WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100132
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: July 20, 2010
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
ISSUE
Initial entitlement.
HOW THE ISSUE ARISES
On February 17, 2008, this professional truck driver fell while walking on boulders outside of a coffee shop and injured his mid low back, right hip and buttock.
The worker sought treatment with his chiropractor on June 20, 2008 and was diagnosed with a lumbosacral sprain/strain.
In a letter dated July 22, 2008, the decision-maker advised that because medical treatment was not sought until June 2008, a personal injury arising from the incident could not be established and consequently initial entitlement was denied.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Documents:
15-02-01 – Definition of an Accident
15-02-02 – Accident in the Course of Employment
EXHIBITS
Exhibit 1: Chiropractor’s report
Exhibit 2: Record of Medication from Pharmacy
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I reviewed all the fine information, including the following file documentation.
File Documentation
On July 11, 2008, the worker sought treatment with his family doctor and a Functional Abilities Form (FAF) was completed. Physical limitations were provided which included: limit walking up to 100 metres, no sitting more than 30 minutes, no lifting more than 5 kilograms, no lifting from waist to shoulder more than 5 kilograms, no stair climbing more than 5 to 10 steps, and limited bending and twisting.
The chiropractor completed a Program of Care Initial Assessment Report dated July 11, 2008. The accident history noted was a fall after slipping on ice when exiting his truck. The worker’s pain progressed and was aggravated by driving. The worker had severe lumbosacral pain during sitting, standing, bending, twisting and lifting. The chiropractor noted the worker had previous episodes of low back pain, which were rare, three in the past five years and resolved quickly.
The worker’s family doctor submitted a computer printout of his treatment on July 7, 2008. It was noted the worker had low back pain for three weeks and pain into his right hip. The original injury occurred on February 17, 2008, when he fell out of his truck.
The worker had a CT scan completed on August 11, 2008. The CT scan showed the lumbar spine from T12 to S1 and there was mild scoliosis of the dorsal lumbar spine convexed at the right maximal at the thoracal lumbar junction. The bony window demonstrated small shmorl’s nodes at L1-2-3. At the T12-L1, L1 to L2, L2 to L3, and L3 to L4, the disc spaces were normal and at the L4 level there was some central disc bulging which flattened the anterior aspect of the thecal sac, but there was no disc herniation and minimal compromise of the spinal canal or exiting nerve roots. The impression of the CT scan was there was disc bulging at L4-5 and
L5-S1 but only mild compromises of spinal canal or exiting nerve roots. There was no abnormality to explain the patient’s right radiculopathy.
The worker was assessed by Dr. Billing (pain clinic) on October 30, 2008. The specialist noted that the worker was a truck driver and fell down at work about four months ago and now had low back and bilateral leg pain. The pain was more severe on the right compared to the left. The worker noted to the specialist that he was taking street drugs, because he was not getting enough opium medication from his family doctor and he was taking Oxycontin and Oxycocet and he also tried marijuana and cocaine, but did not use these drugs any longer. The worker had an MRI of the lumbar and the MRI showed bulging at the disc at L4-5 and L5-S1, but only compromises of the spinal canal or the exiting nerve roots. The specialist noted the worker was physically unfit at 6 feet 1 inch and 350 pounds; he was grossly overweight. The worker was told to lose some weight. The differential diagnosis was lumbar disc disease, bilateral sciatica more severe on the right compared to the left and secondary spasm of the paraspinal musculature in the lumbar area, cervical degenerative disc disease (DDD), osteoarthritis of the cervical spine, myofascial pain in the right shoulder.
Worker’s Testimony
The worker testified that he began working as a truck driver with the injury employer in
July 2007.
The worker testified that he started to work ten years ago as a truck driver, and prior to that worked in a factory environment. The worker had been working since he was 15 years old.
The worker testified that he had no back pain prior to the February 2008 injury, and did not lose any time from work or take medication for any previous injuries.
The worker testified that prior to working in the long-haul business, he worked for approximately six months in short-haul.
The worker stated that for the past seven years he worked as a long-haul truck driver, driving from coast to coast.
The worker stated that prior to any drive the following pre-trip activities were completed: inspection, pinning, and checking to ensure the height of the truck was correct. Pre-trip inspections involved walking around the truck to ensure it was safe to drive.
The worker testified that as a long-haul truck driver you must take eight hours off in a 24 hour period to sleep.
The worker testified that when he first started driving a truck, he was between 200 and 300 pounds. His current weight is now 480 pounds.
The worker testified that he was diagnosed with a thyroid problem ten years ago, and his thyroid was “killed”. After that he began to put on significant weight.
The worker testified that in November 2007 he sought treatment with a chiropractor for neck and shoulder pain which he attributed to driving, and also to get circulation back in his legs.
The worker testified that he has been going to a chiropractor for 15 years for routine adjustments for the neck and shoulder problems.
The worker testified that he had gone to chiropractor for 3 adjustments prior to the accident.
The worker testified that he does not take any medication for his back, but does take medication for thyroid and heartburn problems.
