WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100086
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: April 19, 2010
PARTICIPANTS: Worker, Worker’s Representative
ISSUE
The worker objects to the November 5, 2007 claims adjudicator decision denying entitlement for whole body vibration and degenerative disc disease as a result of workplace exposures. The worker requests a Non Economic Loss (NEL) assessment for the lumbar spine.
HOW THE ISSUE ARISES
The claim was established in February 2007 to consider this now 58 year old worker’s entitlement for whole body vibration resulting from workplace exposure while operating a skid steer between 1996 and 2005.
AUTHORITY
11-01-01 – Adjudicative Process
11-01-02 – Decision Making
11-01-03 - Merits and Justice
15-02-01 – Definition of an Accident
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Submissions
The worker representative confirmed the requested remedy as recognition the worker’s lumbar degenerative disc disease (DDD) is a result of the employment duties and a NEL assessment for this condition.
The representative notes there was no evidence of a back condition prior to this employment. The representative suggests the condition manifested itself as a result of the work duties and workplace exposure. The representative suggests it is reasonable to conclude not only that the vibration caused the condition but that the evidence establishes on the balance of probability the work duties at the least contributed to the condition.
The representative suggests the St. Michaels May 16, 2007 report is the starting point for the claim. The representative suggests this report supports entitlement. The representative notes there was significant exposure to whole body vibration given the absence of shock absorption, the use of solid tires, and the fact the configuration of the skid steer placed the lumbar spine in an ergonomically unfriendly environment. The representative suggests there is significant evidence to link whole body vibration and the lumbar spine condition. The representative notes August 11, 2000 x-rays following an August 9, 2000 back injury were reported as normal and by the January 3, 2007 x-rays osteoarthritic changes were reported. The representative suggests if not the causal factor the employment duties were at least a significant contributing factor to the noticeable change between 2000 and 2007. The representative suggests on balance it is appropriate to accept these duties as the cause of the condition. The representative suggests the exposure was much higher than recognized by the adjudicator in the November 5, 2007 decision. The representative suggests this is not a case where the condition results from age and the worker’s general condition, but is specific to exposure, and the length of employment supports a reasonable relationship to the work.
Testimony
The worker provided testimony outlining his employment duties, the design of the ponds, and the design of the equipment he operated.
The worker confirmed starting with the employer in 1996. He worked grading wafer board for approximately 4 months and then as a labourer on the ponds moving lumber with aluminium poles for 3 months. He reports this was shift work, the employer accommodated his request to work days, and he was placed on the bobcat cleaning ponds. He reports he worked in this position until going off work in August 2005.
In describing his employment duties the worker confirmed he would work in the ponds an average of 4 hours a day. He reports for the remainder of his shift he would use another skid steer to clean up the employer yard, move snow, and carry out other duties. The worker reports there was a significant difference between the “pond” machine and the “yard” machine.
The worker reports the ponds had concrete floors with dimensions of 12 feet by 100 feet. He reports initially there were 6 ponds to be cleaned and over the years these were slowly automated so by the time he left he was cleaning 3 ponds. He reports the ponds would fill with debris which sunk off the lumber being processed (rocks, dirt, wood etc). He reports the floor was rough for driving on as a result of the debris.
He also reports the “pond” machine was modified for this work. The roof was cut down to allow the machine to pass under the overhead beams. He reports there was no door and no heat in the cab. He reports he could not sit erect and would slide forward and tilt his head sideways while driving. The seat was lowered and bolted to the floor, and the machine had no suspension. The worker reports the first two years they used air tires but due to costs the company put solid tires on the machine for two years before going back to air.
The worker reports the employer did put a special seat in the yard machine after he complained but no modifications were made to the pond machine. The worker also reports the yard was generally very rough especially in the spring as trucks would even get stuck in the yard. Trucks would sink in and make large ruts which they would back blade with a loader.
Analysis
The record confirms the following employment history.
From 1967 to 1979 the worker was employed as an apprentice and mechanic in the family business. The worker operated this business from 1979 to 1990 without WSIB coverage. He was then self-employed operating a confectionary for one year following which he worked in the lumber industry for his brother handling wood products and driving.
He started with the precursor to the accident employer March 13, 1996. He worked with this employer primarily operating a skid steer as a pond man until August 18, 2005 when he went off work for a neck condition for which there is a WSIB claim. The employer subsequently ceased operations and the worker participated in a Labour Market Re-entry program with further benefits paid based on projected wages of $8.25 an hour for the Suitable Employment or Business (SEB) of gas station attendant. The worker subsequently advised he had been approved for Canada Disability Pension (CDP). As this benefit did not exceed projected SEB wages a CPP offset was not applied to the continued LOE benefits.
In comparing the case record evidence and the worker testimony I consider the worker to have described significantly greater exposure than previously accepted. Accepting the worker’s evidence at face value I accept the worker spent considerably more hours operating both the “pond” and “yard” skid steers than previously recognized. I also accept the worker’s evidence regarding modifications to the “pond” machine suggests significantly greater risk factors than expected with the normal operation of a skid steer. Finally, I also accept the worker’s evidence provides a more thorough explanation as to the terrain over which both machines were operated. The significant question is therefore whether based on the worker’s evidence I am to conclude the employment exposure was a significant contributing or causal factor in the development or progression of the lumbar spine degenerative disc disease.
In reviewing the occupational hygienist report and considering the equipment for which the employer provided vibration monitoring data I note the hygienist accepted this equipment could closely match the equipment the worker used. Based on my understanding of the equipment measured and skid steer operation I would accept this opinion based on the equipment being operated in similar environments (i.e. over similar surfaces). However, based on the available evidence and my understanding of the work environment I consider the evidence to suggest the actual duties performed by the worker would have significantly exceeded the levels reported for the other pieces of equipment. In this respect I accept it is probable the worker experienced significantly greater vibratory exposure than indicated in the MOL testing.
While I recognize the age of the worker and the onset of degenerative changes are consistent with normally expected aspects of the aging process I note the timing of the onset of degenerative changes and lumbar spine complaints correlates closely with the period of exposure.
While recognizing the scientific literature is far from exact in determining the correlation between degenerative changes in the spine and vibratory exposure I find the evidence in this instance confirms the presence of what I accept are significant postural and motion induced risk factors for a lumbar spine injury. Based on this interpretation of the evidence I accept it is appropriate to conclude the workplace exposure was a significant contributing and causal factor in the development of the lumbar spine complaints. For these reasons I accept lumbar spine entitlement is in order.
CONCLUSION
The operations division is directed to arrange a NEL assessment for the lumbar spine. The MMR date may be established based on the May 16, 2007 reporting from St. Michael’s hospital.
The worker’s objection is allowed.
DATED June 10, 2010
M. Evans
Appeals Resolution Officer
Appeals Branch