WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100065
OBJECTION BY: Employer
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: April 7, 2010
PARTICIPANTS: Employer, Employer Resource, Worker, Worker Representative
ISSUE
The employer objected to the granting of initial entitlement to benefits for a low back injury.
HOW THE ISSUE ARISES
The worker was working in an accommodated millwright position due to a permanent restriction related to a prior work-related right elbow injury. On November 8, 2008, while stepping down onto old bin tops and carrying a gear reducer weighing approximately 103 pounds, he felt a sharp pain in his lower back. On November 10, 2008 he stopped work, reported the injury to the employer, and sought medical attention. He was diagnosed with a lumbar strain/sprain. The claim was allowed and the worker received health care and loss of earnings benefits from November 10, 2008 to February 9, 2009.
The employer requested a reconsideration of the allowance of the claim as the worker removed himself from his employment when he engaged in an activity (lifting beyond 50 pounds) which was outside of his permanent restriction represented by a prior Workplace Safety and Insurance Board (WSIB) claim for a right elbow condition.
As outlined in a letter dated December 23, 2008, the Case Manager concluded that although the worker engaged in an activity (lifting a gear box weighing more than 50 pounds) that was outside of his restrictions relating to a prior claim, the injury arose out of and in the course of his employment. Therefore the granting of initial entitlement was upheld.
The employer filed an Objection Form objecting to the Case Manager’s decision and the matter was referred to the Appeals Branch for further consideration.
AUTHORITY REFERENCE
15-02-02 Accident in the Course of Employment
15-03-08 Personal Activities/ Removing Self from Employment
ASSESSMENT OF THE EVIDENCE
I reviewed the case record, the worker’s testimony, the employer and worker representative’s submissions and I have taken into account relevant WSIB operational policies. In reaching a decision I considered all the evidence but in particular the following.
Pertinent Facts on Record:
The worker filed a Worker’s Report of Injury (Form 6) dated December 12, 2008 indicating on November 8, 2008 after stepping down onto the old bin tops while carrying a gear reducer, he felt a sharp pain in his lower back.
The employer filed an Employer’s Report of Injury/Disease (Form 7) dated November 11, 2008 indicating the gear reducer weighed approximately 103 pounds. The employer also confirmed the accident history and that the worker reported it on November 10, 2008.
The worker’s chiropractor filed a Health Professional’s Report (Form 8) dated November 11, 2008. He confirmed the accident history and indicated he saw the worker on November 10, 2008. The diagnosis was lumbar strain/sprain, and subluxation with left leg sciatica.
Worker’s Testimony:
The worker testified he had a previous work-related right elbow injury and as a result, had a permanent work restriction of no heavy lifting beyond 50 pounds. He confirmed in January 2008 he returned to work in an accommodated millwright position because of this restriction for his right elbow. He has been a millwright for 11 years.
The worker testified he had just completed his shift on November 7, 2008 and went home. He had a beeper. A flour miller at the plant contacted him on November 8, 2008 and indicated there was a problem with the elevator gear box; the main unit which runs the entire plant. The worker confirmed it was a common occurrence for him to be called back to work to do a repair. As a result of this call, he returned to the plant to do the repair work. He was the only person called; there was no other millwright at the plant. He confirmed he had changed a gear reducer on many occasions prior to November 8, 2008 as this was part of the millwright’s job duties.
The worker testified on November 8, 2008 he picked up the gear reducer (approximately 103 pounds) and carried it up a set of stairs. He installed it on a machine. It did not fit properly. He carried a second gear box up the stairs to install it. He asked a co-worker to help him remove the first gear reducer from the machine. He experienced a sharp pain after stepping onto the old bin tops while carrying the gear reducer.
The worker testified he was aware he had a lifting restriction related to a prior work-related right elbow condition but had just forgotten about it. He recalled being told his arm would become stronger as he used it. He confirmed he was given a 3 day suspension as a result of working beyond his recognized restriction on November 8, 2008.
Main Arguments Submitted by Employer and Work Representative:
The employer submitted although the worker was performing a job function of a millwright on November 8, 2008 when the incident happened, he had an explicit restriction not to lift more than 50 pounds without assistance. She noted the worker was well aware of this lifting restriction and had actually signed off on it. She indicated by lifting more than 50 pounds he put himself at risk and voluntarily removed himself from what would be reasonably be expected of him.
The worker representative submitted on November 8, 2008 the worker did not voluntarily remove himself from employment when he lifted the gear reducer. Rather he was assigned the task of repairing the elevator gear box and performed this job function which was well within his job duties as a millwright. He stated based on the place, time and activity, the incident arose out of and in the course of employment.
Analysis/Decision:
The worker was aware he had a permanent lifting restriction related to a previous work-related right elbow injury. He acknowledged the fact that he had worked in an accommodated millwright position since returning to work in January 2008.
On November 7, 2008 the worker completed his shift and went home. He had a beeper. It was a common occurrence for him to be called back to work to do a repair. On November 8, 2008 a flour miller at the plant paged him indicating there was a problem with the elevator gear box, the main unit which runs the entire plant. As a result, he returned to the plant. He was the only person called; there was no other millwright at the plant. The worker injured his lower back after stepping onto the old bin tops while carrying the gear reducer weighing approximately 103 pounds.
I am satisfied the worker was performing a work activity on November 8, 2008 (repair of elevator gear box which involved carrying a gear reducer) which the employer expected him to do because he was paged by a flour miller and asked to return to the plant to do the repair work. At that time, there was no other millwright available to do the repair work. The incident happened during work hours and on the employer’s premises. Although the act of lifting a 103 pound gear reducer was outside the worker’s permanent work restriction of no lifting beyond 50 pounds, given the nature of the work (repairing of elevator gear box), this activity was clearly incidental to the employment. Therefore, I accept the low back injury of November 8, 2008 arose out of and in the course of employment.
CONCLUSION
For reasons outlined above, I confirm the granting of initial entitlement for a low back injury resulting from a workplace incident of November 8, 2008.
The employer’s objection is denied.
DATED May 12, 2010
F. Pansino
Appeals Resolution Officer
Appeals Branch