professional’s Report (Form 8)

The doctor reports that the worker stated he was lifting objects last Thursday (April 26, 2007) at work and felt pain in his upper and lower back. On examination the doctor found swelling and tenderness of the low back. The doctor provided the diagnosis of lumbar strain and recommended rest, ice and medication.

4. Investigation record

Worker’s statement:

The investigator interviewed the worker on October 2, 2007. The worker stated that on April 20, 2007 he was working at an apartment complex in Woodstock, Ontario. He was doing ground level work involving sorting through bundles of steel joists in lengths of 8 to 25 feet and weighing 75 to 200 pounds which were dropped in place by a crane. His job was to sort the steel joists by order of floor and location. He said he was working with a co-worker to lift the joists. He stated that in the afternoon of April 20, 2007, he believed he lifted one particular 25 foot steel joist and felt pain in his lower back. He did not recall telling his co-worker because it was late on a Friday afternoon and he felt it was a strain that would resolve.

He stated that he was inactive over the week end and his pain persisted. He returned to work on Monday April 22, 2007 doing his regular work of pushing and pulling forms and he found that bending forward and twisting/turning was becoming difficult. The worker stated that he complained to two co-workers and reported the injury to his supervisor on April 26, 2007.

Witness statement:

One co-worker confirmed that the worker came to him and told him that his back was hurting. The worker told him that it may have been from lifting something at work the day before. This co-worker also stated that the following week he heard that the worker reported an injury to his back. He heard that the worker reported that he injured himself the previous week.

The other co-worker was not aware of an accident.

Supervisor’s statement:

The supervisor confirmed that the worker was moving joists as part of his job. He also confirmed the length and weight of the steel joists and that the movement of the joist is a two-man manual job. He also confirmed that the worker told him that he injured his back a week before he reported the injury.

5. The employer representative’s arguments

The following summarizes the employer representative’s arguments as provided in their correspondence of August 28, 2009. This letter captures the information in their previous communications arguing against initial allowance:

• There is no witnesses to an injury occurring on April 20, 2007,
• The worker’s version of the accident history was not consistent: It was described as a specific lift of a steel joist and as a gradual onset,
• There is a delay between the reported date of accident- April 20, 2007 and the date reported to the employer, April 26, 2007,
• The worker worked his regular work for a week without any mention of an injury before April 26, 2007,
• The Form 6 did not provide an accident history,
• It is not reasonable to accept that the worker would have lifted a 200 pound steel joist noting he was an experienced construction worker,
• The Form 8 dated April 30, 2007 provides an accident date of April 26, 2007,
• The worker evidently advised his employer on April 26, 2007 that he was leaving early to seek medical attention. The worker did not seek medical attention until April 30, 2007,
• During the investigation of October 2007, the worker told the investigator that the area of injury was the thoracic spine,
• The worker could have sought medical attention earlier noting that an appointment is not required for a medical walk in clinic operating seven days a week.
• The Patient Encounter Worksheet dated June 9, 2007 indicates that the worker injured himself 2 months ago,
• The area of injury was initially lumbar spine and then changed to thoracic spine- which contradicts what the worker claimed initially.

The representative has provided the following information found on page four of their August 28, 2009 correspondence and have asked that it be provided weight as evidence in this matter.

“A co-worker told the employer the worker had complained to him that he was tired and sore because he was working in his friend’s restaurant. Apparently, Mr. __ (the worker) had a financial interest in the restaurant and was assisting with some renovations. The worker acknowledged the financial interest, but denied working in the restaurant. This contradicts the third-party comments from the co-worker, but certainly merits putting questions to the worker.”

ANALYSIS

In this case, the establishment of whether there is evidence that supports that the worker had a work-injury on April 20, 2007 is in question. As the worker is not available for a hearing, a determination must be made using the facts and the related information on record. For this reason I have examined all of the information, from all the parties, keeping in mind that the statements/written information have not been obtained under oath and I have given equal weight to all of the presenting information.