The worker stated that in a normal week/month as a truck driver he would arrive in the truck yard at approximately 8:30 pm for a midnight leave on a Friday night. The truck would be loaded and a pre-trip inspection would be completed. The worker testified that he always worked with a co-worker and they rotated every six hours (driving) on the trip out to Vancouver. They would arrive in Vancouver on a Monday, and on a Tuesday night they would leave again to return to Ontario. The worker testified that they would usually arrive on a Friday morning, but that would be dependent upon weather, it could be a Saturday morning.
The worker testified that his wife would arrange appointments for him with the chiropractor, when he was back in town on a Friday.
On the morning of the work injury, approximately 4 am, the worker testified that they were doing a regular switch and had stopped at Swift Current, Saskatchewan, at a Tim Horton’s when his foot slipped on the ground and he landed on some boulders. The worker testified that he was shaken up and was patting himself to determine if anything was broken and he felt a little tender and went to the washroom and then got back into the truck.
The worker testified that had they been closer to Ontario, he would have sought medical treatment, but he was unsure how the health care system worked in Saskatchewan and to avoid costs involved in seeking treatment, he chose not to do so.
The worker testified that they played with the log books and arrived in Vancouver on a Monday and his co-worker called in to his boss and let them know what had happened with respect to the fall and how the run went.
The worker testified that his boss called him after his boss had spoken to the co-workers. The worker stated that his boss asked him if he fell and a Workplace Safety and Insurance Board (WSIB) report was completed.
The worker testified that he only took on about four hours (as opposed to his normal 6 hrs) of driving for a few weeks following the accident. The worker testified that when he was in Toronto, he went to several different Shopper’s Drug Marts to obtain a bottle of Tylenol 1, which can be requested over the counter. The worker testified that he does not recall how many he took. The worker testified that there are many Shopper’s Drug Marts around and he went around to several pharmacies and gathered up the medication.
The worker testified that he has worked with his co-worker for four to five years and they work well together, and his co-worker picked up the slack when he could no longer drive.
The worker testified that on the odd Fridays, he would arrive home and would take some of his wife’s medication, which she had prescribed to her for her back problem and he would take Percocet before he went to sleep in the truck.
The worker stated that he saw his family doctor a week before he saw the chiropractor and was prescribed muscle relaxants; however they were not helpful.
The worker described his family doctor as “a quack”.
The worker testified that he was taking up to 600 Tylenol 1 to manage his back pain. The worker described his back pain as in the low back and hip area and going into his toes and up to his shoulder.
The worker testified that in September 2008 he began to receive injections from a specialist and at that time, he started to put on more weight. The worker testified that he has gained approximately 200 pounds since the injury, and has not worked at all.
The worker testified that when his WSIB claim was denied, the modified work that he was doing was taken away. The worker testified that he did modified work from home for a week.
The worker testified that he is no longer allowed to drive more than one-half hour daily. The worker testified that he hardly drives at all and his family doctor has pulled is A licence.
The worker testified that he is taking the following medication:
Aspirin – for his heart problems
stomach pills
Sotolopram – for depression
Hydromorphine
thyroid medication
Metamorphin – for diabetes
Oxypam
Rapezopole – for his stomach
The worker testified that since the injury he has been collecting Ontario Disability payments of $600 monthly and Canada Disability Pension Benefits of $1,000 monthly.
The worker testified that prior to the injury he was earning approximately $1,600 per week.
The worker testified that following the original accident in February 2008 he did not seek treatment with a doctor, because he did not have time to go to a doctor. The worker testified that he would get medication from his wife.
The worker testified that his grandfather had died just prior to the injury, and he had to get a loan to pay for his funeral expenses and he needed the money and could not afford to take time off.
The worker testified that he did not smoke pot prior to the injury. He had a joint with his wife to determine if in fact it would assist in relieving his back pain.
The worker indicated that he previously had taken Hydromorphine but he is no longer taking this medication.
The worker testified that he also tried cocaine to determine if it would alleviate the pain; however, he did not find this helpful. The worker described his health as good prior to the injury.
The worker testified that he is a diabetic and must be careful not to overindulge and he is currently now taking insulin.
The worker testified that he does not have a lot of confidence in his family doctor, and he has not seen his chiropractor for awhile. He is currently seeing a gastric surgeon and a breathing specialist. The worker testified that he cannot get an operation for his back until he loses some weight. The worker testified he has not seen a specialist who has recommended a back operation. His family doctor suggested this to him but he must lose weight prior to any surgery.
The worker testified that prior to the back injury the highest weight he had gained was approximately 400 pounds.
The worker testified that he previously took Tylenol 1 for headaches but did not take them when he was doing trucking runs over the border as he must take an alcohol or drug test prior to crossing the border into the United States.
The worker described his use of Tylenol 3 as occasional for headaches and neck pain if he twisted the wrong way.
The worker testified that he would sometimes hit potholes or rocks and felt back pain.
The worker testified that his condition got worse and worse; he managed with medication but had difficulty getting up and down the truck. The worker testified that he has low back pain and hip pain on the right side.
The worker testified that he essentially sits down, lies down and watches TV during the day now and does what he can to keep himself comfortable.
Workplace Party Submissions
The worker’s representative argued that the worker’s co-worker’s statement should be given significant weight.
