WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100060
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Not participating
REPRESENTATIVE: Worker
HEARING DATE: May 17, 2010
ATTENDIES: Worker, Worker representative, Observer
RESOLUTION METHOD & PROCESS
A hearing was convened on May 17, 2010.
ATTENDEES
The worker, his spouse and the worker’s representative attended the hearing. The employer chose not to participate.
ISSUE(S)
The worker is objecting to the claims adjudicator’s decision dated December 19, 2007 which denied initial entitlement for a cervical spine injury in the above claim.
HOW THE ISSUE(S) ARISES
The worker is a 49-year old former service technician for a company that installs heavy automated doors on commercial and business premises. On November 27, he filed a Form 6 claiming an injury to his cervical spine that occurred on August 8, 2007. The claims adjudicator denied entitlement because she was unable to establish proof of accident.
AUTHORITY
- 11-01-01 Adjudicative Process
- 11-01-02 Decision Making
- 11-01-15 Aggravation Basis
- 15-02-01 Definition of Accident
- 15-02-02 Accident in the Course of Employment
SUBMISSIONS
The worker’s representative relies on the testimony at the hearing and the medical evidence on record to support a cervical injury in this claim. He also referred to four WSIAT decisions to support the claim.
EXHIBITS
- A written statement from the worker’s spouse presented at the hearing on May 17, 2010.
ASSESSMENT OF THE EVIDENCE
In coming to her decision, I note the claims adjudicator spoke to the employer to get his version of the events leading to this claim. But she did not speak to the worker to get his version.
There are two contradictory accident histories. On the Form 6, the worker reports:
Removing caulking from door frame PZ was on top of the door frame (revolving door) and fell through cover frame and landed on my head. Paul is approx 6’ & 200 lbs.
On the Form 7 the company vice president, DP, reported:
A piece of aluminum fell from 1 ft above and struck employee on helmet.
The worker’s version is consistent throughout the claim file. He testified that PZ, who is also an owner of the company, was working on top of a revolving door. As the worker was walking through the door frame, PZ came crashing down onto his head. PZ was standing on a metal plate. The metal plate, with PZ on top of it, landed on the worker’s head and sent them both sprawling onto the floor. The worker was wearing a hard hat at the time.
DP, who filed the Form 7, was not a witness so I cannot accept his version of the event. In memo 3 dated December 13, 2007 PZ confirms the fall but does not remember falling on top of the worker. He recalls only a piece of metal hitting the worker. PZ does not deny falling on the worker. He just doesn’t remember it.
I accept the worker’s version of the event given under oath in credible testimony.
The worker also testified that he experienced immediate symptoms in his cervical spine although they were not significant enough to seek immediate medical attention. The worker continued to perform his pre-accident job duties while using over-the-counter and home remedies described in exhibit 1. The worker believed that his cervical injury would eventually resolve on its own. Instead it got worse and on November 26, 2007 he received first medical attention. The worker has been receiving continuing medical treatment ever since.
The diagnosis of the worker’s injury is compatible with the accident history. I note the x-ray of December 20, shows degenerative disc disease of the cervical spine and an MRI dated June 23, 2009 shows disc protrusion at C4-5 and disc herniation at C5-6.
The worker testified that he was symptom-free before the accident of August 8, 2007 and there is no evidence that contradicts his testimony in that regard.
The worker described his job duties installing and repairing large commercial doors as very heavy work, which he could no longer perform by November 2007 because of his worsening neck symptoms. He testified the employer had no light duty available to accommodate him so in November 2007 he went off work.
I accept the worker’s testimony in this matter. In my view, there is sufficient evidence to accept a cervical spine injury in this claim.
CONCLUSION
The worker’s objection is, therefore, allowed.
DATED: May 31, 2010
F. J. Mackin
Appeals Resolution officer
Appeals Branch