The facts, on record, of this case are:

1. The worker was moving and lifting steel joist weighing between 75 to 200 pounds on Friday April 20, 2007.
2. The worker continued to do his regular work between Monday April 23, 2007 and Thursday April 26, 2007.
3. The worker informed his supervisor on Thursday April 26, 2007 that he had injured himself the on Friday April 20, 2007 through a movement while conducting his regular work.
4. The worker first sought medical attention for the personal injury on Monday April 30, 2007.
5. The worker advised the doctor that he injured his upper and lower back at work while lifting steel joists.
6. The doctor diagnosed a lumbar strain.
7. The worker was off work on April 30, 2007, May 1, 2007 and May 2, 2007,
8. The worker visited the worksite on May 2, 2007 and gave his supervisor a ‘WSIB form”.
9. The worker returned to modified duties on May 3, 2007.

The employer is concerned about the initial allowance of the claim because there was a delay in reporting the injury and a delay in seeking medical attention. Although the employer indicated in a submission attached to the Form 7 of May 3, 2007 that the worker delayed in reporting the accident and seeking medical attention, they did not indicate that proof of accident was an issue in dispute until July 4, 2007. Their representative has provided the reasons for their dispute and these are summarized above in the previous paragraphs.

In operational policy document 11-01-01 (Adjudicative Process) it states, “Decision-makers may consider the following when examining proof of accident,

• Does an accident or disablement situation exist?
• Are there any witnesses?
• Are there discrepancies in the date of accident and the date the worker stopped working?
• Was there any delay in the onset of symptoms or in seeking health care attention?”

In considering the policy criteria and the circumstances of this case, I find the following information lends support for proof of the worker’s personal injury occurring in the course of his employment on April 20, 2007.

On April 26, 2007 the worker advised his employer that he injured his back after lifting and moving steel joists on April 20, 2007. This is the same accident history he provided to the doctor on April 30, 2007. On May 24, 2007 he told his adjudicator that he hurt his back lifting a steel joist and in his correspondence of June 6, 2007 he advised that he was sorting steel joists and hurt his back when he lifted a steel joist. Although, the statements appear to be slightly different, together they make up an accident history that is compatible with the diagnosis of lumbar strain and can be reasonably related to the described onset: occurred immediately and gradually getting worse over time as regular work was being performed. The information provided by all of the parties supports that the worker had a “small amount” of pain on April 20, 2007 and that it gradually got worst. The worker stated that he felt sore in the afternoon of April 20, 2007 and did not say anything that afternoon as it was Friday afternoon and thought it would get better after resting.

I find the worker’s statement that he did not report the injury because it was late on a Friday afternoon and he felt it was a strain that would resolve, is a reasonable explanation for delay in advising his employer of an injury on April 20, 2007. Added to this explanation is that the worker also stated that the pain got worse while performing his regular work over the following week.

In a witness statement, a co-worker stated that the worker told him he may have injured his back while lifting something at work. The witness also stated that he was aware that the worker reported the injury a week after telling him of the injury. This statement confirms that a co-worker was advised by the worker that he had injured himself at work before the worker reported it to his employer. This information is in keeping with the worker’s statements and the employer’s reporting of the injury on the Form 7.

The employer confirmed that the type of work being performed by the worker on April 20, 2007 was a two-man job when lifting the 24 foot joists and a one man job when moving/lifting the shorter elevator joists.

The medical diagnosis of lumbar strain provided on April 30, 2007 is compatible with the mechanics of the work the worker was doing both on April 20, 2007 and is compatible with the onset the worker has claimed: small pain in April 20, 2007 and gradually getting worse up to April 26, 2007 from doing regular work during that period of time. The doctor noted that the worker said it occurred “last Thursday” being April 26, 2007. There could have been a misunderstanding of the date the pain started as opposed to the date it got worse and reported to the employer. It is not uncommon occurrence for dates to be mixed up when considering the circumstances of this case and in light of the fact that there is no doubt that the worker was working on Thursday April 26, 2007 and that he reported his personal injury to his employer on that date, that there was a mix up of dates.

