Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision number: 20172024 Objecting Party: Worker Represented by: Union Services Respondent: Employer Ltd – Not Participating Hearing: Oral Hearing Date: June 27, 2017
Issue
The worker is objecting to the decisions dated July 18, 2016 and January 31, 2017 that denied initial entitlement for a lower back injury.
Background
This now 56 year old roofer was hired by Employer Ltd in October of 2015.
On June 21, 2016 the worker injured his lower back while on his knees cutting out a flange (pipe flashing) with tin snips. According to the worker, he reported the incident immediately and left the work site to seek medical attention with his chiropractor who diagnosed a disc herniation at L5-S1. The employer claimed that the worker did not report the incident until June 29, 2016.
Case Decisions
On July 18, 2016 the Eligibility Adjudicator reviewed the details of the case and determined that proof of accident was not established and the mechanism of injury that was not compatible with the diagnosis of disc herniation at L5-S.
On January 31, 2017 the Eligibility Adjudicator conducted a reconsideration however the decision to deny initial entitlement was upheld.
Worker’s Position
The worker objects to these decisions. The worker representative, on behalf of the worker submitted an Appeal Readiness Form and included a medical report from a neurologist and clinical notes from the family physician.
Respondent’s Position
The employer is not participating in the appeals process.
Authority
The following Operational Policies Apply:
- 11-01-01 Adjudicative Process
- 11-01-02 Decision Making
- 11-02-02 Lost Time Claims
- 15-02-01 Definition of an Accident
- 15-02-02 Accident in the Course of Employment
Exhibits
- Exhibit A – copy of a medical note from Dr. Susan George dated July 20, 2016
- Exhibit B – copy of a medical note from Dr. Ashton dated June 29, 2016
Analysis
In my review I have had regard for the claim file information, relevant policy, legislation, testimony provided by the worker as well as submissions provided by the worker representative at the oral hearing on June 8, 2017. I have considered all the evidence and the following is a summary of my decision.
Issue: Initial entitlement – Specific Work Accident – June 21, 2016
I am satisfied that the activities that the worker performed on June 21, 2016 resulted in a work-related lower back injury. I find that the criteria required allowing initial entitlement for a lower back injury has been met.
In arriving at this decision, I had regard for Policy 15-02-01 – Definition of and Accident – that sets of the definition of an accident to include:
- 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.
In this policy a chance event is defined as an identifiable unintended event which causes an injury whereas a disablement can include a condition that emerges gradually over time or an unexpected result of working duties.
According to Policy 11-01-01 – Adjudicative Process – when considering a worker’s initial entitlement to benefits, decision-makers apply the analytical framework that is known as the five point check system that sets out the criteria that must be present in order to establish a worker’s initial entitlement as a result of a work-related injury. It states an allowable claim must have an employer, a worker, a personal work-related injury, proof of accident, and compatibility of diagnosis to accident or disablement history.
In this case, the issue to be resolved is whether there is proof of a workplace accident that occurred on June 21, 2016. Compatibility would be secondary to the acceptance of proof of a workplace accident and resulting injury.
In his testimony, the worker provided the following explanation of the state of his lower back prior to June 21, 2016 and mechanism of injury:
- He has worked as a journeyman roofer for over thirty years and was with the employer, a commercial and industrial roofing company for approximately ten months.
- Prior to June 21, 2016 his back was good. He confirmed a previous lower back injury from 2002/2003 and since the recovery of this injury he has not lost time from work or required modified work. He sought chiropractic treatment for maintenance only.
- He had an MRI in 2012 because his back felt “pinchy”. Testing was normal and revealed age related degenerative changes.
- The worker provided a description of the duties that he can perform as a roofer. The work that he does is mostly re-roofing. The roofs are made up of tar and gravel. He would use a machine to cut the roof up into pieces. The pieces are then lifted and shovelled into carts and pushed to the end of the roof and dumped into a bin on the ground. He would also sweep or blow the roof deck clean. Once the old roof was removed he would apply a vapour barrier with glue, apply insulation and then four ply tar paper which was applied using hot tar. The tar was placed in a buggy with wheels and he would use a 30 pound mop to apply the tar to the roof.
- Other tasks that he would perform included removing flanges from the old roof. He would use many different tools including shovels for prying, pick axes, axes, roof lifter, hammers, skills saws and utilities knives, sawzall and screwdriver.
- On June 21, 2016 after arriving at work he changed into his work clothes and had his work boots in hand. He went down on his knees with a hammer to pound the tar and gravel off his boots. Upon standing up from his knees he felt a pinch in his back however he did not think that much about it. He ascended the ladder and climbed about 25 feet up to the roof deck to start work.
- His first job was cutting out a flange. He was on his hands and knees and started by beating the collar off with a hammer and then took the snips to start cutting out the flange. He pulled the tar mat which was heavy and awkward up and away from the flange with his left hand and started cutting out the flange with the snips with his right hand. The worker explained that you can only cut so far with the snips and then he would have to grab the mat and start to pull it away from the flange which was embedded into old roofing material and required pulling and twisting manoeuvers to remove it completely. He would have to “put his back into it” (emphasis added) as he had to get the flanges out quickly.
- After removing the first flange, he stood up and felt a pinch and discomfort in his lower back. He continued working and helped another co-worker attempt to start a roof cutting machine. This required that he make several pulls with both hands on the pull cord to try and start it.
- He returned to remove a second flange and was on his hands and knees again. He reached around the flange to start cutting and experienced a sharp pain in his lower back and burning down his legs. After standing up, he found that he could not completely straighten up.
- He reported to his supervisor that he thought he put his back out and he was told by the supervisor to take it easy however he could not continue to work. He also spoke with another crew member, a younger man who was in training for Health & Safety and was the acting Health and Safety representative on the work site.
- The Health and Safety representative helped him down the ladder and assisted him with changing into his regular clothes. He asked the Health and Safety representative for a form to report a work injury and to get a hold of the Health and Safety Manager. No one offered to take him for medical treatment and he drove himself to seek medical attention.
- Initially he was able to see his chiropractor and later that day, he was assessed by his family physician.
In terms of reporting the work injury, the worker provided the following testimony:
- He reported lower back pain immediately to his supervisor.
- He reported lower back pain to the acting Health and Safety representative on the site who helped him get off the roof deck and into his vehicle to seek medical attention.
- He called the shop and spoke to the Superintendent.
- He tried to connect with the Health and Safety Manager for the Cambridge area and supposed to meet with him to discuss RTW however the Health and Safety Manager never called him to set up a time to meet.
- About two weeks after the injury he had to contact the office to request a Record of Employment so that he could claim Employment Insurance. He never received a copy of this document.
- He left messages for the Regional Health and Safety Manager however she never returned his calls.
The worker representative reiterated the mechanism of injury provided by the worker during his testimony and argued that working as a commercial/residential roofer is physically demanding. The worker testified that he was symptom free prior to starting work on June 21, 2016.
The representative noted that memorandum #2 dated July 8, 2016 and memorandum #6 dated July 15, 2016 document conversations with the incident employer that are contradictory. The employer stated that they were not aware of a work incident yet in memorandum #2 the Health & Safety Representative confirmed that the worker needed to go home early on June 21, 2016 because he was experiencing back pain. The worker was instructed to move forward and submit his Form 6 since the Form 7 had not as yet been submitted. The employer alluded to a miscommunication which was why their Form 7 was late.
In memorandum #6 the employer stated that on June 21, 2016 the worker told the foreman that his back was sore within 15 minutes of the job start. According to the employer, the worker did not report anything specific or work-related; he was a no call and no show from June 22, 2016 until June 29, 2016. He was supposed to attend the office on July 5, 2016 for a Return to Work (RTW) meeting and he was a no show. According to the employer, the worker did not report a work injury until July 6, 2016.
The worker representative referenced the worker’s testimony and confirmed that the acting Health and Safety representative on site knew that the worker’s lower back symptoms arose from his work activities. This is confirmed by the copies of the text messages sent back and forth between the worker and the acting Health and Safety representative, copies of which were provided in the March 21, 2017 correspondence. The employer was aware that the worker was off work due to his work-related lower back injury, again confirmed by the copies of the text messages sent back and forth between the worker and the acting Health and Safety representative. Although the employer indicated that the worker did come into the office on July 5, 2016 to meet with the Health and Safety Manager, the worker testified that he was waiting for this individual to set up an appointment however the worker never heard from him. Again, copies of the worker’s text messages support that the worker reached out to the Superintendent and requested that the number for the Health and Safety Manager because he had not as yet heard from him.
The worker representative provided arguments to suggest that the mechanism of injury was not accurately captured by the Eligibility Adjudicator and that in fact, based on the worker’s testimony, the activity that he performed on June 21, 2016 was heavy and forceful. The neurologist who assessed the worker on November 25, 2016 opined that his back injury was work related considering that the worker likely twisted while taking the tar off his shoes and then clearly ruptured a disc when he was pulling on metal on the roof. The worker was diagnosed with a small disc protrusion and when considering the WSIAT Medical Discussion Paper with respect to disc protrusions, the representative noted that the discussion paper confirms that simple activity such as bending; twisting or lifting may generate sufficient forces within the disc to cause it to protrude. There are a number of factors which have been related to a higher incidence of disc protrusion. These are primarily those of vocational choices such as construction work and other manual employment. The representative also noted that the Eligibility Adjudicator did not seek out a medical opinion from the WSIB Physician and that this could have addressed the issue of compatibility.
