WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150088
DECISION DATE:
April 17, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
April 2, 2015 - Hamilton, Ontario
HEARD by:
R. Sheridan, Appeals Resolution Officer
ISSUES:
Worker:
Denial of entitlement for degenerative conditions
Reduction of loss of earnings (LOE) benefits on January 20, 2012
Closure of loss of earnings (LOE) benefits on February 3, 2012
Denial of ongoing entitlement beyond February 15, 2012
Employer
Allowance of initial entitlement
Denial of aggravation basis and recurrence
Quantum of SIEF cost relief
BACKGROUND:
On July 28, 2011 this then 46-year-old worker claimed injuries to his low back and left knee after pulling a 600 lb. skid of material. At the time of injury the worker had been employed with (company). as a LV Operator.
The initial diagnosis was for low back strain and a left knee strain. Treatment post-accident was conservative consisting of analgesics and physiotherapy treatments.
The worker had a prior low back claim ‘A’ where full recovery was noted. He also had a 12% Non-economic Loss (NEL) award for bilateral knees under prior claim ‘B’.
Full Loss of Earnings (LOE) benefits were paid as of July 29, 2011.
The employer then offered modified duties in visual inspection and computer work as of September 19, 2011.
On October 6, 2011 the worker reported neck pain which he related to the original accident. After review entitlement for the neck was denied as there were no objective medical findings or diagnosis of a neck condition. Further, that compatibility between the neck complaints and the mechanics of accident could not be established.
On November 7, 2011 a Return to Work Specialist met with the employer and determined that the modified duties were suitable given the medical precautions. The worker did not attend this meeting due to transportation issues.
On December 2, 2011 the worker was assessed through a local Regional Evaluation Centre. The results recommended a 6 week graduated active/work conditioning program.
On December 16, 2011 a WSIB Medical Consultant reviewed the existing medical reports and offered the opinion that the worker had suffered a low back strain and left knee strain as a result of the July 28, 2011 accident. It was indicated that the worker was partially impaired and fit for modified duties.
On January 5, 2012 the Case Manager reviewed the existing medical information and concluded that entitlement was allowed for a low back strain and left knee strain. Any other symptoms were due to significant pre-existing degenerative conditions in the low back and knee. As such there was no entitlement for aggravation basis or the degenerative conditions.
A second return to work meeting with the workplace parties was suggested for January 30, 2012. On January 20, 2012 the worker refused to attend this meeting or return to the modified duties offered.
As a result the LOE benefits were reduced to 50% from January 21, 2012 to February 3, 2012 and then closed as of February 3, 2012.
On April 2, 2012 the Case Manager concluded that based on the medical reporting that there was no evidence of an aggravation of the low back or left knee and no evidence of a recurrence under either claim A or B.
On May 31, 2012 the claim was reviewed for Second Injury and Enhancement Fund cost relief and awarded 25% based on a major accident and moderate pre-existing condition.
On May 16, 2012 arthroscopic surgery was performed on the left knee. This was not considered to be the responsibility of this claim.
On January 2, 2014 the worker formally objected to the denial of entitlement for degenerative conditions, the reduction of loss of earnings (LOE) benefits on January 20, 2012, the closure of loss of earnings (LOE) benefits on February 3, 2012, and the denial of ongoing entitlement beyond February 15, 2012.
On February 19, 2014 the employer formally objected to the allowance of initial entitlement, the denial of an aggravation basis and recurrence, and the quantum of SIEF cost relief.
AUTHORITY:
Policy No: 11-01-01 : Adjudicative Process
Policy No: 14-05-03 : Second Injury and Enhancement Fund (SIEF)
Policy No: 15-02-04 : Aggravation Basis
Policy No: 15-02-05 : Recurrences
Policy No: 18-03-02 : Payment and Reviewing LOE Benefits (Prior to Final Review)
Policy No: 22-01-03 : Workers’ Co-operation Obligations
ANALYSIS:
The employer and worker representatives provided various arguments related to the issues under objection through the original objection form, worker testimony, and photographic/video evidence.
For the purpose of a logical flow the issues under objection will be discussed independently according to the adjudicative process beginning with initial entitlement. The representatives’ specific arguments will be presented under each sub-heading. Each sub-heading will identify the source of the issue under objection.
Worker Testimony:
The worker testified that when an improper skid was stuck in a machine he used a pump truck to pull the skid out. He stated that he pulled on the pump truck 5-6 times and felt immediate pain in his back and left knee.
