WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190062
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Participating via Written Submission)
REPRESENTED by: Self
HEARING: Oral Hearing on November 5, 2018
HEARD by: A. Danos, Appeals Resolution Officer
DATED: December 3, 2018
ISSUE
The worker objects to the Eligibility Adjudicator’s decision dated January 15, 2016 which denied initial entitlement to a right L4-5 paramedian disc herniation.
BACKGROUND
This now-42-year-old Caseworker developed a gradual onset of low back pain starting July 2015. He was diagnosed with a right L4-5 paramedian disc herniation, and attributed this to the prolonged sitting required at his job. The accident date has been established as July 17, 2015.
In a decision dated January 15, 2016 an Eligibility Adjudicator denied initial entitlement to benefits, stating the diagnosis was not compatible with the accident history.
The worker is objecting to the decision dated January 15, 2016. He requests initial entitlement to L4-5 paramedian disc herniation as a disablement arising out of and in the course of employment.
AUTHORITY
The following Operational Policies apply:
- 11-01-01 – Adjudicative Process
- 15-02-01 – Definition of an Accident
ANALYSIS
The Hearing
The employer did not attend the hearing but did participate via written submissions.
At the hearing the recording device was not functional. The worker representative said he had no concerns and we proceeded with the oral hearing.
Opening statements
The worker representative stated the worker requests initial entitlement to L4-5 disc herniation and surgery on the basis of a disablement arising out of and in the course of the worker’s job duties as a caseworker, or as an aggravation resulting in the need for surgery.
The worker representative stated the worker’s testimony would show that prolonged sitting and repetitive pivoting as part of his daily work requirements led to the inability to continue working. If initial entitlement is allowed he requests the Appeals Resolution Officer (ARO) direct the operating area to determine the level and duration of loss of earnings (LOE) and other benefits arising from the decision.
The employer’s written submission provided the position that no causal relationship has been established between the worker’s job duties, his reported lower back condition or the diagnosis of disc herniation.
Testimony
The worker testified he has been employed for 19 years as a caseworker for employment and social services. He determines a client’s entitlement to Ontario Works benefits and assesses eligibility for social assistance.
The worker stated that he meets with clients in the office where he works, and conducts interviews in a booth located in a common area. He said he normally does 3 interviews a day, each taking one or two hours.
The worker described the interview booth as about 6’ by 10’, consisting of a desk with a computer to the right of where he sits facing a client. He is required to turn to the right to enter information into the computer. He said that varied information is shown, such as a client’s address and bank account details. The worker said he is responsible for populating each field with data, including narrative information.
The worker said the seat is a swivel chair which is adjustable, but the desk is not adjustable. He said the keyboard is on a tray which is adjustable to a limited degree with respect to the angle.
The worker described his own personal work area consisting of a computer and monitor in front of him with an area on the right where he can write. He said when he works in this space there is prolonged sitting. He said that when not conducting interviews in the booth he would work in this area doing phone calls and write-ups.
The worker agreed that he was able to sit or stand as required. However, he would have to be seated in order to be able to do the actual work. The desk at the time did not have sit/stand capacities, so it would be impossible for him to do desk work while standing up. He clarified that the current desk setup at work does have a button so it can be adjusted for sitting or standing, but that was not the case when he experienced the onset of his low back symptoms.
At the time of the onset of his low back condition, he worked from 8:30 to 4:30 with two 15-minute breaks and an hour for lunch. This was a total of 6.5 working hours per day.
The worker disagreed with some of the employer’s details on the job description they faxed on February 8, 2016. He disagreed that there is “frequent interruption” to the prolonged sitting. He said there might be occasional getting up to do photocopying such as a client’s identification or documentation. However, that would normally take about 30 seconds.
The worker also disagreed regarding the amount of walking. He testified that the only walking would be to go to the interview area from his desk, or occasionally to talk with a co-worker. Aside from these examples, the work required sitting all day. The worker explained it was not possible to perform the work duties unless sitting down.
The worker said there was absolutely no way to work in a standing position regarding the platform position / keyboard setup described by the employer. He said it just refers to a tray for the keyboard. If he were to stand while using this, he would have to bend or hunch over just to type.
The worker denied any non-work-related accidents, incidents or injuries, and stated he had been involved in no motor vehicle accidents. He stated he never had any sports injuries.
