WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110010
OBJECTION BY: Worker
PARTICIPANTS: Worker, Employer, Employer’s representative
HEARING DATE: N/A
ISSUES
The worker seeks recognition of a work accident on January 28, 2010 and the payment of loss of earnings benefits for the time off work from February 21, 2010 until April 11, 2010.
HOW THE ISSUES AROSE
The worker was struck on the leg by a Mono container on January 28 2010 causing her to twist her low back. She was able to continue her job duties but was seen at the employer’s first aid station several times in early February 2010.
She first sought medical treatment on February 21, 2010 and was told to go off work. She remained off work from that date until April 11, 2010 with the exception of when she worked approximately 5 hours on March 21, 2010, but had to leave due to back pain.
The Workplace Safety and Insurance Board (WSIB) Eligibility Adjudicator (EA) denied entitlement in a letter dated April 30, 2010. The letter notes that given the delay in seeking medical attention ( three weeks) the EA could not “ prove that [the worker] sustained a personal injury on January 28, 2010”, the worker objected to this decision and submitted an objection form along with a signed statement on July 8, 2010. The EA on review confirmed the pervious decision and referred the case to the Appeals Branch as outlined in the decision of July 26, 2010.
AUTHORITY
Operational Policy
11-01-01 Adjudicative Process.
15-03-01 Recurrences
RESOLUTION METHOD AND PROCESS
The worker is unrepresented. A detailed signed statement was provided with her objection form dated July 9, 2010. I contacted the employer’s representative on December 22, 2010. In light of the signed statement it was agreed that a hearing would not be required. The employer’s representative later indicated that they would not be making additional submissions.
ASSESSMENT OF THE EVIDENCE
In making decisions regarding the work relatedness of a claimed injury WSIB decision makers rely on the policy “11-01-01 Adjudicative Process”. A portion to the policy is outlined below:
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system." An allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
Decision-makers may consider the following when examining proof of accident,
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
In the case before me there is no dispute that an accident happened on January 28, 2009. The EA acknowledges this fact in his letter of April 30, 2010. The problem in this case is that the worker remained at work doing her regular duties without documented complaint and with no medical attention until February 21, 2010. She then went off with a back problem. The EA noting what he considered to be a lengthy delay in seeking medical attention could not prove “ that any diagnosis provided by medical assessments on or after February 20, 2010 would be directly related to your incident”. In other words, without ongoing complaints and the gap/delay in medical treatment the EA could not be certain that the back problem documented by the treating specialists actually resulted from the January 28, 2010 incident.
The actual incident in January was witnessed by the supervisor. It was acknowledged by the employer that a back complaint resulted from the injury. First Aid records are on file documenting visits on February 3, 4 and 5th 2010. The First aider noted that the area of compliant was the mid back. The worker was attempting “to bear with it”. The chiropractor’s first report confirms he was treating the worker for a mid lower/back injury. “Tripped at work causing her to twist / wrench back leading to mid lower back pain”. The report indicates that there was no known history of prior problems.
The worker in her signed statement dated July 9, 2010 indicates that she returned to work after the accident in pain. Saw first aid several times and attempted to continue working the best she could. When the pain did not subside as anticipated she self treated the back with heat and massage at home along with taking some prescription pain killers that her partner had. Portions of the statement are outlined below:
I went to first aid the first week 3 times... the next week end my boyfriend saw the pain I was in and gave me his heating pad, tens machine, Tylenol#3 and some Ibeprophen 600’s to help. For the next two weeks I continued taking the medication, using the tens machine and heating pad at home. I continued my duties at work. I am stubborn and I really thought I would get better. I dealt with the pain any way I could feeling that my back would be fine…I try not to complain too much or tell anybody my problems. I try and deal with things myself. I did my job feeling I was doing the right thing but in the end I realize I should have seen the doctor sooner….I hope this helps you in explaining my actions for those weeks. I didn’t realize you needed so much details I hope this helps.
Analysis
As stated above there is no dispute that the incident occurred as reported on January 28, 2010. The issue is whether the need for lost time commencing on February 21, 2010 can be related to the January 28, 2010 accident. The Eligibility Adjudicator concluded that it could not, given the lengthy delay in seeking medical and the lack of any documented complaint.
The worker has now explained that she had access to prescriptions drugs, a tens machine and a heating pad that she used to self treat the injury. She further explained that she is not a complainer by nature and tried to perform her job as best she could. She did indicate that she continued to mention the pain to the first aider but did not formally visit the First Aid office beyond February 5th. I note no contact was made with the First aider to try and confirm any ongoing complaints.
As I indicated above there is no evidence of any prior back problems. There is no evidence of an intervening event or new accident that could be an alternate cause for the mid back pain. The chiropractor confirms the area of injury was the mid/low back. This is the same area treated in first aid in early February. I have no reason to doubt the worker’s signed statement of July 9, 2010.
Noting that the actual accident is not in dispute the issue of whether the lost time is related to the accident of January 28, 2010 could be alternately adjudicated under the Board’s policy on recurrences. That is, is there evidence that the reason the worker lost time from February 21, 2010 is related to the January 28th work accident. Policy 15 03 01 “Recurrences” indicates the following:
A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.
The policy threshold for allowance is the establishment of clinical compatibility between the original injury and the current condition. The presence of either medical continuity or complaint continuity can provide further evidence that the current condition is related to the original injury however, there is no policy requirement that continuity be present in the presence of clinical compatibility. The policy goes on to indicate that decision makers may recognize clinical compatibility when the current condition involves the same body part and has the same diagnosis or there are similarities between the degree in which the body part is affected.
In this case, I am satisfied that there is clinical compatibility. The medical reporting establishes that the worker was off work due to a mid low back problem. There is no evidence of a prior problem. There is no evidence of an intervening event or alternate cause for the mid back problems. The mid back was the area treated in First Aid, the same area treated by the doctor and chiropractor. I accept that there is clinical compatibility. There is no documented history of complaint or need for altered duties from January 28 to February 21, although the first aid officer was not contacted for a statement. The worker however has provided detailed reasons as to why she delayed seeking medical and limited her complaints. I have no reason not to accept this signed statement. On the balance, I am satisfied that the reason the worker went off work on February 21, 2010 was due to a low back injury sustained at work on January 28, 2010. Entitlement to loss of earnings benefits are granted for the period off work. The file documentation indicates the worker returned to modified work at reduced hours. The operating area is directed to obtain additional detail and pay partial loss of earnings benefits beyond April 11, 2010 as appropriate.
CONCLUSION
Loss of earnings benefits are granted from February 21, 2010 until April 11, 2010, less the time worked on March 21, 2010.
The objection is granted.
DATED THIS DAY January 21, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch