Worker v. Employer, 2010 CanLII 50944

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

DECISION NUMBER: 20100104

OBJECTION BY: The Worker

EMPLOYER: Participating

REPRESENTATIVES: Worker Representative, Employer Representative

HEARING DATE: August 24, 2010

ATTENDEES: Worker, Worker Representative, Employer, Employer Representative

The worker objects to the denial of ongoing entitlement subsequent to a claimed recurrence of December 7, 2007 as it was determined there is no entitlement for the low back.

HOW THE ISSUE ARISES

On September 16, 2005, the worker was riding on the lowest step of a locomotive when it came into contact with a rail car and he got caught in the middle. He sustained several injuries and was seen at the emergency room where he complained of left knee, right buttock and right elbow pain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. The worker returned to modified work at regular wages on October 3, 2005.

On March 16, 2006, the worker contacted the WSIB offices indicating that he was still having problems with his knee. At that time, he was working regular duties for four hours per day and modified duties the rest of the day. He was referred to the Sunnybrook knee program on May 5, 2006. He was provided with restrictions for four to six weeks following which he was to resume regular duties. He did so on July 7, 2006.

He contacted the WSIB offices on November 4, 2008 indicating he had a recurrence on December 7, 2007 as a result of low back problems which he was attributing to the incident of September 16, 2005. Medical documentation was submitted however in a letter of June 3, 2009, entitlement to benefits subsequent to the claimed recurrence was denied as it was not accepted that the worker’s back problems were attributed to the initial injuries sustained in this case. The worker objected to the adverse decision made and his file was referred to the Appeals Branch for consideration.

AUTHORITY

15-03-01 – Recurrences

ASSESSMENT OF THE EVIDENCE

Worker Testimony:

On September 16, 2005, he was at Brampton Intermodal Terminal. It was the last move of the day. He had to take the engine he was working with and put it on a clear track and leave it for the night. When he was going down the track, he could see that there were rail cats past the track he had to go. There was a five-pack. The intermodal cars are like a cradle about 4 ½ feet high from the ground and they are used to take transport tracks and put them inside of them. The track that had cars in them also had a blue flag up meaning there were people working on the track. He was therefore blocked out of the track. He was lined for his track and he was operating with a belt pack which is a remote control box that you wear on a vest to control the engine. He was on the lead locomotive standing on the ladder with his arms hooked into the ladder and controlling the belt pack. There was no locomotive engineer that day. As he was standing on the rungs of the ladder, he was reviewing paperwork and when he looked up to see where he was going to jump off, he noticed the cars that were on the track beside he had to go into were foul of the track he had to go into. The cars in one track were too far and were overlapping the track he had to go into. When he realized, he put the engine into emergency using the belt pack vest and his options were to either throw himself off or pull himself in. He pulled himself in and he got squished and rolled between the cars. He spun, rolled along the engine and was thrown up onto the cars. The five-pack he hit has hand rails and this is the brunt of where he hit. The hand rails are very sturdy and after his accident, they were bent over. He was thrown on top of the grates and braking system at the end of the car. He had immediate pain. The first thing he did was he looked down. He had a light pair of track pants under a pair of overalls. He saw blood coming through his overalls. He then reached for his radio which he had in a pouch at the front of his vest, but it had been tossed. It was dangling on the edge of the car. He pulled himself to it and called for help. The left side of his body impacted first and as he was getting rolled, all he could hear was cracking and he got hit all over.

He could not walk for at least a week after the initial injury. His left leg was so swollen that it was swollen straight. He could not even bend it to walk. His left upper thigh was really swollen. He had about a plate sized bruise on his right buttock and from the middle of his waist down, he had cuts and bruises and a couple of cuts on his elbow.

He was referred to the emergency report of September 16, 2005. He confirmed the areas mentioned were the main areas of complaint. That day, he was in a lot of pain and there was pain in his back then but it wasn’t anything compared to his leg, which was really bad. He was released from the hospital that day. His parents drove him home at about 11:00 p.m. He was unable to walk and his father had to carry him into the house. He could not do anything. Sitting was difficult as his knee was so swollen. It was uncomfortable to sleep because of his left leg and right buttock pain. His elbows were cut so even pushing himself out of bed was painful. He was referred to the FAF of September 16, 2005 that mentioned the left knee and right elbow. He was asked why there would not have been mention of the back. At that time, the doctor told him he was okay to return to work and he was very frustrated because of the pain he was in. He even needed stitches in his elbow and did not even stay for that because of the frustration he felt. The back problems were there but they were nothing compared to his legs. He was referred to the two form 8’s and agrees that at the time the areas checked were the significant injuries. He could not move or walk and he had soreness in his back but he did not consider it anything serious enough to look into at the time.

By the time he was referred for physiotherapy, his elbows were no longer a concern. His right hip was worse than his left hip. He does not know why the left hip was included in the reporting at that time.

He recalls talking to his family doctor when he first saw him after the accident and his back pain at that time would not have been as bad as his legs. There was no documentation of broken bones. He was asked why the low back would not have been mentioned on any reports. He indicated that because his leg was so bad, he did not even clue in that he had a back problem. He had stiffness and tightness which he felt was from laying around a lot but there was no sharp pain so he did not even clue in that there was an actual injury. In 2007, he had sharp pain but in 2005, he just had tightness and his back was stiff. He denies any prior back problems before September, 2005. He had numerous sporting injuries with fingers and wrist and a dislocated jaw but nothing with his legs or back. When he went for physiotherapy, the treatment consisted of riding a stationary bike, electroshock therapy, minimal massage therapy on the leg and all the treatment focused on the leg, including ultrasound. At the time, walking more than 15 minutes or so would cause a lot of pain in his leg. Riding the stationary bike would be painful as well.

He returned to modified duties after about a month and had modified duties for approximately nine months after that until he resumed full duties. Initially, he started working out of his father’s office, who works with the same employer as well, doing paper work and office duties. After that, he returned to his department, getting into a truck and taking a crew somewhere if they needed a drive. Getting in and out of vehicles was bad because he still had problems bending his leg. The drive was uncomfortable and even sitting in a chair in the office was uncomfortable. He resumed his full duties and hours in the summer of 2006. Between September, 2005 and July, 2006, he did have back problems too but he never associated them to an actual injury. He would constantly find himself stopping to bend over and stretch his back. There were back issues but nothing he thought he had to get looked at. When he resumed full duties, he returned to his pre-injury job. He continued with problems with his leg. His back still bothered him as well but he tried to work through it. There would be days where the pain was really bad and others where he was fine. On the days it was bad, he would try and take a rest and get through it. On the days that were bad, the areas of the body that were painful were the leg, knee and back. He would book off sick for a week and these times were for his back because it was bothering him so much but at that point, he did not think it was an actual serious injury, just tightness and stiffness. He did not seek medical attention at that time. He has never been big on going to the doctors or taking any medication. For his back, once it started getting better, he would just return to work. He does not recall if the employer asked for any medical notes when he went off sick.

His regular job included a lot of walking on a typical day. He would walk on slag (uneven ground), going up and down off box cars while moving. There is occasional heavy lifting up to maybe 50 pounds.

On December 7, 2007, he got called for a morning shift. He had two hours notice. He went to start his car. There was a dusting of snow on the car. He dusted the windshield and he tweaked his back. This had occurred in the past so he thought nothing of it but that day, the pain progressed throughout the course of the day. He went home after work and took a hot shower. His back tightened up and the pain increased, causing him to curl into a ball. He was asked about an incident in September, 2007. He advised this may have been a time when his employer asked him for a medical note. He does not recall exactly when he booked off for his back but this may have been a time where had had been off for his back. He was receiving massage therapy before December, 2007 for tightness. He would go on a whim whenever he had more pain but the massages did not help a lot. He would go just to try to help it any way he could. He does not recall doing anything different at work prior to December 7, 2007. He was not doing any extra heavy lifting or anything like that. From the time the worker started working with the employer in August, 2004, he has not committed to any sports teams because of time. He denies ever seeking medical attention for his back before September, 2007. His work record would show periods of a week or five days off or so and these would have been because of his back. When he went to his doctor, he felt his doctor was not taking him seriously. He was just told to go back to work and a CT Scan would be arranged. He went in for the scan and they told him it would be a week before the results came out but by the next morning, the doctor called him in a panic telling him not to return to work because he had two herniated discs in his back.

In the past when he would ‘tweak’ his back, he didn’t even think he had an actual injury as everyone tweaks their backs and you stay off and it gets better. In December 2007 however, it was really bad. He was off work from December, 2007 and did not return to work until March, 2010. He had physiotherapy for a few months but it did not help. He also had massage therapy, acupuncture and electroshock therapy and none of it helped. It was not until he went to York County Physiotherapy that he started seeing results and this was just before the new year (late 2009). He had a Functional Abilities assessment done. He is back on full duties but he is not performing his pre-injury job. He is working north of Sudbury and instead of using the belt pack and doing a lot of walking, he does more long haul work where he gets on a train and takes it over a long distance. There are times where the demands are the same physically, but it is not as constant. There is a lot of sitting (up to 12 hours on a train). In his whole life, he has never had an injury like he did in 2005 and all his treating physicians advised him that when he swept the snow off the windshield in 2007, this was the ‘straw’ that broke the camel’s back and the original injury was in 2005. He was advised that if you have a trauma, the film around the disc can partially tear and will hold like that until it fully falls off, and this is what occurred in 2007. His family doctor, Dr. Malcolm and his physiotherapists have provided the same opinion re causality. They have based this opinion on the history as he has provided here today.

He was never assessed with a permanent disability following the 2005 injury. He was asked why the emergency report would have indicated there was no back pain. He noted that by the time he got to the hospital, he hadn’t done any walking. He does not really remember a lot of what happened at the hospital. He arrived at 5:00 and was given pain medication at 10:00 and he does not know how accurate anything on the report would have been.

On December 7, 2007, he was parked across the bottom of the driveway. The door that was facing him was the passenger door. He opened that one, got the brush out from the floor while he turned his car on and did a quick dusting. He was reaching across the windshield. The car is a normal four-door car. His driveway is completely flat. He did not have to shovel the driveway. He plays sports recreationally here and there but has not played in any leagues, as he did before he was hired by the employer. He plays basketball or tennis occasionally. He does not golf. After he returned to work in July, 2006, he does not recall whether or not he played any sports. He is sure he would have played something recreationally but not consistently. He has not taken pilates. He has been trying to lose weight and is down approximately 20 pounds. He walks a lot outside and tries to eat healthier. His new job is unrelated to his injuries. He applied for another job and was successful in obtaining it. In approximately September, 2007, he thinks he may have had an x-ray of his back. When he was asked if there were episodes of similar back pain, he indicated no as he had only had tightness in the past, not the sharp pain he experienced on December 7, 2007.

Closing Statements:

In closing, the worker’s representative noted that the worker testified that at the time of accident, he was caught between the locomotive and the rail car and this caused him to roll. He impacted with the grab iron on the other rail car and there were severe soft tissue injuries. There is a lack of medical documentation relating to the back but extensive soft tissue injuries were reported. The worker testified that there was tightness that he had not felt prior to 2005 but the leg and the knee was the predominant area of injury and continued to remain so. The back bothered him but it was not bad enough to seek medical attention. The worker went to see an orthopaedic surgeon in December, 2005 and there was focus on the knee. The back condition was not symptomatic enough for the worker to seek medical treatment while the treating physicians were dealing with the severe condition of the leg. The worker resumed full duties around the summer of 2006, performing a physically demanding job, climbing ladders and walking on uneven ground. There were times when he had to book off because of the back pain. He did not seek medical treatment, but the worker is not the type to see the doctor and he tried to deal with it on his own. When he was sweeping the snow on December 7, 2007, he felt a tweak. He felt he could work and he did but the pain got worse and he was eventually diagnosed with two herniated discs. The worker is young. He should not have degenerative changes and she argued the culminating factor at the time of the December 2007 layoff was a result of the initial injury.

She maintained the worker never had a back injury prior to September, 2005. He was required to take time off work for his back between July, 2006 and December, 2007. He did have a Functional Abilities Evaluation done and the physiotherapy he eventually received helped him to the point where he was able to resume his full duties. Great West Life referred the worker to Dr. Malcolm and his report of September 2, 2009 is consistent with the worker’s testimony and noted that the L4-5 disc would have been responsible for the back pain. The doctor felt that the worker’s current symptoms were attributed to the work incident of 2005. While Dr. Malcolm examined the worker quite some time after 2005, various medical professionals before him believed the herniated discs were most likely caused by the 2005 injury.

Based on this evidence, they believe the December 7, 2007 layoff from work and his lost time until March 10, 2010 were related to the initial injuries sustained and requested loss of earnings benefits be paid for this time period minus the Great West Life benefits paid to him during that time.

The employer’s representative on the other hand argued the file ‘screams’ with evidence and it is not consistent with the worker’s testimony. She noted the most accurate and truthful information is the information provided by the hospital. If this were a situation where nothing but the knee was mentioned, one could argue that there was focus on the greatest area of injury however there were other areas of injury mentioned but the back was not. If there were tightness, she maintains this would have been reported. There was no ongoing medical information relating to the back. The knee fully resolved and there was no mention of the back up until that time. She argues the worker could not have worked regular duties had he herniated his discs back then. She challenges the worker’s allegation that he took time off work for his back and maintained that if he took time off, he would have made a claim and sought medical information and spoken with his employer or union. She therefore questioned the worker’s credibility on this basis. She noted the Royal Victoria report mentions the knee, but does not mention the back. She argued the fact that the emergency report notes there is zero back pain is telling.

The worker continued with work with no flare-ups and there was an incident in December, 2007. On this day, the worker reached into the car from the passenger side, turned the car on then he grabbed the brush and stood on the passenger side while clearing off the car. This is not what people normally do. There was an awkward motion and this caused immediate pain. The pain progressed and the only factor leading to the pain was the incident of December 7, 2007 and she argued that this in fact could have led to his back pain. The exam also noted he was de-conditioned at that time. The snow clearing was a specific act that was not work-related and the fact that he was de-conditioned was a personal situation, also not work-related.

She suggested that the worker’s reporting of managing sports injuries in the past to Dr. Malcolm would suggest that he may have been managing back problems, as one would not ‘manage’ finger or hand injuries as the worker testified to, and she argued this would not make sense. She noted the worker did in fact participate in sports activities following his return to work in 2006. She argued the objective facts are clear. The worker sustained an injury while brushing off his car. This was not work-related and did not happen as a result of the 2005 situation. She argued the medical opinions provided by Dr. Schutz and Dr. Malcolm are not supported by the medical evidence. She feels the sweeping of the car was downplayed and argues that it was in fact this action that caused the worker’s excruciating pain. She felt the IME opinion is flawed as it was based on the worker’s history which she maintained is also flawed.

She noted the worker never herniated his discs prior to the home incident of December 7, 2007 as he would never have been performing his regular duties prior to this if he had. She maintained if there were any problems, they were likely related to sports. There was nothing reported with respect to the back as they submit, nothing happened. She maintains the decision made was a fair one and while it is convenient to link all problems to a work related injury, this does not make it so. There was no medical documentation related to the low back prior to 2007 and all the reports prior to this were leg-related. The worker was reported to have minor degenerative changes but this is not unreasonable given the fact that many young people are involved in sports. She noted that even in the family doctor’s paperwork relating to the low back, the worker’s back problems were not linked to a work accident. Given the lack of continuity of complaint and the lack of medical continuity, she maintained it is clear the worker developed a spontaneous onset of back pain attributed to the home incident. The back problems worsened from this point. Prior to this, the worker never contacted the WSIB to indicate he was continuing to lose time and they feel the decision should remain.

In response, the worker’s representative argued that if sweeping off a windshield could have caused a disc herniation, half the population would have one. She doubts this could have caused it. The reason why the worker did not perform any modified duties subsequent to December, 2007 is because there were none available, not because he could not return. She argued that the main issue is credibility. She feels the worker was in fact credible. He gave testimony under oath and they take offence to the employer’s submissions. The worker is being totally honest and it is one thing to say the evidence is not on file and another to say he is not credible. With respect to the comments made regarding Dr. Malcolm’s report and the worker’s prior sports related injuries, she noted that it cannot be assumed that the worker had sports injuries to his back.

Decision:

I have considered all of the evidence pertaining to this case. In doing so, I would have to confirm the denial of entitlement for the low back and the worker’s recurrence of December 7, 2007. The reasons are as follows:

• At the time of injury on September 16, 2005, the worker sought medical attention at the hospital and although various areas of injury were mentioned, it was specifically noted that there was no back pain. As such, there is no evidence whatsoever of any back injury occurring at the time of accident;
• Although the worker testified that he continued with back stiffness, there is no confirmation of same. He noted that at times he would take up to a week off because of back pain but there is no corroborating documentation. The worker indicated that he did not seek medical attention during these times as he did not think it was serious. However, it there is something that prevents one from working for up to a week at a time, on more than one occasion, it does not seem reasonable that a worker would not see a doctor about this;
• There is no mention of the back from 2005 until 2007. There is also no continuity of complaint during this time period and the worker was able to resume his regular duties;
• The worker saw Dr. Schutz on June 23, 2008 who noted the worker had spontaneous back pain in September, 2007. This would suggest that the onset just came on at that time without evidence of ongoing problems;
• The worker had an acute onset of back pain on December 7, 2007 while at home brushing snow off his windshield. It was this incident that caused the worker to seek medical treatment, undergo further investigation and lose time from work;
• The claim file was reviewed by a WSIB Medical Consultant on June 1, 2009 who provided the opinion that the worker’s back problems were not related to the initial injuries sustained on September 16, 2005. While Dr. Malcolm provides a contradictory opinion, because the Medical Consultant had the complete history of this case – both medical and otherwise, I accept the opinion of the Medical Consultant over that of Dr. Malcolm.

When considering the fact that there is no evidence of an initial back injury, there is no continuity of complaint, nor medical continuity and the worker had an onset of acute back pain following a specific incident at home on December 7, 2007, I am unable to grant entitlement for the recurrence of December 7, 2007 as I am unable to relate the worker’s back problems to the initial injuries sustained on September 16, 2005.

CONCLUSION

Based on the facts outlined in this case, I am confirming the decision to deny the recurrence of December 7, 2007 as I am unable to relate the worker’s back problems to the initial injuries sustained on September 16, 2005.

The worker’s objection is denied.

DATED August 26, 2010

S. Marangoni Appeals Resolution Officer Appeals Branch