WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150053
DECISION DATE: June 2, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: C. Ihasz, Appeals Resolution Officer
ISSUE
The injured worker and her representative object to the denial of initial entitlement to a low back injury, as contained in decisions dated December 3, 2013 and June 26, 2014.
HOW THE ISSUE ARISES
The worker is a now 35-year-old registered practical nurse who has been employed with the employer since 2002.
This claim was created for a back injury in October 2013. The worker completed her accident report to give an accident date of October 25, 2013, that was reported on October 30, 2013. She stated,
"Patient load very heavy, six to eight patients to care for, many heavy two-person transfers, many turns at re-positioning of patients, total care.”
The worker stated the onset of pain on October 19, 2003, was an achy back. She claimed to have had an increase of workload for a period of two weeks.
The employer completed their accident report for a date of October 28, 2013. They stated,
"Employee states she suffers from lower back pain, due to repetitive patient handling.”
The employer attached a letter dated November 6, 2013. This outlined the sequence of events concerning reporting. The injured worker told the employer that she woke up on the weekend with back pain. There was no specific accident documented. She initially claimed sick time starting October 28, 2013. The employer objected to the establishment of initial entitlement, as well as the payment for Loss of Earnings, as modified work was offered and declined.
The family doctor provided a Form 8, dated November 1, 2013. The diagnosis was back sprain, acute/severe. The physiotherapy clinic provided a report for October 29, 2013. The worker reported a gradual onset doing repetitive forward lifting and bending.
The family doctor provided the clinical notes. The chiropractor also provided the clinical notes.
On December 3, 2013, the eligibility adjudicator wrote to the injured worker. She had previously contacted the injured worker and the employer for additional information. It was her decision that she could not grant initial entitlement in this case. The worker's representative provided an Intent to Object form. This was slightly outside the time limit to object. The worker's representative stated he was delayed due to a serious family issue. The eligibility adjudicator accepted this explanation and allowed for the objection to proceed. The worker's representative submitted his Intent to Object form with additional information. The eligibility adjudicator reconsidered this on June 26, 2014 and upheld the decision to deny initial entitlement. Since this time, there has been an MRI study submitted which shows compression of the descending left L5 nerve in the central canal. As the eligibility adjudicator was unable to change the decision regarding initial entitlement, the matter was referred to the Appeals Services division for further consideration.
AUTHORITY REFERENCE
Policy Number:
11-01-01 Adjudicative Process
11-01-02 Decision Making
11-01-03 Merits and Justice
11-01-13 Benefit of Doubt
RESOLUTION PROCESS
The worker's representative has requested that this matter be addressed via a hearing in writing. The employer has also elected to participate in the objection process. Neither party provided any further submissions other than the MRI study.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I have carefully reviewed all of the evidence in this claim as it pertains to the onset of low back pain in the fall of 2013.
I note that this injured worker is a nurse. She has been employed on a long-term basis with the accident employer, since 2002. She has a previous claim for her low back in February 2010.
The injured worker states she started to feel achiness in her low back starting October 19, 2013. She has denied having any specific accident or incident in the workplace to account for this onset of problems. She described a gradual onset over two weeks. She called in sick on October 28, 2013 and did not report this as work-related to the employer. She stated that she woke up on the weekend with back pain.
The worker has claimed that the injury resulted as a result of repetitive work in the workplace. She described an increase in work duties. The employer has stated she returned to work from a maternity leave in February 2013. The employer stated that they have added personal support workers to assist with the lifting. The employer could not confirm the worker's statement that there was an increase in workload. I am not sure how caring for six to eight patients over the course of one shift would be classified as "repetitive".
A review of the medical information shows that the injured worker saw the chiropractor on October 26, 2013, for a stiff low back. No reason for increased symptoms was documented. She returned to the chiropractor on October 28, 2013 and reported symptoms at a 5/5 level. The onset was Saturday and Sunday, particularly Sunday a.m.
The family doctor notes from October 29, 2013, stated that, “the injured worker had back pain. On the 19th, she was transferring a patient. She saw the chiropractor yesterday, some better. Robaxacet and Voltaren did not help. She described heavy units of six to eight patient transfers.”
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?
If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.
The onset of pain in this case was on the weekend at home. The worker states she woke up with pain. She has attributed it to her work activities in the week before to an increase in workload. This has not been confirmed with the accident employer. The injured worker describes no specific incident or accident in the workplace to account for the onset of this injury. This is especially relevant noting that the injured worker had an MRI study which in 2014, confirmed a herniated disc. There is no evidence to indicate the injured worker did any activities which could account for a specific injury such as a disc herniation in October 2013.
The worker's representative has asked that I proceed to a final decision of the WSIB on this matter with the information on the claim record. Unfortunately, I do not see a causal relationship between this disc herniation or the lower back problems that were documented in October 2013, as being caused by the work in general or an increase in work duties in October 2013. It is for these reasons, that I must confirm the decision of the Eligibility Adjudicator, dated December 13, 2013.
CONCLUSION
The objection is denied.
DATED
June 2, 2015
C. Ihasz
Appeals Resolution Officer
Appeals Services Division