The worker stated that prior to the incident he was not experiencing any back or left knee pain.
The worker confirmed that he did not ask for help or report his pain to anyone on the day of accident as he thought it would settle down. He completed his shift and the next day when attempting to empty some garbage he felt searing pain in his back. He e-mailed his supervisor about the injury and left work without speaking directly to anyone.
He stated that he sought immediate medical attention and was prescribed eight to ten Percocet’s per day.
He testified that the employer initially offered modified duties verbally but did not exactly specify the duties. Due to pain and medication he could not accept the offered duties.
The worker then testified that when the formal offer was presented to him the employer had rescinded the provision of providing transportation and as such he could not drive to the job site due to pain and the Percocet.
The worker testified that when he indicated he could return to work the employer required medical clearance and that he was not taking any narcotics. He then claimed that he had no further contact with the employer and he never returned to work or received notification that he had been terminated.
He stated that on May 16, 2012 he had arthroscopic surgery on his left knee and that he would have been capable of returning to work as of September 2012.
With respect to the video surveillance he testified that he was not performing anything outside of his medical precautions.
The worker confirmed that he secured alternate employment in 2014 and that he remains taking four Percocet per day for pain relief.
In reaching this decision I had regard for the worker arguments and testimony, the employer arguments, Operational Policy and the Act.
- Allowance of initial entitlement (Employer):
The employer representative argued that the worker provided six different accident histories which casts doubt on the validity of the alleged accident. In addition the photographic evidence contradicts the workers’ version of the accident as a lift truck could not have fit into the improper skid. Also that it was impossible for the worker to move the 600 lb. skid due to the weight and location.
The worker representative argued that there was a definite accident involving the low back and left knee. The differing accident histories are irrelevant as the ‘five point check system’ was satisfied.
Policy 11-01-01, Adjudicative Process, stipulates:
“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.”
In considering this issue it is accepted that the criteria of employer and worker are met.
The criteria of a personal work related issue, and proof of accident must now be established.
In completing the Form 7 the worker stated to the employer:
“According to (the worker) on July 28 he had used the wrong skid for the job he was running and couldn’t get the skid of product out of the delivery of the machine. He tried to pull it out from the side and hurt his back and knee doing so. The skid of product was 600 pounds and he inched it out a bit at a time.”
On July 29, 2011 after throwing out some garbage the worker felt back and knee pain and left the employer’s premises and went to the Emergency Department of a local hospital for examination.
On the Health Professional’s Report (Form 8) dated July 29, 2011 the Emergency Department physician indicates that in response to the question of, “how the injury occurred at work”, the worker stated:
“Pulling on skid mover pain in left back today at work, increased numbness left and thigh”
In the chart notes from the hospital and the physician dated July 29, 2011 it indicates:
“jack to move skid – wrong size skid – tugging back pain ...(patient) throw out waste to garbage then noted back pain radiates to left leg. C/O numbness”
On the Health Professional’s Report (Form 8) dated August 3, 2011 the family physician indicates under, “how the injury occurred at work”:
“at work pushing a 600lb skid and sudden Lt lumbar and Lt knee pain.”
On the Worker’s Report of Injury/Disease dated August 17, 2011 he states:
“I injured back & left knee while dragging a skid from the back delivery of print press. Skid was 650 pounds, stacked with 1200 printed sheets.”
On the Health Professional’s Report (Form 8) of August 22, 2008 that the worker informed the physiotherapist that:
“(Patient) was lifting a loaded skid manually as part of his job. After the 5th/6th lift he felt terrible knee and back pain.”
On September 20, 2011 the Case Manager questioned the worker on the accident history and the worker stated:
“Reported to the A.E. he injured low back and left knee when he moved a 600 lb. skid by hand. He indicated he was able to drag the skid one foot approx. by tugging on it only because the way it is set up into the machine it is on an incline. As he pulled back it is coming back on a approx. 10 degree slope. There are guides on either side. He felt discomfort but finished up the task and able to get the pallet jack under after he got it out between the rails.”
Under direct questioning from his representative on April 2, 2015 the worker testified that:
“Approximately 7 o’clock the job was finished- I did not have the proper job handling equipment to take the skid off the back of the delivery – it was a very important run that needed to be at the back before I went home as it was going out at 6am the next morning. The equipment that I had and the skid that was in the delivery of the press I couldn’t access taking it out of the delivery. I had to in essence jury rig the BT lifter inside one slat of the skid in order to tug it out 6” required where I could pull it out after that. After tugging it 5-6 times that’s when I felt the pain in my back and left knee.”
