WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100111
OBJECTION BY: Employer
WORKER: Participating
HEARING DATE: July 8, 2010
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
ISSUES
The issues in dispute are the initial entitlement and the payment of loss of earnings (LOE) benefits from March 28, 2009 to March 31, 2009, and healthcare.
HOW THE ISSUES ARISE
This claim was established on the basis of a Health Professional’s Report (Form 8) for treatment administered on March 30, 2009. The family doctor advised that due to bending and picking eggs, the worker developed an onset of pain over the course of one month and diagnosed a low-back and joint strain. Suitable work was authorized.
Also received on the claim-file, was a Worker’s Report of Injury/Disease (Form 6) completed on April 8, 2009, advising that on March 27, 2009 the 21-year old lead hand reported an injury to his low back due to repetitive bending and lifting. It was reported that the onset occurred over one month and that the worker kept working until he could hardly walk.
Also received on file, was an Employer’s Report of Injury/Disease (Form 7) providing a reporting layoff date of March 27, 2009. However, the report completed by Ms. Julie Kennedy, on April 3, 2009, also reported that the worker did not know the cause of his injury and that the reporting of the incident was first made after the worker had a day off work. The worker said that he awoke with pain. The Form 7 also describes the worker’s onset of pain as being sudden.
After obtaining statements from the worker and the employer and, after obtaining additional medical documentation, the Operating Area issued a decision of April 8, 2009. It noted that the worker claimed to have sustained a gradual onset of back pain over approximately one month with an incident history of repetitive bending while retrieving eggs and catching birds. The worker had confirmed that suitable work had been offered by the employer on March 27, 2009, but that he had declined given his doctor orders to remain off work for two to three days. It is also noted that the worker returned to suitable work by March 31, 2009 and that the medical record supported that the impairment sustained by the worker was compatible with the incident history of repetitive bending. As a result, entitlement was extended and LOE benefits were paid for the period of March 28, 2009, up to but not including, March 31, 2009. Healthcare was also accepted.
The employer has objected to this decision and the issue is now before the Appeals Branch (AB).
AUTHORITY
Workplace Safety and Insurance Board Operational Policy Manual Documents (OPM):
- 11-01-01 – Adjudicative Process
- 15-02-01 – Definition of an Accident
- 15-02-02 – Accident in the Course of Employment
ASSESSMENT OF THE EVIDENCE
At the Hearing, the worker provided testimony under Oath in response to questioning from his representative and the appeals resolution officer (ARO).
It was the worker’s submission that he had been hired by the employer in September 2007 and moved from a part-time position to a full-time artificial insemination position. He worked at this for one year as well as becoming a lead hand and having occasional egg-picking duties. When he sustained an injury to his right hand, however, he was unable to continue with his regular duties in the artificial insemination position, and was provided suitable work, picking eggs. This, in the worker’s testimony, begins in approximately January 2009. The worker states he would have done this job for at least 40 hours per week, though sometimes more, and that he also maintained duties as a lead hand which he would perform on weekends. The job description of egg-picker as submitted to the claim-file by the employer was acknowledged by the worker and in his estimation, was considered to be accurate. He noted that he would be required to pick up eggs off the floor when they had been laid outside nests, and that he would also gather eggs off conveyor belts from nests located along the outside of the approximately 400‑foot long barn. He would also gather eggs from collection boxes from nests located in the center of the barn. Routinely, he would gather 1600 to 1800 eggs/ barn/eight hour shift. He was responsible for two barns. He also noted that the egg-production profile of a flock of birds follows a particular production rate. A fresh flock will gain in production over the first five weeks of its production cycle and then taper off gradually over the ensuing weeks. It was the worker’s testimony that the flock that he attended to in March 2009 was approximately 8 to 15 weeks old at the time of his impairment becoming acute on March 27, 2009.
In collecting eggs, the worker states that he would carry a basket and fill it until it held approximately 90 eggs. He would fill approximately 4 to 5 baskets in the course of an egg-picking routine. When full, the basket would weigh approximately 20-25 pounds. It was his submission that when picking floor eggs, or those eggs that were not contained on a conveyor belt but that had been laid outside a nest, he would be required to bend and then stand erect to move to the next egg. When collecting eggs from a conveyor belt or collection boxes the worker stated that he would be constantly bent over in this process.
The worker was questioned with respect to an egg gripper or lifter as was submitted by the employer in their submission of June 24, 2010. He stated that he was aware that a gripper was available but that the employer did not encourage its use. It was used primarily by those egg pickers who already had back conditions or were older and had difficulty bending. At the time that he had developed his back pain, the worker indicated that he avoided using the gripper because it slowed down the egg-picking process and was not as gentle on the egg as lifting it with a human hand. He therefore avoided using it then, though he says he uses one now.
With respect to the onset of his condition, the worker indicated that he first developed back pain after six to eight months of working in the artificial insemination job. He would have developed back pain approximately one time per week and this was when he was picking eggs coincidentally with his job. He did not have any back problems prior to this despite being active in sports, such as hockey, golf, and soccer.
