WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150052
DECISION DATE: April 30, 2015
OBJECTING PARTY: Employer
REPRESENTED by: Employer Representative
RESPONDENT: Worker (Self-Represented)
HEARING: Hearing in Writing
HEARD by: R. P. Horne, Appeals Resolution Officer
ISSUE
The employer objects to the allowance of initial entitlement.
BACKGROUND
This now 52 year old retail sales clerk indicated she injured her low back on August 13, 2013 when she was retrieving an item from a shelf. At the time she was on a ladder and while lowering a toaster oven, she twisted and felt immediate pain in her low back.
In a decision dated September 20, 2013, the Workplace Safety and Insurance Board (WSIB) concluded that there were delays in reporting and seeking medical attention sufficient to merit denial of the claim based on no proof of accident. The worker objected to this determination and following reconsideration, the operating area accepted that a workplace accident occurred resulting in a low back injury. Although entitlement was allowed the decision letter of May 14, 2014 denied the payment of loss of earnings (LOE) benefits from August 20, 2013 to August 28, 2013 on the basis that suitable modified work at no wage loss was available with the employer.
The worker objected to the decision denying LOE benefits. In a decision dated January 23, 2015, an Appeals Resolution Officer (ARO) agreed with the operating area and confirmed the denial of LOE benefits because the employer had offered suitable modified duties at no wage loss.
Subsequent to the ARO decision of January 23, 2015, the employer requested that the initial allowance of the low back claim be revisited with a view to deny the happening of the accident.
AUTHORITY
Operational Policy 11-01-01 Adjudicative Process
ANALYSIS
Initial entitlement is confirmed
Reasons
This sales clerk with four years seniority indicates in her Workers Report of Accident (Form 6) that she was removing a toaster oven from a top self. She would normally lower the item to a lower shelf and then descend the ladder but in this instance the lower shelves were full. She twisted to the side and bent down with the item to place it on the floor. In completing this action, she felt a twinge in the low back.
The worker indicated that she did not mention it at the time to co-workers or to her supervisor. The next day she awoke with significant pain. She called in to work to advise that she had a sore back and would not be in. The employer indicates the worker did not attribute the low back pain to an incident at work. I have reviewed the statement from the supervisor who spoke to the worker on August 14, 2013. It indicates the worker advised her back was sore and she would not be in. The statement indicates the worker at no time related the pain as being work related. It would appear however that there was no confirmation of it being work related or non-work related in nature. The worker merely indicated her back was sore and would not be in. Based on the statement from the supervisor, it appears no probing questions were undertaken at that time to determine the cause of the back pain. I do not take the absence of any statement indicating the condition was work related to mean it was not work related. The only causation information that can be gleaned from the supervisor’s statement was that causation was not discussed.
The worker indicated she returned to her regular work and persevered. She did not complain to co-workers as apparently she is not allowed to converse with them. She thought the condition would go away. She delayed going to the doctor as she had no transportation and typically does not seek medical attention unless she absolutely has to. She attended work on August 19th but was in pain and incoherent due to the pain medication and she was sent home. At that time she advised her supervisors that she had hurt her back some days earlier.
The employer representative refers to the hospital Emergency Room (ER) report of August 20, 2013 which indicates in the triage portion that the worker; “does lifting at work-worked 6 days in a row-on 6th day started to hurt”. The representative suggests this statement establishes a gradual onset over a week. I however tend to agree with the case manager who in memo 16 (October 24, 2014) explains the onset of pain on the 6th day tends to give credence to a specific event. This is even more likely the case when the second page of the ER report is examined, which describes the history of the accident as; “moving a box at work … illegible… sudden pain L SL area”. I would interpret the notation as the worker experienced sudden pain while moving a box at work in the left lumbar sacral area of the low back. This to me is consistent with the worker’s report of accident on the Form 6 and grossly consistent with the employer’s report of accident.
The employer‘s representative makes mention of the lack of continuity of complaint while the worker performed her regular duties between August 13 and August 19, 2013 when she reported low back pain. This is mitigated in some respects by the report of low back pain resulting in a day off work on August 14. We know the worker had back pain on August 14 and we also know she was sent home from work due to back pain on August 19. She saw the doctor on August 20 with a history of low back pain over the last week which occurred while moving a box at work. The period of continuity in this case is exceedingly short. The worker claims an injury on the 13th of August. She was off work due to back pain August 14th. She worked August 15 and 16th indicating she self-treated with a heating pad at home. She was off work the 17th and 18th. She attempted to return to work Monday the 19th but was sent home due to back pain. The applicable policy does not require that there be continuity of complaint for initial entitlement to be established. The key threshold for entitlement is compatibility between the diagnosis and the accident history. A portion of policy 11-01-01 “Adjudicative Process” is appended below:
An allowable claim must have the following five points
- an employer
- a worker
- personal work-related injury
- proof of accident, and
Proof of accident
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 applying the five point check system there is evidence of an employer and a worker. There is personal injury as demonstrated by the ER report of August 20, 2013. There is to my mind compatibility between the accident history and the diagnosis. It is more than conceivable that the worker could develop a lumbar strain twisting, turning, bending while on a ladder while carrying a large awkward item. The employer representative notes the worker made a notation in a social media post she had degenerative disc disease and this is why she was off work in late August. With respect, this is not the diagnosis of the treating practitioner, although the x ray taken at the hospital did show some degeneration, this is not the presenting diagnosis. As stated above, I am fully satisfied there is compatibility between the accident history and the diagnosed low back condition, which is a strain.
When assessing whether proof of accident has been established, I acknowledge there are delays. However, they are not so significant in my opinion to disentitle the worker. The worker indicates she had an immediate onset of pain and this is supported by the ER report. She was worse the next day which is consistent with the known history of low back injuries. There is a delay in reporting the incident to the employer. However, we do know she reported low back pain the next day to the employer. Greater diligence on behalf of both the worker and the employer at this point may have solved the issue of delayed reporting. This notwithstanding, the delay in reporting is less than a week. I accept the worker’s comment that she delayed reporting hoping the condition would resolve and delayed seeking medical due to her stoic nature and lack of transportation to the hospital.
Initially, it was reported there were no witnesses. After the claim was denied the worker came forward and provided the name of a co-worker. The case manager took a statement from the co- worker. The co-worker indicated that on the day of the accident she was nearby when the accident happened. The worker appeared in pain at break time. They had counselled her to seek medical attention. The employer’s representative has noted the witness was not known until after the case had been denied. They imply the witness perhaps fabricated her statement in support of the worker. This assertion is untested. They suggest that little weight be placed on the witness statement due to the timing of the statement. I do not find the lack of a witness statement or the subsequent late witness statement to be particularly useful in establishing entitlement. To my mind, even without the witness statement proof of accident can be established. There is compatibility between the accident and the diagnosis. There is an immediate onset of pain and near immediate reporting of back pain although the specifics of causation are delayed slightly. The hospital reporting although delayed also confirms the accident history and onset of pain. On balance, proof of accident is established and initial entitlement is confirmed
CONCLUSION
Initial entitlement for a low back strain is confirmed
The employer’s objection is denied.
DATED April 30, 2015
R. P. Horne Appeals Resolution Officer Appeals Services Division