As can been seen from this reporting there are definite discrepancies in the accident history. At times the worker states he was using a lift truck to move the skid, at other times he states he was manually pulling and dragging the skid, and at another time he was manually lifting the skid.
There are times where the left knee is mentioned and other times where pain is described as radiating into the left leg. The description of pain also varies from “terrible” to merely discomforting.
In all of this reporting it is the worker providing direct testimony to the various individuals of his description of the accident and the results. It is unlikely that these individuals could so misinterpret his statements that they change the accident history to the degree reported.
In addition at the time of the hearing the employer representative produced hard copy reproduction of a power point presentation and photographs proving that a pump or lift truck as described by the worker would not have been able to fit into the improper skid.
In addition this photographic evidence clearly demonstrates that there is not enough room between the machine and the skid to manually manipulate a loaded skid weighing 600 lbs.
This evidence makes it impossible to objectively establish proof of accident.
In addition I find the following evidence compelling:
The worker claims he injured his low back and left knee on Thursday July 28, 2011 when he attempted to move a skid which was fully loaded with printed material from a print press. The worker confirmed in his testimony that there were no witnesses to this event and he did not report the event to anyone during his shift.
Information on file indicates that the worker has a number of prior claims which would make him familiar with his reporting obligations and the accepted process of reporting.
According to the Employer’s Report of Injury/Disease (Form 7) the worker reported to work on July 29, 2011 and met with his supervisor where he was informed that his shift was changing. At no time did he report any injury from the previous evening.
A co-worker provided a statement that on Friday July 29, 2011 the worker did not mention any accident or injury to him and was not observed to be in any pain or limping.
The worker then indicates that when he attempted to empty some garbage into a bin he felt immediate back pain and e-mailed his supervisor that he had been injured the night before and left to seek medical treatment.
The supervisor arrived on the premises as the worker was leaving and the worker did not speak to the supervisor. He testified that he did not feel the need to speak to the supervisor has he had e-mailed him regarding his accident the night before.
Given the circumstances the worker clearly had ample opportunity to report the accident to either co-workers or supervisors on the day in question or the following day in person but only did so through an e-mail.
While this does not discount the fact that he reported the accident it does question the working relationship between the worker and the employer. Particularly given the worker refused to come into the employer’s premises to complete the accident investigation and his ultimate refusal to attend the last return to work meeting or accept the modified duties.
These actions lend certain credibility to the employer’s assertion that the worker was upset regarding a previous insubordination issue and the shift change issue, which in turn may have motivated his behavior.
The worker testified that when he attempted to throw the garbage out on July 29, 2011 that he felt a burning in his left knee. However, the Emergency Department physician does not record any specific complaints regarding the left knee only pain radiating from the back into the left thigh/leg.
During the course of the file the worker consistently maintains an inability to drive to the employers’ premises due to pain and the effects of his medication, which he maintains was between four and ten Percocet per day.
At no time did any physician record this as a concern or inform the Ministry of Transportation which the physician is legally bound to do when prescribing narcotics which affect the workers’ ability to operate a motor vehicle.
From the video surveillance it is apparent that the worker is capable of mobility and driving with no apparent difficulty. He is even observed to be able to ride a pedal bike with no apparent discomfort or limitation.
In summary there are numerous discrepancies regarding the mechanics of accident, the level and location of pain at the time of accident and afterward, and the level of impairment at the time of accident and afterward.
I find that based on the medical and vocational evidence, and the workers’ statements and testimony that proof of accident cannot be established. As a result there is no entitlement for an accident occurring on July 28, 2011 under this claim.
As initial entitlement has been rescinded the other issues under objection by the worker and employer are now irrelevant.
CONCLUSION:
- I conclude that based on the medical and vocational evidence, the workers’ statements n file, and testimony that proof of accident cannot be established. As a result there is no entitlement for an accident occurring on July 28, 2011 under this claim.
- I conclude that as initial entitlement has been rescinded the other issues under objection by the worker and employer are now irrelevant.
The worker’s objection is, therefore, denied. The employer’s objection is allowed.
Dated : April 17, 2015
R. Sheridan
Appeals Resolution Officer
Appeals Services Division