Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20110020
Objection By: Worker
Participants: Worker, Employer
Hearing: N/A
Issue
The worker is objecting to the July 5, 2010 decision which denied initial entitlement under the claim.
How the Issue Arises
On May 25, 2010, while employed as a dietary aid, the worker was pushing a rack with dirty dishes through the dishwasher when she felt pain in her lower back. She was 55 years old at the time of injury and had been with her employer since 1998.
The worker reported her injury to her employer the following day. According to the July 5, 2010 decision, entitlement was denied on the basis the Case Manager had been unable to establish the worker’s low back problems arose out of her work duties.
The worker objected to the above decision. Upon receipt of the worker’s completed Objection Form, the decision to deny initial entitlement remained unchanged and the worker’s file was referred to the Appeals Branch for further review
Authority
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
15-02-01 Definition of an Accident
15-02-02 Accident in the Course of Employment
Resolution Method and Process
Although the worker initially submitted a 60-Day Expedited Decision Option review, this appeals resolution officer (ARO) determined further enquiries were required. Following the enquiry process, both parties concurred with a decision based upon the file information.
Assessment of the Evidence
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
Following contact with the worker, the Case Manager documented the worker reported experiencing low back pain while pushing a rack of dishes through the dishwasher. The worker confirmed having had a low back injury approximately eight years earlier, however, has since been well. She indicated her back is stiff in the morning when she awakens, but otherwise she is a healthy individual.
Entitlement was denied on the basis the worker had not been performing any unusual or awkward movement, nor had she tripped or fallen. However, according to the worker’s October 1, 2010 submission, she indicated her regular job duties were heavy in nature and that they often require awkward positions which add stress to her low back. She provided a completed MSD Hazard Identification Worksheet for her position which was completed by the Occupational Health Co-ordinator which confirmed the pushing of the dishes is hard/difficult and that the worker would be in an awkward posture.
This ARO contacted the employer and was directed to speak with the Occupational Health Co-ordinator, on behalf of the employer. The Co-ordinator expressed surprise the claim had been denied and confirmed it was their position the worker’s claim ought to have been allowed.
A review of the medical information submitted confirms the worker sought initial medical attention on May 26, 2010, the day following her injury. She was diagnosed with a low back strain due to pushing equipment at work. It was recommended she refrain from working for one week. Physiotherapy was prescribed.
Policy 11-01-01, Adjudicative Process, records the following in part:
“Five point check system
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 (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history. “
In reviewing the above criteria for an allowable claim, I find the worker has met all of the requisite criteria. More specifically, I find there is evidence of a personal work-related injury – the worker confirmed and the file information supports the dishwasher rack being pushed is heavy and the worker would have performed this activity in an awkward posture. Consequently, initial entitlement to a low back strain is granted. The file information is silent with respect to
whether suitable work was offered to the worker and the duration of the worker’s absence from work. As a result, entitlement to loss of earnings (LOE) benefits must be reviewed on a priority basis after this information is obtained.
Conclusion
I conclude the worker has entitlement to a low back strain.
As the file information is silent with respect to the duration of the worker’s absence from work and whether suitable work was offered to the worker, the operating area must obtain this information on a priority basis and render a decision on entitlement to LOE benefits accordingly.
The worker’s objection is therefore allowed.
DATED March 21, 2011
L. Diaz
Appeals Resolution Officer
Appeals Branch