The worker said that starting around July 2015 he began to notice back pain. He found the only relief came from standing but then he was unable to perform his work. He said he noticed the pain gradually going down towards the gluteal area and down his leg, and found it was easier to walk sideways. He said that everyone noticed this, and it gradually got worse.
The worker said he went to several walk-in clinics as his family doctor had left for xxxx a year earlier with no prior notice. The attending doctors provided no specific treatment other than to strengthen his core and take medications. Initially no investigations were recommended.
The worker spoke about the chart note which stated he had hurt his back playing baseball. He testified he has never hurt his back playing baseball. He said he had no idea why his doctor would write that on the chart note. The worker said he told every doctor he saw that he had not done anything specific, and said their reaction was to raise an eyebrow as if to suggest he must have done something. The worker testified he has played baseball in the past, but not in 2015, and never had an injury from playing.
The worker stated that when he was unable to stand the pain anymore, he went to xxxx Hospital for emergency treatment. He had to leave work early that day to get treatment, and said there was no specific incident. At the hospital they did an MRI and that showed L5 disc herniation.
The worker said he was referred to a pain management clinic for injections to his low back. He said that didn’t help, nor did chiropractic, physiotherapy or osteopathic treatment. In early 2016 the worker saw an orthopaedic surgeon who said the MRI showed bad findings and that he was surprised the worker was even able to function. The specialist said the worker needed emergency surgery.
In February 2016 the worker underwent surgery, and since his return to work he has been working with modifications.
Closing statements
The worker representative provided closing submissions, stating the job description on file is inaccurate. He notes the job was modified but not at the time of the onset of the worker’s back pain. The worker testified he has had no outside injuries and there is no evidence against his testimony. The worker believes the constant sitting and pivoting from side to side are compatible as the cause of his disc herniation, either as a disablement or as an aggravation.
The worker representative points out there are numerous medical notes which state that prolonged sitting is an issue. He said it remains unknown why the doctor referred to a baseball injury and the other medical information does not support it. As shown on file, the information pre-dating the baseball reference already cited prolonged sitting as a factor and included thorough details regarding the worker’s gradual onset and lack of pre-existing issues. Therefore there would have been no reason for the worker to either reveal or conceal any such instance.
Ultimately the baseball comment is inconsistent with all the other information on file.
The worker representative reiterated the worker’s position that in the absence of any other explanation, the work-related prolonged sitting and pivoting has either caused or aggravated his condition. If the claim is allowed he requests loss of earnings (LOE) and other benefits be determined at the operating level.
The employer’s position was provided in writing. The employer submitted the evidence did not support the worker’s low back condition was the result of his work duties. The employer quoted from the medical opinion dated January 26, 2016 which stated the worker’s prolonged sitting as a Caseworker is likely not the sole causative factor for his L4-L5 paramedian disc herniation.
The employer states the worker’s workstation and equipment design allows work in neutral postures with moderate sitting demand and no strength demands, and notes there is no need to handle any items over 2 kg in weight. Workers have the opportunity to stand and move around throughout the day and have the use of a fully adjustable task chair and adjustable keyboard platform.
The employer states there is no medical evidence to support the injury resulted from the worker’s employment. The employer agrees with the operating area’s decision to deny initial entitlement in this case.
Assessment of the Evidence
Policy
Policy Document 11-01-01 states:
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.
When examining proof of accident, decision-makers may consider the following:
- 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?
Policy Document 15-02-01 states:
The definition of an accident includes:
- 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.
The definition of disablement includes a condition that emerges gradually over time, and an unexpected result of working duties.
Analysis
The evidence supports the worker’s job duties contributed to a right L4-5 paramedian disc herniation.
In reaching my conclusion I considered the claim file record as well the worker’s testimony, final submissions from the worker representative and written submissions from the employer.
I reviewed the accident history, job description and medical information to determine initial entitlement as follows:
Accident history
The worker’s description regarding the onset of his low back symptoms has not been rebutted. He first sought medical treatment on July 14, 2015 for sciatic symptoms. With one exception all the medical records show the worker stated there was no specific incident or event which caused the pain, and he described his job as involving prolonged sitting.
The exceptional medical record is Dr. Ho’s handwritten notation which is not clearly dated; there is a date-stamp of November 12, 2015 with another unclear date possibly October 23 or October 28, 2015. However, Dr. Ho’s own earlier typed notation dated October 8, 2015 already described the onset as insidious and provided no specific accident history.
