WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100062
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
ISSUE
Denial of initial entitlement for a low back injury
HOW THE ISSUE ARISES
The worker is an oven operator and on July 13, 2009 while working at the end of the Shreddie Oven, he slipped on product dust on the floor and felt a pull in his right lower side of his back, hip and leg. He reported the incident and injuries immediately to the employer. He did not miss any time from work and continued performing his regular job and hours. The worker sought initial medical attention on August 6, 2009.
As outlined in a letter dated September 28, 2009, the Eligibility Adjudicator denied initial entitlement as proof of injury/accident could not be established due to the delay in seeking medical attention.
The worker representative objected to the decision and filed an Objection Form dated
January 19, 2010. The matter was referred to the Appeals Branch for further consideration.
AUTHORITY
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
RESOLUTION METHOD AND PROCESS
The worker representative filed a 60 Day Decision Option Form dated March 15, 2010. In doing so, they agreed to a final Workplace Safety and Insurance Board (WSIB) decision based on a review of the case record.
ASSESSMENT OF THE EVIDENCE
I reviewed the case record and have taken into account relevant WSIB operational policies. In reaching a decision I considered all the evidence but in particular the following.
On July 13, 2009, while working at the end of the Shreddie Oven, the worker slipped on product dust on the floor and felt a pull in his right lower side of his back, hip and leg.
The employer confirmed the incident/injuries were reported immediately.
The worker did not miss any time from work and continued performing his regular duties and hours.
The employer indicated the worker was on vacation the weeks of July 20, 2009 and
July 27, 2009.
The employer indicated on August 4, 2009 he reported that approximately 1 week before, he began experiencing pain in his back and related it to the injury.
The worker’s chiropractor filed a Health Professional’s First Report dated
August 24, 2009, indicating the worker was first assessed on August 6, 2009. He indicated the worker injured his lower back, hip and leg when he slipped and fell due to product dust on the floor while working at the end of Shreddie Oven. The diagnosis was thoraco-lumbar strain/sprain injury with associated nerve root irritation.
- On February 18, 2010 the Eligibility Adjudicator spoke to the worker. He confirmed he did not seek medical attention prior to August 6, 2009. He confirmed he was on holidays for 2 weeks in July 2009. He stated his back was better while on holidays and then flared up again when he returned to work. He was still experiencing back pain and was to have an MRI.
Analysis/Decision:
WSIB operational policy document 15-02-01 states in part, there must be sufficient evidence showing that an individual sustained an injury by accident. The definition of a workplace accident includes the following:
Chance event occasioned by a physical or natural cause -There must be an identifiable unintended occurrence preceding the injury. An example of this is a fall, cut, blow, slip, or trip. The injury itself is not a chance event.
A wilful and intentional act, not being the act of the worker - This refers to an injury suffered by a worker because of someone else’s action.
A disablement arising out of and in the course of employment - This includes, an unexpected result of work duties for example; a sudden onset of back pain while lifting a box at work or a condition that emerges gradually over time.
WSIB operational policy document 11-01-01 states in part; 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
The employer confirmed that on July 13, 2009 the worker reported, that while working at the end of the Shreddie Oven, he slipped on product dust on the floor and felt a pull in his right lower side of his back, hip and leg. The worker did not miss any time from work because of this incident. He sought initial medical attention on August 6, 2009 with his chiropractor and was diagnosed with a lumbar/thoracic strain/sprain injury with associated nerve root irritation. The worker continued performing his regular duties and hours between July 13, 2009 and August 6, 2009 but took a 2 week vacation in the end of July 2009. There is no evidence indicating the worker complained to the employer or co-workers about his back, hip or leg during the period he continued working his regular job. In view of the above but in particular the delay in seeking initial medical attention, I am not satisfied the worker’s back injury on August 6, 2009 (diagnosed as thoracic-lumbar strain/sprain injury) is compatible or related to the incident that happened at work several weeks before on July 13, 2009.
CONCLUSION
Based on the above reasons, initial entitlement for a back injury is denied.
The worker’s objection is denied.
DATED May 12, 2010
F. Pansino
Appeals Resolution Officer
Appeals Branch