WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20090065
OBJECTION BY: Worker
EEMPLOYER PARTICIPATING YES
REPRESENTATIVES Worker Representative
HEARING DATE: September 28, 2009
ATTENDEES: Worker, Worker Representative, Employer, Witness
ISSUE
The worker representative is objecting to the denial of initial entitlement.
HOW THE ISSUE ARISES
The worker presented at the Sudbury District Office of WSIB on June 8, 2007 with the purpose of establishing a claim file for his low back. The worker was interviewed by an Adjudicator, who then initiated a claim file for the worker, based on the information that had been provided by the worker during the interview on that date.
The worker reported at the time of the initial interview, that he was relating the onset of low back symptoms to his work duties. He advised the Adjudicator that he switched from the position of a foreman, to loading quarries. He described this job as drilling holes for blasting and then he would feed a hose down the drilled hole. A blasting liquid which is called emulsion is then pumped through this hose, in order to fill the drill holes and then as the drill holes begin to fill up with emulsion, the worker then pulls up on the hose to remove it. The worker reported that not long after switching to this position, his back pain increased.
The claim file was listed for a claims investigation to gather the information necessary in order to render a decision on initial entitlement. After reviewing the contents of the claims investigation, the Adjudicator obtained further information from the employer. The Adjudicator determined proof of accident had not been established and denied initial entitlement in this case.
According to the record, the worker was verbally advised of the decision to deny initial entitlement on March 18, 2008 and the actual decision letter to the worker is dated
June 18, 2008.
The worker objected to the denial of initial entitlement with a letter dated July 9, 2008 and provided authorization for a copy of the file and objection form to be sent to his representative. A letter was then provided by the worker representative dated January 26, 2009 that contained additional information that was not already on record and the completed objection form. The Adjudicator reconsidered the decision of June 18, 2008 and upheld the denial of initial entitlement and communicated this decision with a letter dated May 29, 2009 and referred the case to the Appeals Branch and this matter is now before me.
AUTHORITY
11-01-01 – Adjudicative Process
15-02-01 – Definition of an Accident
ASSESSMENT OF THE EVIDENCE
I have reviewed the record, considered the evidence and the testimony provided.
For record purposes the worker representative noted the employer was unrepresented and requested I explain the hearing process prior to commencement of the hearing and this was done. The employer was also afforded the opportunity to ask for clarification on the process, during the proceedings.
Testimony
The worker confirmed he was brought to the hospital by his employer on June 27, 2001 due to back pain. The worker does not recall exactly how he hurt his back. The worker said that it felt like he had pulled something in his back but it wasn’t so much the back as it was the spasms he was experiencing in the left leg. The worker said that he was new to the company and did not want to report the injury as being work related.
The medical report received on record from the hospital, based on the emergency visit of
June 27, 2001 indicates that it was WSIB. The worker reported low back pain radiating down the left leg and that the pain was relieved or reduced by lying flat and raising the left leg. The diagnosis provided was nerve root impingement and there was no accident history provided on this medical document, despite WSIB having been identified by the hospital on the medical report.
The worker testified that it was suggested to him by the employer that he go for chiropractic treatment and that the employer would cover the cost of the treatment. The worker stated in his testimony that in his opinion, the chiropractor and the employer were friends and that the chiropractor had written that he had left leg pain. The employer in cross questioning referenced the report from the chiropractor’s office dated June 28, 2001.
It is noteworthy that the form being referenced by the employer was a form completed by the worker for the chiropractor’s office and this form is dated June 28, 2001. The worker confirmed after reviewing this report that it was in fact his own hand writing in answer to question #1, where it had been written, the major reason or discomfort was “lower back pain and aching down left leg”.
This is relevant in that the worker suggested that the employer and the chiropractor were friends in his testimony and that it was the chiropractor who had included “aching left leg” on this form when it actual fact, it was the worker himself who had authored this document. In my opinion, this satisfies for the record that the worker had problems with the low back and left leg for approximately 5 years prior to the surgery of December 1, 2006 of his own admission.
It has also been clarified in my opinion, through the worker’s testimony that he could not identify what he was doing at the time the low back and left leg were injured on June 27, 2001. The worker had the opportunity to report an injury to the employer when he was being driven to the hospital by the employer, yet the worker stated he did not report an injury at that time.
The record reveals the worker returned to see the chiropractor on July 7, 14, 21, 2001,
August 25, 2001, May 30, 2002 and October 29, 2002. At the visit on January 11, 2006, the chiropractor wrote “hurt back at work” and the worker when asked, could not recall how he had hurt his back at that time but speculated it was likely due to the emulsion truck. Further visits were on January 12, 2006, March 7, 9, 11, 2006.
