WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100184

OBJECTION BY: Worker

EMPLOYER: Participating

HEARING DATE: November 24, 2010

ATTENDEES Worker, Worker Representative, Employer Employer Representative, Witness

ISSUE:

The worker requests entitlement for a cervical condition caused by the work duties.

HOW THE ISSUE ARISES:

On September 8, 2008 this then 58 year old worker reported a gradual onset of back, neck, right arm, right shoulder, right forearm, and right hand pain as a result of her working duties. At the time of injury the worker had been employed with Extendicare Canada Inc. as a personal support worker August 19, 1994. Pre- injury wages were reported as $18.84 per hour based on a 37.5 hour work week.

The worker sought medical attention on September 28, 2008 and was diagnosed with low back and cervical pain. On October 3, 2008 a CT scan showed evidence of mild to moderate chronic disc disease at the C5-6 and C6-7 levels. On October 20, 2008 the physiatrist provided a diagnosis of left C6 radiculopathy and ordered an MRI scan.

On December 10, 2008 the MRI scan confirmed disc herniations at the C3-4 and C6-7 levels.

The worker initially did not file a claim with the WSIB but went off on 18 weeks of short term disability benefits through the employers’ benefit plan and then 18 weeks of unemployment insurance benefits.

On June 1, 2009 the worker reported to the employer that she was filing a claim for her condition and the employer completed the required Accident Report.

After review the adjudicator denied the worker’s claim on the basis that the worker did not file the claim within the required 6 months of accident. This was communicated to the worker in a correspondence dated June 9, 2009.

After further review the adjudicator determined that the worker was actually within the time frames and reviewed the entitlement decision.

After further review entitlement was denied on the basis that compatibility between the work duties and the workers’ medical condition could not be established. This was communicated to the worker in the correspondence dated August 12, 2009.

On August 31, 2009 the worker formally objected to the denial of the claim.

AUTHORITY:

Policy No: 11-01-10 : Adjudicative Process Policy No: 15-02-01 : Definition of Accident

EVIDENCE AND SUBMISSIONS:

The employer provided two separate submissions dated November 9, 2010 which were accepted.

Submission #1: 12 page employer submission : physical demands analysis and related policies

Submission #2: 19 page employer submission : medical reports and employer notes

ASSESSMENT OF THE EVIDENCE:

The worker representative argued through file documents and worker testimony that the worker had no history of prior cervical complaints. Further, that she was required to perform heavy lifting without assistance.

The employer argued that the worker did not report the incident as required and only elected to file a claim after her insurance benefits ended. It was also argued that the employer has a zero lift policy and the worker was aware of this policy and the requirements regarding reporting and accident and filing a WSIB claim.

Worker Testimony:

The worker testified that as a personal support worker she was responsible for the care of 10 residents including dressing, bathing, moving beds, and transporting patients.

She testified that while there are 3 personal support workers on the floor at any given time that they do not always assist each other.

The worker stated that she initially thought it was a minor strain which would resolve itself given time. She stated that after consultation she was encouraged by the union to file a WSIB claim.

The worker confirmed that she returned to regular duties on August 22, 2009.

Witness Testimony:

The witness testified that she was a supervisor for the employer and was aware of the workers’ complaints. She stated that the worker did not report any work related incident at the time of lay off. She further stated that at no time did the worker request assistance or complain that the other support workers were not providing assistance when required.

The witness then confirmed that the employer has a zero lift policy and that the worker was aware of the requirements of reporting any work related incidents. In support of this the witness referenced and incident report of February 2008 filed by the worker for a sore back after making a bed.

In reaching this decision I had regard for the worker and employer arguments, worker and witness testimony, employer submissions, Operational Policy, and the Act.

Policy 11-01-10, adjudicative process, stipulates:

"An allowable claim must have the following five points:

• an employer

• a worker

• a personal work related injury

• proof of accident

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, an opinion is sought from the WSIB’s medical consultant."

Policy 15-02-01, definition of accident, stipulates:

“Accident includes

• a willful and intentional act, not being the act of the worker
• a chance event occasioned by a physical or natural cause, and
• a disablement arising out of and in the course of employment.”

In reviewing the circumstances of this case it is noted that the worker was aware of the reporting obligations and process as evidenced by the February 2008 incident report filed by the worker with the employer.

The medical evidence clearly establishes that the worker suffers from a degenerative condition in the cervical area. This is confirmed by the MRI report of December 10, 2008.As early as October 20, 2008 the worker was aware of a diagnosed condition but did not relate or report this as a work related condition.

It is also noted that the worker has returned to regular duties since August 22, 2009 without further incident, complaint, or treatment.

This is a significant factor in that when questioned by the Appeals Resolution Officer the worker testified that since her return to work in August 2009 there have been no changes in either duties or processes. She further confirmed that she has no further symptoms or requires any form of treatment.

From this evidence it is clear that the work duties have remained static both prior and post accident and are not causing any further symptoms or complaints.

Therefore, it is not possible to confirm that the workers’ condition is related to the work duties as there have been no further complaints, lost time, or treatment since resuming regular duties in August 2009.

As a result I find that proof of accident cannot be established and as a result there is no entitlement for the cervical condition.

CONCLUSION:

I conclude that that proof of accident cannot be established and as a result there is no entitlement for the cervical condition.

The worker's objection is, therefore, denied.

Dated: December 23, 2010

R. Sheridan

Appeals Resolution Officer

Appeals Branch