The worker’s representative suggested that there were no other intervening events and in the absence of any further evidence and the fact that the employer was aware, continuity has been established and entitlement should be allowed.
The worker’s representative argued that continuity was established by the fact that the worker took a lot of medication and had assistance from a co-worker performing the trucking runs.
With respect to the compatibility of the diagnosis with the accident history, the two medical opinions on file did not provide any explanation as to why the injury is not work related and what would be expected from a fall? If a sprain or strain is not expected, then what would be a reasonable explanation as an injury arising from such a fall?
The worker’s representative argued that an accident did occur and the diagnosis is compatible and continuity of complaint is equivalent to the continuity of medical treatment sought and consequently entitlement should be allowed with applicable benefits.
The employer’s representative argued that the decision-maker must apply the five point check system. The two medical opinions provided by the senior medical consultants cannot be disregarded although they did not indicate what would be reasonably expected from such an accident. It is not the medical consultant’s job to determine the cause of the worker’s pain but rather to determine if the worker’s diagnosis is compatible with the accident history provided.
The employer’s representative argued that there is no medical documentation provided to indicate that the diagnosis is compatible with the accident history. There is no medical information provided to rebut the medical opinions that are currently on file.
The employer’s representative argued that the worker’s problems are not related to a work injury in February 2008 but are attributable to the worker’s weight challenges which have fluctuated prior to the injury and his condition continues to worsen.
The worker’s representative argued that entitlement on an aggravation basis cannot be accepted as the worker cannot have it both ways as the worker has had no history of back pain.
The worker’s representative argued that the case cannot be ‘rubber stamped’. The decision-maker must adjudicate the claim based on the available evidence and weigh the evidence. If the senior medical consultant’s opinions are the only evidence that is taken into consideration, this is not consistent with the Act in the merits and justice of a case. The decision-maker is required by law to weigh the evidence.
Analysis
In order to accept entitlement to a work injury, proof of injury must be established. Proof of injury is established by reviewing all the information surround the injury including:
the injury history,
the onset of symptoms,
medical treatment,
lost time,
witnesses, and
the reporting of the injury.
It is also necessary to examine any delays or discrepancies related to the above.
In my determination of initial entitlement, I reviewed the record, evidence, submissions, and policy.
In my view, the worker’s current problems are unrelated to the original accident and injury on February 17, 2008 for the following reasons:
The worker fell on February 17, 2008 on his right hip. The worker continued to work and did not seek medical treatment until June 20, 2008. The reasons for the delay, as noted by the worker are that he did not have time to go to the doctor. Although the worker testified that he did not have time to go to the doctor, I am unable to reconcile how he spent a significant amount of time obtaining medication from Shopper’s Drug Marts to manage his pain symptoms yet he did not have time to seek medical treatment.
The worker representative argued that the co-worker’s statement established continuity and should be afforded significant weight. The co-worker stated that the worker did not seek treatment immediately because of the amount of time that they were working. When they did have an opportunity to get home the worker took his wife’s Percocet, but at the end the worker could not finish a shift and had to lay down to stretch out and was taking up to 600 Tylenol 1’s to manage his pain. This statement is congruent with the worker’s testimony that he did not seek treatment immediately, because of the amount of time that he was working. I am still unable to reconcile that the pain was so disabling and required so significant amount of medication to manage the pain and a great deal of effort to obtain the pain killers yet the worker chose not to seek treatment. The worker testified that he had been working as a truck driver for 7 years and had previously taken time to receive treatment with the chiropractor, yet this time chose to manage his pain solely by the use of medication. The worker did not make complaints even to his employer. I do not afford significant weight to the co-worker’s statement because there is a lack of any other supporting evidence either medical or not, to establish continuity.
When the worker sought treatment with the family doctor, he noted that the worker complained of having pain for the previous three weeks, which suggests to me that the development of the pain was more in keeping with the June 20, 2008 visit to the chiropractor rather than the previous months following the February 17, 2008 fall.
There are two medical opinions provided on file that indicate that the worker’s current problems are not related to a fall in February 2008. Although the worker’s representative requested that little weight be provided to these medical opinions, I cannot find any reason to disregard these medical opinions as there is no other compelling medical evidence to indicate that the worker’s current problems are a result of the fall of February 2008. There is no explanation provided by any of the treating physicians that establishes a causal relationship between the fall of February 17, 2008 and the worker’s current problems.
The worker testified that he has a significant weight problem. His weight has fluctuated prior to the injury and has increased since he laid off work. There is an absence of any compelling medical evidence to indicate that the worker’s fall of February 17, 2008 resulted in an injury that was so substantial that he is now disabled from work.
The balance of evidence supports that the worker did not suffer a personal injury arising out of and in the course of his employment on February 17, 2008 and consequently initial entitlement is denied. The denial of initial entitlement was correctly determined by the Operating Area.
CONCLUSION
Initial entitlement is denied. The worker did not suffer a personal injury arising out of and in the course of employment on February 17, 2008.
The worker’s objection is denied.
Dated: July 30, 2010
P. Jones
Appeals Resolution Officer
Appeals Branch