WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090074
OBJECTION BY: Employer
WORKER: (Not participating)
REPRESENTATIVE: Employer
NATURE OF ENQUIRY: Decision without a hearing
ISSUE:
The employer objects to the decision of the adjudicator dated November 3, 2008 allowing initial entitlement in this claim.
HOW THE ISSUE ARISES:
The worker was employed as an assistant manager at a large clothing store. On October 1, 2008 while moving and lifting boxes in the back room, the worker sustained an injury to his low back. The worker reported the incident the following day and sought medical attention at which point he was diagnosed with a low back strain.
The worker was unable to work from October 3, 2008 until October 12, 2008 when he returned to work. The worker was also unable to work again from October 16, 2008 until October 29, 2008, at which point he returned to his regular job duties. The worker has subsequently been terminated from his employment due to a non compensable matter.
The employer objects to the decision that allows entitlement in this claim maintaining the worker did not report a work-related low back injury until October 10, 2008. The employer has also pointed out the worker was known to have chronic low back difficulties relating to a motor vehicle accident in the mid 1980s.
Authority Reference
11-01-01 Adjudicative Process
15-02-02 Accident in the Course of Employment
18-03-02 Payment of LOE Benefits
ASSESSMENT OF EVIDENCE AND SUBMISSIONS:
In arriving at my decision, I considered the information in the claim file, the relevant sections of the Act, and the appropriate operational policies.
Having reviewed all the available information, the following is a summary of my assessment/observations.
The Workers Report of Injury (Form 6) provides an accident date of October 1, 2008 when the worker injured his low back while lifting boxes in the back room weighing 20 to 30 pounds. The worker indicates that he reported the injury to the store manager the following day and also mentioned this injury to a fellow sales associate.
The Employers Report of Injury (Form 7) identifies the date of accident as October 1, 2008 and provides the same accident history that was reported by the worker on the Form 6. However, the employer indicates the worker did not report this workplace injury until October 10, 2008.
According to a letter from the employer, the worker completed his regular shift on the date of the apparent injury and also worked a full day on October 2, 2008. The worker then called in sick starting on October 3, 2008 during his regular scheduled workdays and it was not until October 10, 2008 that he made reference to injuring his low back while moving boxes on October 1, 2008. The letter also indicates that the worker had made unauthorized revisions to the computer system changing some of the days that he was off work to vacation days and absence due to attendance at a funeral.
The employer representative has also pointed out the worker was known to have chronic low back problems that were the result of a motor vehicle accident in 1985. There is no indication that while working with this employer over a 6 year timespan, that the 1985 motor vehicle accident had caused the worker to miss any time from work. In memo 1 of the file, the worker does acknowledge having prior low back complaints following a motor vehicle accident in 1995 but indicates this had not stopped him from working, and only caused occasional discomfort.
The employer indicates that in the weeks following his full recovery and return to work in late October 2008, the worker was ultimately terminated due to what the employer has described as fraudulent behaviour, which the employer believes should raise questions regarding the workers credibility, pertaining to the initial injury.
On the Form 7, the employer indicated the worker did not report the work related lifting incident until October 10, 2008. Memo 1 in the file documents a discussion between the adjudicator and the coworker as well as the store manager. Each of them confirmed the details provided by the worker with respect to the date and mechanics of the injury. The memo goes on to state; “There were no concerns from Mr. L…i that this was not work related, noting the near immediate reporting”.
Memo 5 makes reference to a submission made by the employer representative that contained a signed statement from the store manager, which directly contradicts his earlier statement regarding confirmation of the workers accident history/reporting. There is a further letter submitted in April 2009 relating to this matter whereby the store manager denies making the statements attributed to him by the adjudicator in memo 1. This contradiction in the statements by the store manager has never been fully explained and although the store manager has denied telling the adjudicator the information contained in memo 1, there has been no explanation provided for the vastly different information that he subsequently provided. The adjudicator ultimately elected to accept the manager’s initial statement relating to the injury. In assessing which of the statements attributed to the store manager is more likely to be accurate I had regard for the fact the adjudicator would have no ulterior motive to attribute the comments made by the store manager in memo 1 relating to the accident history and reporting, unless they were actually made. Therefore, in my assessment of the information I find that on the balance of probability, the statements attributed to the store manager in memo 1 are accurate. Also, the statement made by the co-worker in memo 1 has not been retracted.
It would appear that much of the employer’s concerns are based on the workers alleged actions with respect to unauthorized changes he made to the employer’s computer system for the purpose of manipulating sales data. While I can appreciate the employer’s concerns regarding the worker’s credibility, if in fact these allegations are accurate, the fact remains the circumstances regarding the workers termination from employment are not an issue before me and I am not in a position to make any judgment on the credibility of the claim based on the allegations made by the employer.
Although the workplace injury was not witnessed, ultimately when reviewing all the available information, we have a situation where there is a consistent set of circumstances reported whereby the worker sustained an immediate onset of low back pain while moving boxes on October 1, 2008. All of these variables have remained remarkably consistent throughout the file. Also, although I note there is a brief delay in the worker seeking medical attention, this is not unreasonable given that the workers regular job duties are relatively sedentary and he reasonably believed that his symptoms would subside with over-the-counter pain medication and rest over the course of a few days. Given this set of circumstances, I have no persuasive reason to have misgivings about the validity of this claim.
CONCLUSION:
Based on my review of all the available information, I have arrived at the following conclusions.
The available information supports the worker sustained an injury to his low back during the course of his employment on October 1, 2008.
The decision of the adjudicator granting initial entitlement and loss of earnings benefits for the periods of time missed from work is upheld.
The employer's objection is therefore denied.
Dated at Toronto, Ontario October 29, 2009
C. Cirinna
Appeals Resolution Officer
Appeals Branch