WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100052 OBJECTION BY: Worker EMPLOYER: Not Participating HEARING DATE: April 15, 2010 PARTICIPANTS: Worker
ISSUE
Initial entitlement
HOW THE ISSUE ARISES
The worker is claiming he suffered a lower back injury on August 25, 2007 while employed as a kitchen installer. He was 22 years old at the time.
He initially related the injury to his general duties and that his back pain increased until he was laid off work in October 2007. He later indicated in his written statements dated January 2, 2008 and June 30, 2009 that he injured his back while preventing a cabinet he was installing from falling on him. He claimed a painter who was also onsite helped out when he heard him scream for help.
He did not report the accident to his employer until a week later. The employer told him that they did not believe he injured himself at work and they maintained this position when contacted by the Claims Investigator on May 16, 2008, for their statement.
They only completed their Employer’s Report of Injury (Form 7) in April 2008 after they were notified by the Workplace Safety and Insurance Board (WSIB) that a claim had been created for this accident.
The claim was denied by the WSIB noting the lack of proof related to the delay in reporting the accident to the employer and in seeking medical attention.
The worker objected to the denial and the matter was referred to the Appeals Branch for further consideration.
AUTHORITY
Relevant operational policy:
11-01-01 – Adjudicative Process
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under questioning from the Appeals Resolution Officer (ARO). The employer did not participate in the appeal.
Summary of the Worker’s Testimony:
The worker claims he injured his lower back on August 25, 2007 when he was employed as a kitchen installer with the accident employer. He was employed in this capacity for approximately seven years prior to his accident date.
He often did the installations alone but sometimes an assistant would help lift and position kitchen cabinets so they could be secured to the wall. More often, however, he would use sticks or poles to prop up cabinets so that they would be levelled and installed.
He stated he was working alone on the day of accident and was trying to level a cabinet. It was only fastened to the wall with one screw so that it could be positioned into place before it was tightened. The screw suddenly let go from the wall and he bore the weight of the cabinet as it fell and he tried to prevent it from falling on to the floor.
He testified that a nearby painter heard him scream for help and came immediately. The two of them tried to lower the cabinet to the floor but upon doing this he felt a sudden “pop” in the left side of his lower back. He tried to catch his breath for a few minutes and waited for his assistant to come back. He then assembled a few parts for the installation but left the job without completing it.
He continued working the next day and onwards because he did not realise the extent of the damage he had done to his lower back. He expected the pain to subside on its own within a few days as that had been his experience in the past with other strains he had suffered while working in construction.
Within a week of the accident he noticed he was unable to keep up his usual pace of installations and his employer asked him why he was slowing down. He told his supervisor what had occurred and he replied by telling him to go and see a doctor on his own time.
He sought initial medical treatment from a chiropractor friend on September 5, 2007. He explained that it was a work-related injury but he has no idea why the chiropractor did not complete a WSIB form at the time. The chiropractor diagnosed a possible disc herniation in L5-S1 level and recommended he have physiotherapy. He also recommended the worker report the injury to the WSIB.
The worker testified that the next day he told his supervisor he had sought medical attention but the supervisor replied that he did not believe the injury could have occurred at work and simply walked away from him. He followed his boss and continued to request that he complete a WSIB form to which the employer replied that he would not be entitled to receive WSIB benefits for his type of injury.
The worker testified that he tried to go into the office to get someone there to complete a form for him but his boss yelled at him to either get back to work or go home.
The worker indicated that had just purchased a house with his fiancée and was concerned about losing his income so he continued to work but his productivity suffered because of his injury.
He relied on the employer to give him work but as time progressed he was given fewer and fewer jobs and occasionally had weeks where had no work at all. He believes that this was his employer’s way of punishing him for trying to claim a work injury. He also recalled them saying that they were giving him less work to allow his back to heal, implying that they were doing him a favour.
He stated that prior to his injury he was very busy at work and regularly worked six to seven days per week.
He worked sporadically through September and October. His employer asked if he would consider working on weekends only and he refused. He contacted Revenue Canada who informed him that his employer was obligated to issue him a Record of Employment (ROE) due to the lack of work. He asked his employer to issue an ROE if they weren’t going to file a WSIB report and they provided him with one. The ROE indicates the reason for issuing the form as code ‘A’ which is shortage of work.1
He stated he collected Employment Insurance Benefits for approximately 6 to 8 weeks after he received his ROE. His fiancée then supported him for about a year and he is currently on Ontario Works Benefits and has been for the last 14 months.
He eventually went to see his family doctor on January 22, 2008 who then completed the WSIB medical reports which created the claim. His physician has recommended against surgery because he is still young and hopes that he will recover through non-surgical treatment. He is currently taking pain and anti-inflammatory medication as well as a sleeping pill.
He was shown some of the information contained in the investigation report, particularly the statements from his supervisor.
In response to the allegation that he worked at a night club, the worker stated this was false. He lived with his fiancée over a coffee shop where she bartended and he denied ever working there. He also denied working as a roofer during the same time that he was employed with the employer and indicated that he was generally working 6 to 7 days per week prior to his accident and there would have been no time for him to even consider working elsewhere. He stated he has not shingled a roof since he was about 14 years old.
He explained that if the employer claimed that his production was suffering it was because his injury prevented him from maintaining the number of installations that he was performing prior to his injury. He was in extreme pain at the time and was not sleeping well, which may have explained his pale appearance which his supervisor mentioned.
