WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20150037
DECISION DATE:
April 28, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
March 31, 2015, London, Ontario
HEARD by:
F Bruno, Appeals Resolution Officer
ISSUE
The worker objects to the Eligibility Adjudicator's letters dated July 31, 2013 and December 23, 2013, that explained the denial of initial entitlement.
BACKGROUND
The worker was employed as a car haul truck driver with the employer. He began his employment with them in May 2004. On July 3, 2013, at 44 years of age, the worker claimed he was pulling up on a wrench when he felt a pull in his left shoulder. He continued performing his regular duties, and then, on July 24, 2013, he attended medical treatment and was authorized off work.
The above details were reviewed by the Eligibility Adjudicator. It was concluded proof of a workplace injury could not be established. These details were explained in the Eligibility Adjudicator's letter dated July 31, 2013.
The worker objected to the decision and completed an "Intent to Object Form" dated November 23, 2013.
The July 31, 2013 letter and decision was reconsidered, but the Eligibility Adjudicator maintained the original decision to deny initial entitlement for the left shoulder. This was explained in the letter dated December 23, 2013.
The worker maintains his objection on the issue, and the matter was referred to the Appeals Services Division to address the objection. A hearing was arranged as a means of resolution. This took place on March 31, 2015 in London, Ontario.
AUTHORITY
WSIB Operational Policy:
11-01-01 – Adjudicative Process
15-02-02 – Accident in the Course of Employment
ANALYSIS
WSIB Operational Policy 15-02-02 states, in part, the following;
- A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
Law and policy provide the definition of accident as:
- 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.
A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
Disablement is defined as:
- a condition that emerges gradually over time
- an unexpected result of working duties
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.
Some points decision makers consider when examining proof of accident are:
- 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?
There must be reasonable proof of a work related accident that occurred out of and in the course of employment. As noted above “an injury itself is not a chance event”. In this case, the worker claims his injury was the result of a specific accident arising out of and in the course of employment. To address the issue of entitlement, I must establish reasonable proof that a chance event occurred on July 3, 2013, which led to the injury/diagnosis that the worker has claimed.
In order to rule on whether the injury “arose out of the work activity”, significant details must be considered. The important point is the work performed does not have to be the only factor but it must be a significant contributing factor that can co-exist with other contributing factors such as pre-existing conditions or pre-accident impairment. The condition must have an obvious work link.
The worker testified that he has been a car hauler since 2002. He explained that in order to maintain his AZ license, he is required to have regular physicals with his doctor. He said he recalled having a pre-employment medical assessment done with this employer as well.
The worker maintains having no prior left shoulder difficulties, no prior injuries to the left shoulder before commencing employment with this employer and had no left shoulder treatment prior to July 3, 2013. He never sought medical attention for the left shoulder prior to July 3, 2013.
The worker acknowledges that prior to commencing employment with the employer, he underwent a training program. He said he is aware of the steps to follow if an incident occurs while on the road. He said he is required to call his dispatcher and let them know what has occurred.
On July 3, 2013, the worker explained his truck broke down on the side of the road. A truck in front of him had lost a tire tread, and the tread cut one of his brake lines on the trailer. He said he pinched off the line and zip tied it. He said he then put a manual release bolt into the brake chamber and was tightening the bolt so that he could get the truck to Barrie, Ontario to get it repaired properly.
The worker representative referred the worker to his Intent to Object Form and the details he attached (Appendix 1), regarding his positioning/how he was positioned, when he was tightening the bolt. He said he pinched off the line, got to Barrie, Ontario and got the truck fixed. He said the employer paid for the repairs to the truck. The worker explained the incident occurred at the beginning of his delivery run. He had not delivered a car yet. After the repair got done in Barrie, Ontario, his scheduled run was to take him to Parry Sound, Sudbury and Blind River Ontario. Thereafter, he managed to finish those runs.
He explained that after the injury and after the truck got repaired in Barrie, he had an additional issue with the engine of the truck that he had to handle on the side of the road again. He explained the exhaust brake had locked on. He said he delivered one or two units, in Parry Sound, and then proceeded to Sudbury and went to bed.
The worker explained that at the end of his work day, he typically sends an e-mail to his dispatcher, explaining where he is, what was completed for the day, and where he will be the following day. He explained he sent an e-mail to his dispatcher. He also recorded these details in his log book. He acknowledged sending an e-mail to the employer dispatch at approximately 2:00 a.m. to report the work incident. He said he asked for an Injury/Accident package because his shoulder was sore. He said in the morning he contacted the dispatcher who transferred the call to the individual responsible for health and safety issues and WSIB issues. He confirmed he received via fax, the Injury/Accident package. He completed the package and faxed it back to the employer as required, and then continued his work.
The worker proceeded to explain the details of the work incident.
He explained that, at the time of the incident, he bent over, and was on his hands and knees, and was reaching below the surface of where his hands and knees were. He was pulling up on a wrench and tightening a nut. He said he felt a pull, deep inside, into his left shoulder. He said he immediately sat up, got up on his knees, and paused, moving his shoulder back and forth. There was no pain at the time. He said it’s seemed OK thereafter, and then he finished tightening the bolt. He then proceeded on his route to Barrie, Ontario. He said as he continued working until 2am, pain slowly came on, and set in as he continued working. He said the pain increased with aching, and he felt it in his neck as well. He was of the view at the time, that he had perhaps pulled a muscle and tried to work through it.
Thereafter, on July 4, 2013, he proceeded with his deliveries to Sudbury and then Blind River, Ontario. He went back to London, Ontario empty. The worker acknowledged his shoulder was becoming sore as time went on. On the weekend, he iced the shoulder thinking or hoping that the issue would resolve. The following week, he worked four days doing a run to Wawa, Ontario. The worker acknowledged being paid piecework, by the mile, and by the amount of cars he hauls.
He acknowledged taking it easy, thought he had a pulled muscle, and tried to work through it. He said his shoulder hurt, and the muscles around the shoulder were sore. He explained he did not partake in any activity that would cause further aggravation of the shoulder. He acknowledged driving, strapping, climbing, etc., were becoming difficult as well as getting in and out of the vehicles. He acknowledged he is left hand dominant.
The worker confirmed he discussed his difficulties with his friend, “G”, and that “G” was aware of what had occurred. Reference was made to the statement he provided to the file. He said he does not see a lot of other people as he is in his truck driving alone most of the time while working and does not see a lot of people. He also acknowledged maintaining a 45 hour work week, which he is contracted to do. He must work a minimum of 45 hours.
The worker was asked why he waited so long to seek medical attention. He said he thought it was a pulled muscle and that it would go away on its own. He also acknowledged having a high tolerance for pain, and said he continued working up until the time he saw his physician. He acknowledged it would take him longer to complete tasks from the time of the incident up until he saw the doctor. He said he self-medicated with ibuprofen and rubbing Voltaren on the affected shoulder. He explained he was not involved in any other activities outside of work that may have caused or aggravated the left shoulder.
Then, on July 23, 2013, he was loading his regular truck for a load to go from Ingersoll to Lewiston with a reload in Lewiston. He said at the end of loading the truck, his shoulder was still sore, and since it had been three weeks from the time of the incident, he thought there might be a problem and he decided to seek medical attention which he did.
The worker explained he called the health and safety officer and advised him that he had made a doctor's appointment, and that he would attend after his Lewiston run. He said he saw his family doctor who put him off work until he saw the specialist, who arranged for an MRI. He explained all of the above details were reported to the employer as they occurred.
Upon questioning by the employer representative, the worker acknowledged being employed with the accident employer since May 2004 as a driver. He reiterated the accident history details as previously reported. He said he felt a pull in his left shoulder at the time of the incident, as recorded on file, and that he emailed the incident to the employer thereafter. He acknowledged receiving an Incident Package thereafter. He also acknowledged the employer offered modified duties.
Thereafter, he said he was at home for four days after the incident. He then worked four days, was off three days and then worked the following four days.
The employer explained in their log of the hours the worker had worked from July 3, 2013 leading up to the last day worked, and the worker acknowledged these details. He also explained he was taking Ibuprofen for pain every four to five hours as he required. He again acknowledged no prior left shoulder difficulties before the incident as reported on file. He is left handed. He explained he was tightening the cage bolts when the incident occurred. He said he was pulling upwards and was in an awkward position and pulling on the bolt towards him.
The worker explained he went on to have surgery in January 2014. The surgery was successful and his range of motion was improved. He proceeded with physiotherapy thereafter. He acknowledged some physical precautions remain.
Overall, I found the worker provided straight forward testimony and I found him to be a credible witness. He said he completed an Incident Report and reported the incident to the employer immediately. Although these records were not submitted to the file, I accept the worker’s account of the events, as they occurred, in his testimony.