In assessing this case in terms of proof of accident, I have reviewed the medical documentation on the case record which supports that the worker sought immediate medical attention with his chiropractor on June 21, 2016 and a Form 8 was completed. Clinical notes provided by the family physician also support that the worker was assessed on June 21, 2016 for a work-related lower back injury. Both medical reports mirror the mechanism of injury provided by the worker in his testimony.
In considering whether the criteria required allowing initial entitlement has been met the evidence supports that there is a worker and employer. On June 21, 2016 the worker was performing duties that were incidental to his job as a commercial/industrial roofer and he performed activities which caused immediate pain in his lower back. He reported immediately to his supervisor and sought immediate medical attention and was placed off work. Given these findings, I am persuaded that proof of accident has been established and that the worker sustained a personal work-related injury with respect to his lower back on June 21, 2016.
I have placed significant weight on the arguments and submissions put forth by the worker representative. The medical opinion provided by the neurologist that assessed the worker supports a work-related lower back injury and I note that there is no other medical documentation on the case record that is contrary to this opinion. The diagnosis of a small disc protrusion, in my view, is compatible with the mechanism of injury provided by the worker.
Consequently I find that proof of accident has been established for a lower back injury as a disablement, unexpected result of work duties. The diagnosis of disc protrusion is compatible with the mechanism of injury and initial entitlement is accepted.
According to the Appeals Services Division (ASD) Practice & Procedures document in effect as of January 1, 2017, in all cases, the benefits that flow from a decision will be considered part of the issue agenda. The ARO will be responsible for ruling on benefits only to the extent that reliable information is either contained in the file or readily available to the ARO.
The worker provided the following testimony with regards to his situation after the work incident as follows:
- At no time did the employer discuss or offer modified work.
- He was given medication for pain by this family doctor and because he is not used to taking medication, he was out for a few days.
- He maintained contact with the acting Health and Safety representative through text messaging and he and a few other co-workers were the only ones who stayed in contact with him. He did not hear back from the employer and is not sure if in fact he is still an employee of the company given that he did not receive a copy of the Record of Employment.
- He did not participate in treatment after the injury. Although the neurologist advised him that he required physiotherapy he did not have the money to cover treatment. He feels that with treatment he would hopefully be able to resume employment.
- He stopped working on June 21, 2016 and after the initial attempts at communicating with the employer, he did not continue to reach out to the employer about return to work. He has not looked for work since and has been in receipt of both short term and long term disability through the company.
- In terms of the family physician clinical notes dated October 5, 2016, the worker testified that on October 1, 2016 he was doing chores around the home and put his back out again. The worker explained that he was stacking small pieces of wood and twisted and felt pain again.
Policy 11-02-02 states that a worker may be entitled to benefits/services if the worker suffers a work-related injury/disease and the worker loses time from work, has a loss of wages/earnings, or has a permanent disability/ impairment.
Decision-makers review the information on file to determine a worker's entitlement to benefits. Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.
Although the employer’s Form 7 documents that modified work was discussed and offered to the worker and that the worker declined the offer, I am unable to find any evidence that modified work was made available to the worker, either verbally or written. The worker testified that at no time did the employer offer modified work to him.
Additionally, I note that the Form 8 dated June 21, 2016 authorized the worker off work due to a lower back injury and the subsequent medical notes dated June 29, 2016 and July 7, 2016 continue to support an inability to return to work. The assessment conducted by a neurologist on November 25, 2016 found that the worker required physiotherapy and that if after treatment the pain had not settled, it would be reasonable to refer the worker to a back surgeon.
In terms of entitlement to a loss of earnings benefit, based on the worker’s testimony and the documentary and medical evidence available to me, I find that the worker is entitled to a full loss of earnings benefit from June 22, 2016 until November 25, 2016, the date that he was assessed by the neurologist.
In order to make further decisions in terms of entitlement to additional benefits and services under the insurance plan, I find that it is reasonable to consider a referral to the WSIB Back and Neck Clinic in order to clarify the current diagnosis, prognosis, treatment and the worker’s ability to return to work. The level, nature and duration of entitlement to WSIB benefits and services will be left to the discretion of the Operating Area to determine once the worker has completed the low back assessment, subject to the usual rights of appeal.
Conclusion
I conclude:
Initial entitlement for a lower back injury with a diagnosis of disc protrusion is allowed.
The worker is entitled to a full loss of earnings benefit from June 22 until November 25, 2016.
The worker is to be provided with an assessment at the WSIB Back and Neck Clinic in order to clarify the current diagnosis, prognosis, treatment and the worker’s ability to return to work. The level, nature and duration of entitlement to WSIB benefits and services will be left to the discretion of the Operating Area to determine once the worker has completed the low back assessment, subject to the usual rights of appeal.
The objection is allowed.
DATED June 27, 2017
D. Gowanlock Appeals Resolution Officer Appeals Services Division