The worker has denied reporting to Dr. Ho that he hurt himself playing baseball. Even though he confirmed he has played baseball in the past, the worker said he was unable to do so in 2015 because of his back pain. As such and in the context of all the other information available, for the worker to report a baseball incident as the cause of his condition makes no sense.
Therefore I find the most reliable accident history is that of gradual onset with no specific incident.
Job Description
The worker’s description of the duties he performed prior to the onset of low back symptoms has not been rebutted.
The worker’s testimony was generally the same as the information provided on the Job Demands Analysis (JDA) on file. However the worker clarified some information which I find not inconsistent with the JDA.
For example the worker addressed the issue of being able to sit or stand as required. He agreed it was possible to sit or stand, but explained that if standing he would not be able to complete the writing or data entry tasks. As per the worker’s testimony the desks at the time of the onset of symptoms did not allow for adjustments to enable immediate switching between sitting and standing. I note the date on the JDA shows it was updated September 2015 which was after the worker’s symptoms arose.
The worker also confirmed that he would indeed have to walk from his own desk to the common interview area to meet with clients, or walk to speak with a co-worker. However, this would account only for up to 30 seconds at a time, followed by up to 2 hours of sitting.
In my review of the matter, adjustable chairs or adjustable keyboard trays would not negate the requirement for remaining in a seated position. The information does support that for most of the 6.5 working hours in a typical workday, even if he was allowed to stand or walk on occasion, the worker was sitting. Therefore I find the worker’s pre-accident duties may be characterized as involving prolonged sitting.
Medical Compatibility
The information supports medical compatibility between the worker’s job duties and the development of the L4-5 paramedian disc herniation.
The medical information shows the worker required treatment for a large L4-L5 paramedical disc herniation likely impinging the L5 nerve root. All of the worker’s treating doctors were aware of the accepted accident history of gradual onset of symptoms, prolonged sitting and the absence of any specific event. None of the worker’s treating doctors indicated doubtfulness regarding a possible link between the accident history and the diagnosis.
This alone might be supportive of initial entitlement but the worker’s doctors appeared only generally aware of the worker’s work environment. However, as outlined in a medical opinion dated January 26, 2016 a medical consultant reviewed the case and considered not only the detailed medical history but also the worker’s employment history of 15 years at a job which required sitting 6.5 hours per day.
Crucially the medical opinion of January 26, 2016 acknowledged the worker would be able to stretch and move around during the lunch and break periods, yet still considered the worker’s situation as prolonged sitting. The medical consultant noted the worker’s statement that there never was any specific incident and also that the worker said his doctors told him his profession caused and contributed to his deteriorating condition.
Although the medical consultant stated that prolonged sitting was not likely the sole causative factor for the worker’s disc herniation, this formed only part of the physician’s comment which in its entirety stated:
While [the worker’s] prolonged sitting as a caseworker is likely not the sole causative factor for his right L4-5 paramedian disc herniation it reasonably has played a role in its development. After reviewing this file it is this assessor’s opinion that [the worker’s] right L4-5 paramedian disc herniation is, in part, compatible with his sedentary job duties as a caseworker, requiring sitting for an average of 6.5 hours per day, over the last 15 years.
Noting the above, in this case the medical evidence supports compatibility between the worker’s pre-accident job duties and the development of a right L4-5 paramedian disc herniation.
Summary
The worker experienced a gradual onset of symptoms with a diagnosis of right L4-5 paramedian disc herniation, which has been determined as medically compatible with the worker’s job duties.
According to policy, an allowable claim must include compatibility of the diagnosis to the accident or disablement history; the definition of a disablement includes a condition that emerges gradually over time.
In this case, the worker’s claim meets the policy requirements of an accident (disablement) and medical compatibility of the diagnosis to the disablement history. As such, I find the worker has initial entitlement for the diagnosis of right L4-5 paramedian disc herniation.
CONCLUSION
I conclude the worker has initial entitlement to right L4-5 paramedian disc herniation. The operating area is to determine the level and duration of benefits, with any new decisions subject to appeal according to the normal process.
The worker’s objection is allowed.
DATED: December 3, 2018
A. Danos Appeals Resolution Officer Appeals Services Division