I find compatibility exists between the incident as described by the worker, and what was reported, and the resulting initial clinical details. The worker maintained he continued working for a period of time until he eventually sought medical attention when his symptoms did not subside. I find this to be reasonable, having regard for the circumstances, as described. The worker testified he has a high threshold for pain. He said he needed to work to earn his living and tried to work through the shoulder condition. I also acknowledge the left shoulder was his dominant shoulder. The worker’s job primarily involved him working alone and therefore, obviously there would be no witnesses to what had occurred. When the worker eventually sought medical attention, the doctor's report corroborates the worker's account of what had occurred and the accident history he has described. He was later referred to a specialist who suspected a tear.
The worker explained that he tried to continue working and I find the delay leading up to the initial treatment was not unreasonable, having regard for the worker’s explanations. The record shows the worker reported the incident to the employer immediately after it occurred, and then sought medical attention when he found his condition was not improving nor going away.
The record shows that on July 3, 2013, the worker was pulling up on a wrench when he reported a pull deep into his left shoulder. He completed an incident report the following day and provided the details as to what occurred to the employer. There was a delay in seeking medical attention and the worker continued with his work duties until that time. He reported the shoulder continued to cause him discomfort.
Then, on July 24, 2013, he advised the employer that he was having ongoing left shoulder difficulties and was going to seek medical attention for this. He attended medical treatment on July 25, 2013 and medical restrictions for the shoulder were identified.
The Health Professionals Report (Form 8) completed by Dr. Muia states that, on July 3, 2013, the worker reported a sudden pain and "popping" sensation in the left shoulder while wrenching up. The area of injury was identified as the left shoulder. The worker was informed to rest and to remain off work from July 26, 2013. The doctor acknowledged the worker attended his office on July 26, 2013 for treatment. He explains that the original injury occurred on July 3, 2013.
Dr. Muia explains the worker tried to work through his pain, but that the condition worsened and he attended treatment on July 23, 2013. He had increased pain and weakness with stiffness from the date of injury. He diagnosed a left shoulder strain; possible rotator cuff tear. Further testing was initiated for review of the condition.
The Health Professionals Report (Form 8) dated August 23, 2013 explains that on July 3, 2013, the worker was forcefully pulling with a wrench when he felt a pop in his left shoulder. The diagnosis was left subscapularis tedonopathy; query tear. An MRI was arranged accordingly.
I also note the "letter of understanding and occurrence" completed by the worker's coworker, “G” dated October 27, 2014. Essentially, the worker's friend confirms he and the worker had spoken just after the incident occurred. He acknowledged the worker told him he would be communicating with dispatch to complete the necessary forms and fax them from his hotel. Thereafter, he said they spoke daily after the incident, and he was aware of the worker's condition. He said it was his understanding that the dispatchers were working with the worker on this issue. He said that when the worker realized that he pulled a muscle in his shoulder, he was made aware of the seriousness of the shoulder condition.
On the evidence, I find it reasonable that the delay in seeking medical attention has been appropriately explained, and I accept the worker's testimony in this regard. The worker is of a large stature and has acknowledged that his pain threshold is high. He said he tried working and continued to work because he needed to earn his living. As his pain did not subside and symptoms persisted, he eventually sought medical attention. The medical documentation corroborates the worker's account of the events as they occurred. There is no other precipitating event that may have led to the initial onset of his symptoms, as recorded.
The worker answered all questions asked of him without hesitation. I have no reason to set aside the worker's testimony as recorded. Having considered all the evidence, I find that a workplace accident did occur on July 3, 2013 to the left shoulder. The worker was initially diagnosed with a left shoulder strain, possible rotator cuff tear and further investigations for review of the issue, followed. The worker continued to work his regular duties, and when his symptoms persisted, he sought medical attention on July 23, 2013. On the evidence, the delay in seeking medical attention is reasonable, as explained. I find no reason to set aside, or doubt the worker's testimony as recorded.
There is a clear temporal relationship between the incident as reported by the worker, and the onset of symptoms. As a result, I find the weight of evidence supports entitlement. The issue before me is that of initial entitlement only. I accept initial entitlement for the diagnosis of left shoulder strain; possible rotator cuff tear. The extent and duration of any further benefits is referred to the Operating area for review.
CONCLUSION
The worker's objection is allowed.
Initial entitlement for a left shoulder injury is confirmed. I accept initial entitlement for the initial diagnosis of left shoulder strain; possible rotator cuff tear.
The extent and duration of any further benefits is referred to the Operating area for review.
Dated April 28, 2015 at Toronto, Ontario.
F Bruno
Appeals Resolution Officer
Appeals Services Division