He was shown the Worker’s Report of Injury (Form 6) which he completed on February 2, 2008 that shows the accident date as August 16, 2007, which is different than his testimony and other evidence on file. The worker stated that at the time that he completed the form, he did not realize the importance of the accuracy of the accident date.
He was also asked about his statements to the investigator on May 2, 2008 where it appeared he was claiming his injury was related to his job duties in general rather than a specific incident. He testified that at the time the investigator had come out to meet with him, he was in extreme pain and could not specifically account why it was recorded as it was. He had never gone through the WSIB process before and was unsure about what was required of him.
He has not worked since the last day he worked with the accident employer. He hopes to return to some sort of employment in the future but does not believe he will ever be able to work in the construction field again, which is the only industry he has known in his working life. There has been no contact with the accident employer since the last day he worked there and they had not contacted him either.
He stated there is no way of ever locating the painter who assisted him on the day of injury as he was a sub-contractor of another company and was not someone who he had regular contact with. He stated that had he known importance of this person’s statement and the extent of his injury, he would have obtained his name at the time.
He stated that the biggest problem with his claim was the refusal of his employer to complete an accident report when he initially asked that it be done in September 2007. Again, he was unsure what was required to file a WSIB claim so he did not what to do when his employer refused to complete one for him.
Assessment of the Evidence:
I have carefully considered all of the available information in reaching this decision.
The claim was initially denied as there was no proof of accident in part because of several different accident dates and a delay in seeking medical attention.
There is a delay in seeking medical attention; however, the worker’s chiropractor clarified in his submission dated February 25, 2010 that he first saw the worker on September 5, 2007 for acute lower back pain with radiation into the left leg. He felt the symptoms represented an L5-S1 disc herniation. The letter states that the worker reported it as a work-related injury occurring on August 25, 2007 while working as a kitchen cabinet installer.
He saw the chiropractor again on October 10, 2007, November 7, 2007 and March 19, 2008. The report states that by that time the worker had obtained magnetic resonance imaging (MRI) results confirming he had an L5-S1 disc herniation.
The claims adjudicator spoke to the chiropractor on March 6, 2008, who confirmed treating the worker within about a week of the accident but did not submit forms to the WSIB as he treated him at no charge; however, he did recall diagnosing the worker with a herniated disc at the time.
His family physician submitted a note dated March 9, 2010 clarifying that the accident date on her letter of June 18, 2008 was incorrect and should have been August 25, 2007. His physician indicated in her letter of June 18, 2008 that she had no knowledge that the worker had a similar injury prior to this claim.
The employer denied having knowledge of the accident and indicated this in their Employer’s Report of Injury (Form 7) completed on April 14, 2008.
The claims adjudicator spoke to the employer on April 15, 2008 and they believed the worker hurt his back while roofing and that he had quit his employment with them to work as a roofer.
The worker denied this and it would be unlikely that he would have been capable of performing this type of work given the confirmed disc herniation in his lumbar spine. Furthermore, there is no evidence supporting their allegation.
The completion of the Form 7 aligns with the worker’s testimony regarding the delay in having a claim established. His testimony was that the employer repeatedly refused to acknowledge his injury and refused to complete an injury report. Their Form 7 was completed only after they received notification that a WSIB claim had been established.
An investigator obtained statements from relevant parties involved in the claim. A co-worker recalled the worker having a sore back and having difficulty with heavy lifting.
The worker’s supervisor provided a statement indicating he had knowledge of the worker’s sore back and needing a back brace prior to him leaving work. I accept this as evidence that they were aware of the worker’s injury prior to him being issued an ROE on October 19, 2007 and it contradicts their Form 7 where they denied having knowledge of any injury.
Although there are delays associated with this claim, I find that the worker provided a reasonable explanation and account of his injury and the reasons for the delays. Many of them appear to be caused by the employer’s refusal to acknowledge his injury or, at the very least, complete an accident report even when they knew the worker had a back injury.
The evidence now indicates that the worker sought initial medical treatment from a chiropractor on September 5, 2007 which is approximately a week and a half after he claims to have injured himself. This is not an unreasonable delay particularly if he hoped he would be able to work through it as he had done on other occasions.
The worker claims he did not know enough about the process to press the matter further so he carried on with not having a claim filed until he saw his physician in January 2008. This is supported by the fact that his physician’s report was the originator of this claim, approximately five months after his accident.
I find the probabilities of the evidence weigh in favour of the worker and I accept that he suffered a lower back strain and herniated disc on August 25, 2007.
For these reasons, I accept that the worker is entitled to full loss of earnings (LOE) from the date of his ROE, or October 19, 2007 to at least June 18, 2008 which is the date of the last medical report on file. The extent and duration of benefits beyond that date will be left to the discretion of the Operating Area.
CONCLUSION
Initial entitlement is granted for the lumbar spine and disc herniation at the L5-S1 level.
The worker is entitled to receive full LOE benefits, less any assignments, from October 19, 2007 to June 18, 2008.
The extent and degree of benefits paid beyond that date is left to the discretion of the Operating Area.
The objection is allowed.
DATED April 22, 2010
D. Giannobile Appeals Resolution Officer Appeals Branch
Footnotes
- Taken from www.servicecanada.gc.ca