Of note, is that the employer did not dispute the worker’s statement that his co-worker left him alone on the afternoon of Friday April 20, 2007. I did not find any information on record confirming that the employer asked the co-worker if he had left the worker alone on the afternoon of April 20, 2007. When the investigation was conducted in October 2007, the individual who was working with the worker on April 20, 2007 was not available for questioning because this individual was no longer an employee of the employer. Based on this information, I accept that the worker was probably alone on the afternoon of Friday April 20, 2007.

The employer confirmed that the worker was doing his regular work between Monday April 23, 2007 and Thursday April 26, 2007. The employer did not state that the worker had a back injury before April 20, 2007. The employer did not state that the worker may have injured himself before work on April 26, 2007. The employer did not dispute that the worker had a back injury on April 26, 2007.

The employer’s allegation that the worker advised a co-worker,” He was tired and sore from working a friend’s restaurant” cannot be considered as a fact. The two main reasons are: according to the information provided in the same letter, the worker denied that this was true and the secondly, the allegation was not brought forward during the field investigation of October 2007, nor is there any related context of date and time of this conversation to link it to an accident date of April 20, 2007. Based on this, there is no evidence that supports that worker injured his back outside of work.

With respect to the question of why the worker advised the employer that he was leaving work early to seek medical attention on April 26, 2007 but delayed until April 30, 2007, the worker stated that he went home and did not see a doctor because he thought the strain would resolve after resting over the week-end.

The employer confirms that on April 26, 2007 this worker reported an injury to his supervisor. The worker advised the employer that he injured his back while moving and lifting steel joists on April 20, 2007. The employer noted that the worker stated that he felt a small pain on April 20, 2007 and continued working but did not tell anyone of the injury on April 20, 2007. The worker advised them that he was leaving work early on April 26, 2007 to seek medical attention. The employer did not submit the form 7 on that date. The employer submitted a Form 7 on May 3, 2007 after the worker visited the work-place on May 2, 2007 and gave them a “WSIB form”. The employer’s explanation as to why a Form 7 was not completed on April 26, 2007 when the worker reported the injury was because they were uncertain if the worker were going to make a WSIB claim. In fact, the employer stated that initially the worker was not going to report the injury to the WSIB. This appears to be the case, as the record shows that worker did not advise the employer that he wished the incident to be reported to the WSIB until May 2, 2007, after he sought medical attention.

Based on the above, I find that the worker’s statements are reasonable and I accept the worker’s statement that he injured his back while lifting and moving steel joists on April 20, 2007 and from moving and lifting steel joists from April 23, 2007 to April 26, 2007. I also accept his explanation for the delay in seeking medical attention. It is not unreasonable to conclude, as the worker did, that with rest, a physical condition could get better. This is especially true if the condition is not serious. In this case, the condition was not serious noting the worker returned to modified duties on Friday May 3, 2007.

I note in the investigation record, the worker is quoted, several months after the injury, as having said that the original injury was to the thoracic spine. The worker’s statements to the investigator that follow discuss the original injury as the low back. I accept that the worker may have contradicted himself or been confused because at the time of the investigation the worker was being treated for a thoracic spine condition.

The Form 8 dated April 30, 2007 indicates that the worker advised the doctor that he injured his upper and lower back while lifting at work. The doctor provided the diagnosis of lumbar strain. It is unclear if the thoracic spine was examined as there are no physical findings related to a thoracic spine and a diagnosis was not provided. Although, the mechanics of moving and lifting steel joists from the ground up may lend themselves to a thoracic spine injury, there is no evidence available to me of a thoracic spine injury on April 20, 2007. When looking at the initial entitlement only, with the information available to me, I have concluded that there is no evidence of a thoracic back injury on April 20, 2007.

In conclusion, I have accepted the worker’s explanations for the delay in reporting of the injury of April 20, 2007 until April 27, 2007 and the delay in seeking medical attention for the low back injury caused by the disablement type of accident occurring at work on April 20, 2007 and gradually getting worse while performing regular work from April 23, 2007 to April 26, 2007. I conclude that the worker has established proof of accident.

CONCLUSION

The employer’s objection is denied.

DATED November 16, 2009

G. Matthew

Appeals Resolution Officer

Appeals Branch