Worker v. Employer, 2010 CanLII 35728

OBJECTION BY: Worker

WORKER: Participating

EMPLOYER: Participating

REPRESENTATIVES: Worker, Employer

HEARING DATE: April 15, 2010

ATTENDEES: Worker, employer, worker and employer

representatives

ISSUES:

The employer is objecting to the allowance of initial entitlement. The claim was allowed in the decision letter of January 29, 2009 and upheld in the review letter of

June 24, 2009.

The worker is objecting to the discontinuation of Loss of Earnings (LOE) benefits after August 24, 2009. This was determined in the claims adjudicator’s decision letter of

July 3, 2009.

HOW THE ISSUES AROSE:

On December 2, 2008, this now 55 year old worker injured his back while lifting boxes. He was diagnosed with an upper back strain. Treatment was conservative and consisted of rest, analgesics, and muscle relaxants. X-rays of the thoracic spine were normal while an x-ray of the right shoulder showed osteoarthritic changes of the AC joint.

Return to work restrictions included avoiding lifting from floor to waist and from waist to shoulder. No above shoulder lifts should be done. Prolonged positioning should be avoided. The worker also started physiotherapy.

Due to the worker’s claim to be unable to work, he was referred to a Regional Evaluation Centre (REC) on June 25, 2009. The worker was diagnosed with a resolving thoracic strain with deconditioning. He was already partially recovered and a full recovery was expected in 8 to 10 weeks with continuing therapy.

Entitlement to therapy and continuing benefits stopped on August 24, 2009. The employer relationship ended due to reasons unrelated to the compensable condition.

The worker is claiming to be totally disabled and unable to perform any work. He is unsure of his diagnosis, is not receiving active treatment, and has applied for the Canada Disability Pension.

AUTHORITY:

Policy: 18-03-02 Payment of LOE Benefits

15-02-01 Definition of an Accident

15-02-02 Accident in the Course of Employment

EXHIBITS:

Several documents from the OWA concerning the worker’s credibility about internal company matters.

ASSESSMENT OF THE EVIDENCE:

It is the employer representative’s belief that whatever occurred on December 2, 2008 was just a continuation of the claim that was denied for the worker’s chest wall. The worker filed a claim that was denied for his chest and he was off work for a few days about a month before this new claim. The worker was still symptomatic with chest problems when he returned to work on December 1, 2008. There was no new accident, just a continuation of something that the WSIB has already determined was a non-compensable condition.

The employer claims that nothing out of the ordinary occurred on December 2, 2008. It may be possible that he hurt his back but what is more probable was that this was just the same old injury that was already denied. Everything flows from the non-compensable injury. There was no mention of heavy lifting on the doctor’s medical reports. Even on the follow up reports the doctor does not describe a lifting incident. It was only after the chest wall claim was denied that the doctor started to describe a lifting incident.

In relation to the denial of continuing LOE benefits, the employer representative supports the decision of the WSIB. The MRI had good findings as nothing wrong was noted. The REC report showed the worker would be recovered in 6 to 8 weeks. The employer representative noted the excellent summaries and decision making process that the adjudicator went through as documented in memos 30 and 37. The employer requests that if initial entitlement remains allowed then all benefits should stop as per the REC recommendations and the claims adjudicator’s decision.

The worker representative acknowledged the denied chest wall claim that was related to the lower ribs. He stated the worker has not objected to this decision. However, the representative clarified that the new claim involved the upper back and not the chest or lower ribs. It involves a distinctly different body part. The timing of the two claims is coincidental but they are separate events for separate claims for separate impairments.

The worker described the events that caused the upper back injury. He was involved in delivering and unloading an unusually heavy load by himself. The repetitive twisting and lifting caused a back injury. He called the employer for assistance but by the time they arrived, he had completed the job. He continued to work as long as possible then saw his doctor. Even though his doctor may not have clearly documented a new injury at the time, the worker claims he not only told the doctor but also his employer.

The worker representative submitted a number of papers indicating an employment situation involving the lack of credibility of the employer’s dispatcher. The representative is requesting that the claim continue to be allowed based upon the credible evidence of the worker and the credible medical reports of the doctor. It should be accepted as fact that the worker was involved in repetitive, heavy lifting during the loading and unloading of boxes of paper on December 2, 2008. This caused his back strain as diagnosed by the treating physician and as noted by the REC assessment.

It is the position of the worker representative that the treating physician supports an ongoing impairment. Dr. Kalin has described daily upper back pain. This doctor states the worker is unable to work and there no longer is any mention of the prior rib injury.

The worker representative questions the findings at the REC assessment. It predicted a full recovery in 8 to 10 weeks. However, the representative states that did not happen. The worker has an ongoing need for therapy which he can not afford on his own. He requires treatment and has continuing pain. The WSIB needs to deal with the worker’s continuing disablement.

I note the accident history as described by the worker. It remains consistent with the contemporaneous claim file and medical documentation. I have no reason to doubt that an injury occurred on December 2, 2008. The worker was involved in both heavy and repetitive lifting. The body actions involved bending and twisting many times over a number of hours. This was a task normally performed by more than one person. The worker performed this work on his own, was injured, sought medical attention, and reported a workplace injury. The claim remains allowed for an upper back strain.

I have reviewed the history of this claim. I note the extensive physiotherapy provided as well as the treatment given to recondition the worker. The findings of the REC assessment remain valid. There is no objective basis to allow any continuing entitlement beyond August 24, 2009. There are no significant findings to account for the worker’s purported pain levels or to support his claim to be unable to work.

There are a number of complicating factors of a non-compensable nature that may account for the worker’s continuing pain. It is not well documented but noted several times within the claim file that the worker had a multi-level lumbar decompression almost 3 decades ago. He also has had a history of right shoulder pain for a few years. Neither of these is recorded as being compensable in nature. The treating physician also recently ordered an MRI of the shoulder and the lower spine. The worker claims to be unable to work due to his pain. The source of his pain no longer seems to be in relation to the upper back strain that he experienced on December 2, 2008.

Finally, I have reviewed the diagnostic imaging results. Entitlement for this was initially denied as it was requested for the shoulder and lower back. This testing was only approved when it was performed in relation to the upper back. There are no significant findings to account for any continuing impairment. A small herniation was noted at T7-8 with mild degenerative changes. As there is no spinal stenosis or significant neural foraminal narrowing, the findings are not classified as disabling. Also, it can not be verified if this was a pre-existing condition since it would not have had an impact on the worker’s ability to perform or resume his regular work.

CONCLUSION:

The employer’s objection is denied. The claim remains allowed for an upper back strain on December 2, 2008.
The worker’s objection is denied. The claim was appropriately finalled on

August 24, 2009. There is no additional entitlement to LOE benefits.

DATED: June 3, 2010

P. Puhl

Appeals Resolution Officer

Appeals Branch