WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110030
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
HEARING DATE: February 24, 2011
ISSUES
The worker requests the Workplace Safety and Insurance Board (WSIB) recognize a low back injury arising out of and in the course of her employment on June 3, 2006 and pay loss of earnings benefits for the associated time off work.
HOW THE ISSUE ARISES
This then 33 year old, recently hired personal support worker (PSW) experienced low back pain on June 3, 2006 while carrying garbage bags down a hall. She completed the shift and did not report the incident as she hoped it would go away. She eventually reported the incident on June 5, 2006 when she awoke in severe pain. She sought medical attention and was diagnosed with a back strain. She was off work for a time and then returned to modified work for approximately a month.
On review, the WSIB ruled that the carrying of the garbage -since the bags were light- was not contributory to the onset of low back pain. Further it was concluded the job in general also was not the cause of the low back pain. These decisions are outlined in letters dated July 6, 2006 and August 24, 2006. The worker subsequently appealed these decisions and the matter was reviewed by an Appeals Resolution Officer (ARO). In August 2008 the ARO returned the file to the operating area and asked that more detailed inquires be carried out and the initial entitlement revisited. This was done and in a letter dated May 22, 2009 the operating area confirmed the previous decisions not to extend initial entitlement. The file was then returned to the Appeals Branch.
The original ARO was no longer available and subsequently the case was assigned to me. On contact with the parties it was decided an oral hearing was required to obtain addition information concerning the job duties, the history of onset.
AUTHORITY
Operational Policies:
11 01 01 Adjudicative process
15 02 01 Definition of an Accident
Legislation
Workplace Safety and Insurance Act, RSO 1998, Section 2
ASSESSMENT OF THE EVIDENCE
Testimony
The worker provided sworn testimony at the hearing. Her testimony was somewhat scattered in its presentation. She at times would not complete her thought and had difficulty with exact dates and chronology.
What was learned, through close questioning by all those present, was that for a period of approximately 2 years prior to the injury she was unemployed, or barely employed, during what she described, as a dark period in her life. She had two relatively short periods of employment in the food service industry during that two year period. She actively sought employment with the hospital as a personal support worker. She noted she called the hospital recruiter once a week over six months until she got an interview and eventually was hired. She was excited about being employed. She recalls undergoing classroom training for about two weeks and then started work as a part time PSW. She was on call. For the two weeks prior to the low back onset she worked over 100 hours.
She further explained that following the onset of low back pain she returned to her regular work in July 2006 but that her back had not fully recovered. She attempted to carry on to the best of her abilities by self accommodating. She would take sick days. She would on her breaks lie down on a bench on the third floor. In November 2009 the employer removed the benches she used to rest and as a result she could not longer carry on her job duties. She was off work and on Employment Insurance for a year. She has had return to work discussions with the employer but testified that the employer had recently asked her to provide additional medical documentation to substantiate her restrictions and she has not complied with this request. It is her view that she has likely been terminated by the employer due to her non compliance.
We spent considerable time in the hearing trying to elicit the exact activities that occurred on June 3, 2006 that lead to the onset of low back pain. She noted that approximately 30 minutes into her four hour shift she was removing garbage from the rooms on her wing. She felt there were about 7- 10 rooms in total, each room had about three containers of garbage. The containers were metal receptacles most about 18 inches high although some would be higher about 36 inches. Each container would have a liner or bag within the container to hold the garbage. She would go into each room and remove the bag from each container. She would tie the bag off. She would replace the liner in the container. She would then go to the next room and repeat the process. Despite extensive questioning it is unclear if she put the smaller bags into a larger bag as she went along. She confirmed that all of the bags were light in nature. I note that one of the file documents refers to putting the smaller bags into a larger green garbage bag although the worker did not mention this in her testimony. The worker was however clear that she "hurt her back when she hurt her back". She relates it to the removing one garbage bag from one container in her last room. She was removing the bag from the container. The contents were light. As she was rising, pulling up the bag from the container she felt a pull in her low back. As she was walking out of the room and down the hallway carrying the bag(s) the pain became more noticeable. She mentioned it to a co-worker who made her complete an incident report. She finished her shift but had difficulty with the floor mopping near the end. The next morning she experienced more pain but was able to work another four hour shift. The following day on waking up she was in acute pain and called the hospital to indicate she would not be able to perform her next scheduled shift later that week.
The worker was unclear how many bags she would have had in her hands as she walked down the hall. She could not recall whether it was multiple bags or perhaps two with all the others stuffed into one of the two bags she had.
I went over the various descriptions of the accident history contained in the file record in some detail. The worker did not immediately recognize any discernable difference in the histories provided, stating "to me it's all the same". Further, she noted that she had been working significant hours in the two weeks prior to the day of the accident. She recalled that the PSW job was the most physical job she had ever been exposed to. It was her view that the number of hours worked and the physical nature of the job was contributory to the onset of the back pain and the lifting of the light garbage bag was the hay or the straw that broke the camel's back.
The worker's representative also is of the view that the onset of the back pain must be seen in context of a worker who after being unemployed and sedentary for a period time commencing a physical job and working long hours along with a specific lift, all combined to be contributory to the onset of back pain. The employer representative notes that it is not sufficient that the low back pain came on at work but that there needs to be a definable event that caused the back pain. He believes in this case the causation component to be speculative and not credible when seen in the larger context of all the file documentation.
ANALYSIS
Decision
I am unable to relate the onset of back pain in June 2006 to the specific work activities occurring on that day or to the cumulative affect of the job duties in general.
Reasons
Section 2 of the Workplace Safety and Insurance Act defines an accident as:
(a) a wilful and intentional act, not being the act of the worker
(b) a chance event occasioned by a physical or natural cause, and
(c) a disablement arising out of and in the course of employment.
Supporting policy "Definition of an Accident" document 15 02 01 expands on this definition of chance event as follows:
A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
Chance Event
I have examined the accident histories as presented in the file record and as provided in testimony to determine if there is an event that can be defined as a chance event occasioned by a physical or natural cause. On review, it is my view such an event cannot be defined. This is largely due to confusion as to what exactly happened on June 3, 2006 that led to the onset of low back pain. As was explored under testimony in the hearing there are variances in what has been described to various parties as to the exact events of June 3, 2006 that led to the back pain. I will briefly out line the competing histories.
The accident employer completed an Employer's report of accident or Form 7 on June 7, 2006 which described the event as follows:
Also had another garbage bag in her hand(that was light) and as she bent over and then carried the two bags she felt pain in her back…Bending over to pick up garbage which she states in WRO was light not heavy
The worker in her own report of accident ( Form 6) completed on July 5, 2006 states
walking down hallway on 8th floor when I noticed pain………..
The Form 8 or "Doctors First Report" from the urgent care clinic simply notes "Lifting @ work" under the heading "what is your understanding as to how this injury.. occurred". The worker's own family doctor in his Form 8 dated June 7, 2006 states "Carrying bag of garbage" followed by something "illegible" but could be "felt pull" . The physiotherapist in a report states "Pt was carrying a bag of garbage and she felt her back give out". Memo 3 of the file record records a conversation the worker has with the adjudicator and the adjudicator records "carrying a bag of garbage in each hand" when she noticed an onset of low back pain.
Perhaps the most detailed description is described in the investigation notes. An investigator contacted the worker and took a statement at the request of the previous ARO. The investigator records:
A short time into the shift about 30 minutes, she had collected trash from individual garbage cans. She tied each bag. The garbage bags were then put into a larger green garbage bag. She claimed there was a lot of bending when collecting all the individual garbage. By the time she collected all garbage from about 14 rooms, she started to feel pain, but she did not know what she did for this pain to come on.