In approximately February or March 2009, the worker advised that his back pain began to increase after he changed to full-time egg picking. He stated that the pain would increase gradually throughout late February and March 2009 from occasional to every day and finally to constantly and to be associated at first with egg picking but then with any bending activity. As the back pain would resolve in intervals, it was his hope that it would go away and so he avoided making any formal report or seeking medical attention until March 27, 2009. He testified he did this because he was uncertain as to how the company doctor would require him to treat the condition and he was worried he would be put on prolonged modified duties and therefore be prevented from returning to his regular employment. He noted that with the development of his back pain, his activities in hockey during the winter months of February and March 2009 were eliminated. Similarly, he has not been able to play golf or soccer.
He noted that he lives with his mother who is a nurse and who helps with his care.
With respect to the reporting of his condition, he stated that he was regularly communicating the development of his condition to his supervisor, throughout the month of March 2009. Other farm employees were also aware, including, as per his Form 6, Anna who was a grader and helped him with the contents of his Form 6. He noted that when he spoke to his supervisor about his back pain, she would tell him to take it easy to see how it would go. However, following a day off, on March 26, 2009, the worker found that he had difficulty walking. Consequently, he told his supervisor that treatment was necessary and so this was considered to be the formal reporting of his injury to the employer.
With respect to the Form 7 stating that the worker was unaware of what caused his injury, he stated that this was not true. Furthermore, he denied having any knowledge of who the author of the Form 7 was.
He states that when he saw the doctor in the emergency room, he told them of the pain and that it was caused by work. He consistently denied that the pain developed initially on March 27, 2009 and is unaware of how his physiotherapist might have come to this conclusion in the report she completed on April 9, 2009. He confirmed that he told her that he developed acute pain on March 27, 2009 and that it was related to lifting eggs at work. However, he never made it a point of telling her that it was a specific lift.
With respect to his declination of suitable work on March 27, 2009, he confirms that there was an offer of employment made but that the particulars of this job, which would have been taken place over the weekend, were not made clear. His regular employment as a lead hand on the weekend meant that he had to be available for any emergency and he did not believe that with the condition of his back that this would be appropriate work for him. Furthermore, his doctor had recommended that he take a couple of days off work and he elected to follow this advice. When he saw the locum for his family doctor on March 30, 2009, he was given restrictions and returned to work providing these to his employer.
With respect to his activities on March 26, 2009, the worker states that it was a scheduled day off in lieu of time worked on the weekend and that he did nothing strenuous. He stated specifically that he attempted to ease his back pain by spending time in a hot tub.
In their submissions, the employer representative states that as there was no witness to the worker’s injuries, there are no grounds to accept that it occurred in the course of employment. There is no provision in the Workplace Safety and Insurance Act (the Act) or in the WSIB policies that requires the witnessing of an injury to establish work-relatedness.
The employer also submits that there was no trauma, which resulted in the worker’s impairment, and therefore, there is no basis to extend entitlement. Workplace Safety and Insurance Board Operational Policy Document, 15-02-01 – Definition of an Accident, permits the extension of entitlement where disablement can be established. No traumatic event needs to be documented. There is indeed no trauma having been documented as the cause of the worker’s back strain. There is, however, consistent testimony from the worker as well as documentation in the medical record that the worker undertook a change of employment approximately two months prior to the development of his back impairment, and that this employment required prolonged and regular repetitive bending. There was a gradual onset of pain.
The employer submits on their Form 7, that the worker was unaware of what caused his injury. However, it is also noted, as per Memo 1 dated April 6, 2009, when contacted by the entitlement adjudicator by telephone, that there was no objection to the worker’s claim from the employer. The claim was allowed on the basis that the Form 8 indicated an incident history of repetitive bending at work.
In reviewing the diagnosis and the job description, it is reasonable to accept that the worker could have aggravated and strained his low back as a result of repetitive bending. The worker underwent a change in his employment duties and developed a repetitive strain injury which would be consistent with the parameters of a disablement entitlement. There is sufficient evidence that the worker’s impairment arose out of and in the course of his employment and consequently, I would accept entitlement was appropriately extended.
With respect to the worker’s entitlement to LOE benefits for the period of March 28, 2009 to March 31, 2009, the emergency-room doctor has clearly indicated on the Form 8 that lost time was authorized for two to three days as the worker was taking narcotic medications preventing the safe operation of a motor vehicle and active contact with farming machinery. I therefore confirm that the worker was totally disabled and the provision of suitable work was not in order for the period in question.
CONCLUSION
The worker has entitlement to a low-back injury as the result of a disablement effective March 27, 2009.
The worker has entitlement to LOE benefits for the period extended from March 28, 2009 to March 31, 2009.
The employer’s objections are denied.
DATED July 14, 2010
(Mr.) B. J. Martlin
Appeals Resolution Officer
Appeals Branch
/882588/ppg