The worker testified that he did not injure his low back at the Ear Falls site in August 2006 while operating his motorcycle. The worker stated he was driving his motorcycle off duty and he was travelling in first gear, when he was cut off by another person. He stated he dropped the bike and a bolt on the handle bar of the motorcycle caused a laceration to his right knee.
The worker said that he went on his own accord to the hospital in Red Lake for medical attention, but that the wait time was 2 - 3 hours. A nurse at the hospital told the worker to purchase something to flush the wound and the worker did just that and returned to the Ear Falls job site. The worker stated a person on site who had first aid assisted him with cleaning and bandaging the wound. The worker denied having sustained an injury to the low back at the time he sustained an injury to the right knee.
The record reveals the worker had provided information regarding this matter, similar to his testimony. The employer has provided a signed statement on record dated June 3, 2008 indicating the worker had told him when he had arrived at the Ear Falls Hydro Project, that he had been “thrown off his motorized bike and hurt his back”. The employer also wrote that the worker had told him he had “hit the ground hard enough to stun himself”.
The employer also wrote in the same letter that he asked the worker if he was able to continue with his duties as a foreman and the worker said that he was and that the worker was told by the employer not to pick up anything heavy. The employer was able to provide the date he arrived at the Ear Falls Hydro Project as August 21, 2006 and he was met by the worker. The employer was able to provide the exact date because he kept a log. The employer further adds that he told the worker he would be taken care of if he needed more help.
The worker testified that he was in Garden River at the job site,which was at a quarry, in order to fill drill holes with emulsion in or around October 2006. The worker does not recall the exact date he was at this job site, but states he was only at this job site for one day. When he arrived at the job site, he noted that there was loose rock on the surface, the drill holes were 4” in diameter and the holes were on what he described as a steep incline. The worker was responsible for filling the drill holes with emulsion and this was done by pumping the emulsion through a hose that is 2” in diameter.
The worker testified that the difficulty with the size of the drill hole and the loose rock on the surface, as well as the incline, was the fact that loose rock from the surface would fall into the drill hole and he would encounter difficulties when pulling the hose up as the drill hole was being filled with the emulsion being pumped from the emulsion truck. The worker testified there were approximately 300 drill holes, where the witness who was operating the emulsion truck testified that there were approximately 150 – 200 drill holes, from shallow holes to deep holes as he had a full load.
The witness testified the worker did not have a helper on this date and therefore, the worker was filling the holes with emulsion and moving the hose around on his own. For the record, both the worker and the witness testified that the emulsion truck operator and the person filling the holes with emulsion are in contact, using hand signals to communicate. The worker also testified that if the hose was jammed in the hole and he was not able to pull it out, he would signal to the emulsion truck operator to stop the pumping. The hose would then be cut and the worker would move on to the next hole. The hose had to be flushed before the emulsion truck operator could begin pumping emulsion through the hose once again.
The witness did confirm seeing the worker towards the end of the job with approximately 9 or 10 drill holes left to go and the worker was having difficulty pulling up the hose. The witness got up out of the chair and demonstrated for me what he saw when the worker pulled up on the hose at that point. The witness saw the worker pull on the hose, “gave it a yank” and his legs buckled. When the hose didn’t come up, the worker dropped the hose and signalled to the witness to stop pumping and blow out the hose.
I asked the witness specifically if the worker told him how hurt his back and he said “no”. The witness stated he saw the worker drop the hose, the worker then signalled for the line to be blown out and the witness then saw the worker walk around. The worker then went and sat in a company vehicle and the witness said the foreman from the other job site came around and it was this foreman that finished the job on that date. Of note is that the worker initially reported on record, that he did not know that the foreman had finished the job that day.
The Adjudicator spoke directly with the foreman, whom the worker and the witness say completed the job on that date at Garden River and this foreman could not recall finishing this job yet the witness, in his testimony, said that he had seen this same foreman at another job site subsequent to the Garden River project and it was this same foreman who had reminded the witness about having to finish that particular job.
The worker testified when asked, that he probably did not walk down to the emulsion truck to tell the witness he had hurt his back, but the witness would have known something was up because he had probably seen him struggling with the hose and had maybe seen him kick a few stones. The worker said he then went to sit in the truck because he was in more agony than other times and that he just wanted to go home.
The worker was asked if he had ever asked the accident employer about the Workplace Safety and Insurance Board (WSIB). The worker stated that he had thought he had received papers from the WSIB however, as it turns out, the worker testified that the papers were not from the WSIB, but rather documents he believes had been obtained from the hospital. The record shows that the worker reported to the Adjudicator that he asked the employer to fill out forms from WSIB and that he was told to rip them up.
The worker stated that he did talk to the employer about filling out forms for WSIB and was told that he would be taken care of and that he was also told to disregard the WSIB papers. The evidence on record reveals that the worker was never provided with any forms from WSIB to be completed by the employer in November 2006 or after this date as the worker did not initiate this claim file until June 8, 2007.
The worker was asked if he had reported any problems with his low back to the foreman on site at the Garden River project when his back symptoms began. The worker said that he did not report his back problems to the foreman on that job site but said he did tell the foreman that the quarry was a jackpot when he first saw the job site. The worker testified that it was the most difficult job that he had done because the hose kept getting stuck in the hole.
The worker does not recall the exact date of injury, but believes it was a Friday and that he did report to work on the Monday. I asked the worker about left foot pain that he testified began at the Macteer Project, which was subsequent to the Garden River project by approximately two weeks, in the worker’s estimation. The worker stated that the left foot pain became more apparent then and at one point he was no longer able to use the left foot in terms of mobility.
The worker said he did talk to the employer prior to the date of surgery and advised that he was going off for a herniated disc. The worker stated during his testimony that he was advised by the employer that they would take care of him. I asked the worker to define in his terms what “take care of him” meant to him and he said continued employment, continued pay and it was Christmas time and he did not want to be without money. The worker thought he would recover from his back surgery and that he enjoyed his job with the employer and he enjoyed the type of work that he did and he also said that he was afraid.
The worker testified that he returned to work after his surgery and was sent to British Columbia by the employer and when he returned from this job, he took 3 weeks off without pay. After that period, he was called into the office by the employer and he was terminated for reasons unrelated to the matter before me.
The worker representative, in the closing argument, stated that proof of accident has been established. A specific accident had been identified and that a co-worker has confirmed the accident history and the injury at that time and that the CT Scan of November 20, 2006 confirms an acutely herniated disc. The worker representative refers to the report from the specialist dated November 24, 2006 where the worker confirms pain on and off for 4 years and that the worker had a marked aggravation a week prior.
The employer feels that proof of accident has not been established and that this claim file has undergone an exhaustive analysis. The employer stated they did assist the worker with paying for all or part of his chiropractic treatment. Following the completion of the project in Garden River, the worker did report to work on the following Monday. After the surgery, the worker did return to work with the employer until he was laid off in March 2007.
Analysis
The record reveals that the worker had problems with the low back and left leg as far back as June 2001, yet he reported during the claims investigation that the onset of low back symptoms began in approximately 2004. Although the worker did not recall experiencing any real problems with his back until 2004, he had a visit to a hospital and sporadic visits with the chiropractor as described.
When this claim was initially established, the worker was relating the onset of low back symptoms,to the work in general with the employer. The worker advised the claims investigator that he did not recall a specific injury other than using the 2” rubber hose.
A review of the medical evidence on record does not reveal the reporting of any accident history to any of the treating physician’s. The worker did go to see the family doctor on
November 10, 2006 and there was complaint of overwhelming pain bilaterally at L5 that radiated down into the buttock. The doctor ordered an x-ray of the lumbar spine on that date and the
x-ray report of November 10, 2006 revealed that there was degenerative disc disease present at L4-5 and at L5-S1.
The emergency record from the hospital dated November 20, 2006 indicates in the summary portion that the worker has had problems with the lower back for several years and that he has seen the family doctor with no relief and the left foot is numb, minimal movement with an increase in pain. The worker had a CT scan and the clinical history indicated a history of sciatica on the left side with a left foot drop. The impression from the CT scan was acutely herniated disc at L4-5.
The worker was referred to a neurosurgeon where the worker relayed a history of pain in the low back over the last four years with intermittent pain down the posterior aspect of the left lower extremity. The report is dated November 24, 2006 and indicates that the worker had a marked aggravation of pain a week ago and had been referred for physiotherapy, but after the second treatment 8 days prior, his left foot became weak, with paresthesia also being experienced. The doctor reported the worker was symptomatic from the left L4-L5 disc herniation and that a discectomy would be carried out shortly.
The witness confirmed seeing the worker drop the hose towards the end of the Garden River project with 9 or 10 holes to complete in his estimation and in my opinion the witness interpreted the worker’s body language to mean that the worker had hurt his back. The worker testified he did not walk down to the emulsion truck to tell the witness he had hurt his back and the witness testified that the worker did not tell him how he hurt his back. In my view, the worker did not speak with the witness after he dropped the hose because he went to sit in the company vehicle and after the hose had been dropped and the line had been blown, the foreman who had arrived at the site, finished the project.
Also of note, according to the record, the worker reported to the Adjudicator that he was told by the employer to proceed with a claim, but that the employer would appeal the case and that the employer had lawyers on the payroll. I find this to be an interesting statement to be made by the worker because the employer did participate in the hearing, however the employer was unrepresented and in my view, unfamiliar with the appeals process. I question the validity of this statement by the worker and the sequence of statements he has provided when there was interaction between himself and the employer concerning WSIB. According to the record the worker was told to rip up papers from WSIB but at the time, he did not have any papers from WSIB, as the claim file had not been initiated.
I am satisfied that with the testimony provided by the witness and the worker that a foreman who had arrived at the Garden River worksite from another project, did finish filling approximately 9 or 10 drill holes at the Garden River worksite with emulsion, despite this same foreman having reported to the Adjudicator that he did not recall such an event having occurred.
The worker also testified that he was told when he did mention problems with the low back to the employer, that the employer would take care of him. I asked the worker to define what his understanding of this statement was and he said that he felt this meant that he would have continued employment and continued pay. The worker said that he enjoyed his job at the employer and that he was well paid. The worker said that he was afraid to report an injury, yet testified he was encouraged to report his back problems to WSIB as he had a family member who was quite knowledgeable about WSIB and he never did.
In my view, the worker had ample opportunity to report a back injury to the employer, to his doctor and to the WSIB, yet he did not. I note that not one of the medical reports received on record subsequent to the Garden River project reference an accident history of a work-related injury being the reason for the treatment being sought.
The worker was terminated from the employer for reasons that were unrelated to work but rather based on personal issues and it was after his termination from the employer, that he reported a work-related injury to WSIB.
There is no date of injury reported and although the witness testified the Garden River project was in the early fall, the worker did not go for medical attention until November 10, 2006 due to back pain. I have not been provided with any proof through the testimony provided by the worker or the witness that the worker reported an injury to the low back at that time. What I have been provided with, is a statement from the witness who interpreted the worker’s body language as an injury, when in my opinion, this could have been an expression of frustration after trying to dislodge the hose from the drill hole to no avail. The worker had identified the job site as being a jackpot when he first arrived and that it was a hard job because of the size of the drill holes, the incline and the surface having loose rock.
The record reveals the worker could not recall having had a specific accident involving the low back that caused the onset of low back pain when this claim file was initially established and the accident history changed from a disablement situation to a specific tug on a hose, which in my view, has not been substantiated with any evidence.
In my opinion, there is no evidence to support that the worker reported an injury to the low back stemming from the Garden River project to either the witness or the employer. I acknowledge that the description of the process involved in filling the drill holes with emulsion is physical, but because a job is physically challenging does not equate to establishing proof of accident nor does the interpretation of body language by a witness.
The worker did seek medical attention for the low back subsequent to the Garden River project, but the worker did not provide an accident history where he related his low back symptoms to work, either due to a specific accident or disablement situation.
The employer does not have any record of the worker having reported an injury to the low back at work and the record reveals that the employer does keep a log because the employer was able to provide the exact date of the Ear Falls Hydro project from a log.
In my view, the testimony provided by the witness confirmed that he was present at the same job site as the worker and was the operator of the emulsion truck and that the filling of the remaining 9 or 10 drill holes was completed by a foreman who had arrived on the job site. I am not certain as to why this same foreman could not recall such an event when he discussed this job with the witness at a job after the Garden River project. The worker did not report an injury to the low back to the witness but dropped the hose and signalled for the emulsion truck operator to stop the pumping of the emulsion and for the hose to be blown out.
The medical evidence reveals the worker had a history of low back and left leg pain with an origin unknown. In my view, the evidence on record and provided through testimony has not established proof of accident. The worker continued to work for the employer after the Garden River project and went on to another job thereafter and it was at that job the worker testified his left leg problems became apparent. In his own testimony, the worker said it was two weeks later that at the Macteer project he began to have problems with the left leg and the worker testified he wasn’t involved in the emulsion process at that project.
I have noted some inconsistencies between the worker’s testimony and the evidence on record. It would seem the testimony provided by the worker is that he has changed his view in terms of when the gradual onset of symptoms began. The worker was able to recall that it was at the Garden River project that he had an increase in symptoms, yet there is no proof that the worker reported a specific accident or disablement situation to anyone.
I am satisfied that the denial of initial entitlement is appropriate and in keeping with policy as in my view, proof of accident has not been established.
CONCLUSION
The worker established a claim for the low back and left leg and initially related the gradual onset of symptoms to work he had been performing for the employer over the years as described on record. Through his testimony, the worker related the onset of symptoms to one project in particular. In my view, proof of accident has not been established as there is no evidence to support the worker reported a work-related injury to his employer or to a co-worker or that the medical attention sought was due to a work-related injury.
The worker’s objection is denied.
DATED October 21, 2009
C. Anzil
Appeals Resolution Officer