While the worker under testimony is of the view that all of the above histories are about the same and describe the same event I believe there are subtle and substantive differences in the histories and not all are consistent with the worker's history as she now testified to, of lifting a small light garbage bag out of a container. The most consistent reported history is carrying a bag of garbage or perhaps two bags down the hall when pain started. The testimony is that she may have been carrying multiple bags or perhaps multiple bags stuffed into larger ones but she herself is not clear. There is no mention of using a larger green garbage bag to collect the smaller ones. All of the histories confirm the weight of the bags were insignificant. The investigator is clear that despite describing the activities of collecting garbage the worker did not describe a specific event or know the reasons for why the pain came on. This is substantively different from the testimony where she was specific -albeit under close questioning -that she felt a pull or tug in her low back as she was pulling a small bag of little weight out of a container.
I am left with the question as to which history is correct. Which version of events I am to believe. The employer's representative correctly points out this is not a guessing game. There needs to be a degree of certainty as to what happened to cause the onset of pain. There needs to be supporting evidence for the version of events and there needs to be compatibility between the actions and the resulting injury.
The worker's representative also correctly points out that it is not sufficient for the pain to come on at work but there needs to something specific about the work to cause the injury. He asks that I consider the injuring process to be a combination of heavy work, long hours and a specific lift. I am in agreement that the lifting of the garbage bag while bent over could be compatible with the onset of back pain. However, I do not feel there is sufficient independent evidence to support this event actually happened. The worker testifying four years after the event now provides a very specific accident history whereas the previous recording of the events leading up to the onset of low back pain could be characterized as vague and inconsistent. This is not to say that the worker is being purposeful in altering the events. This is no doubt how she now remembers the day. Her style of communicating itself might be contributory to the confusion.
However, when taking the entirety of the evidence into consideration I do not have confidence that there was a chance event occasioned by a physical or natural cause. The act of walking down the hallway and developing low back pain does not constitute an accident. The injury cannot be described as the accident. I am unable to identify an injuring process in the act of walking or even carrying light garbage bags. I am unable to wholeheartedly endorse the accident history of lifting the garbage bag from the container due to the lack of supporting evidence that is contemporaneous to the event. On the balance a "Chance event" has not been identified.
Disablement
The alternate argument is that the worker's new job of personal support worker resulted in an unaccustomed strain. This causation theory is supported to some degree by the ergonomic review completed on August 26, 2008. The ergonomist suggests that a new worker may not be familiar with the job tasks and as a result may develop a back strain. He notes that there are ergonomic risk factors in the job of personal support worker:
Based on this review it is unlikely the acute onset of carrying bags is solely liable for the injury. There is potential for this injury to be compatible with a gradual onset mechanism given the nature of the work demands. While the risks associated with the work demands are not considered extreme they cannot be excluded from being contributory as they directly involve the low back area that is the location of the injury.
From the above the ergonomist was of the view there was the potential in the PSA job for a gradual onset mechanism. The PSA job does involve a degree of bending and lifting and awkward movements when positioning patients. The worker did work more hours just before the onset. However the potential for risk factors does not equate to a clear finding on causation. In this particular case the onset was not gradual in nature. None of the medical reporting speaks to a gradual onset brought on by the job demands. The history is an onset of low back pain on a particular day while at work during activities that are not well defined. I have ruled there was no definable chance event that merits entitlement under the Workplace Safety and Insurance Act. Policy 15 02 01 "Definition of Accident" notes that an accident is either a wilful act or a chance event or a disablement arising out of and in the course of employment. The policy goes on to define disablement as a condition that emerges gradually over time or an unexpected result of working duties. In my view, this worker's low back condition did not arise gradually over time. For it to be considered an unexpected result of working duties there would need to be evidence that the working duties caused the condition. The evidence is lacking in this regard in my opinion. Entitlement to the low back condition as a disablement is also denied.
CONCLUSION
There is no entitlement in the worker's 2006 low back claim.
The worker's objection is denied.
DATED May 19, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch