Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190096 Objecting Party: Worker Represented by: Worker Representative Respondent: Employer (not participating) Hearing: Oral hearing on August 14, 2019 Heard by: K. MacMillan, Appeals Resolution Officer Dated: August 22, 2019
Issue
The worker is objecting to the Eligibility Adjudicator’s March 30, 2017 decision to deny initial entitlement for the low back and left hip.
Background
On August 23, 2016, this now 47-year old carpenter (and owner of the business) experienced low back pain lifting a heavy beam with a rope. A second incident involving hoisting a ledger occurred on August 29, 2016 after which he modified his duties to try to avoid lifting as much as possible.
The worker noticed progressively worsening pain over the late summer and fall months of 2016. The worker saw his family doctor on September 28, 2016. The worker had a coughing incident on December 12, 2016 and found it difficult to stand on December 13, 2016. On January 6, 2017, the worker experienced a further increase in symptoms after slipping and falling onto the frozen ground several times at a jobsite. MRIs of the lower back, sacrum and coccyx were performed on January 14 and 15, 2017. A physiatrist assessed the worker on January 18, 2017.
The Eligibility Adjudicator’s decision letter dated March 30, 2017 denied initial entitlement to both health care and loss of earnings benefits after determining that proof of accident was not established. A reconsideration letter dated May 14, 2019 determined that the accident was an unexpected result disablement and not a gradual onset as the worker claimed a specific lift with pain on August 23, 2016. The reconsideration upheld the denial of initial entitlement.
Authority
Workplace Safety and Insurance Act, 1997 Section 13(2)
The following Operational Policies apply:
11-01-01 Adjudicative Process
11-01-04 Determining the Date of Injury
15-02-01 Definition of an Accident
15-02-02 Accident in the Course of Employment
17-01-03 Choice and Change of Health Professional
Analysis
I find that the necessary criteria for initial entitlement are not met. My reasons for this finding are outlined below.
Exhibits
The following document was accepted into the case record as an exhibit at the hearing of August 14, 2019:
Exhibit #1: Architectural and engineering details of project, including structural items and a photograph of the renovation project (21 pages total).
Initial entitlement
The worker representative argues that entitlement is in order as a chance event for a low back L5-S1 herniation arising from the incident of August 29, 2016. It is the worker representative’s submission that August 29, 2016 represents the date that the herniation became evident due to the development of left leg symptoms.
I will begin by reviewing the incident dates of both August 23, 2016 and August 29, 2016.
August 23, 2016
The worker testified that the incident occurred while lifting the last beam from the west side of the building. The worker estimated that the beam weighed approximately 250 pounds. The worker explained that a hole had been drilled into the end of the beam into which an old climbing rope was threaded. The worker testified that neither a pulley, block and tackle, hoist, nor a crane could be used to lift the beam. The worker explained that the slope of the property, the lack of a driveway, the presence of power lines, and the lack of access had made it impossible to lift the beam by any method other than by hand.
Additionally, the worker explained that the beam had to be installed in an east-west orientation and thus had to be brought up the side of the house as there was no room to maneuver the beam. Therefore, one end of the beam was lifted by three employees on the ground while the worker was on the west side of the building on the scaffold. Another employee was located behind the worker who was expected to take some of the weight once the worker had pulled the beam vertically up the side of the house and then horizontally towards him. At a certain point, the worker was holding all of the weight of the beam as it was too high for the employees on the ground but not sufficiently up enough into the scaffolding for the other employee behind the worker on the scaffold to take any of the weight.
In terms of body mechanics at the time of injury, the worker described bracing one of his legs against the guardrail of the scaffolding as he lifted the beam by manually pulling on the rope. The worker then twisted to his right in order to get the beam in front of him. The worker estimated that the beam was cantilevered two-thirds away from the scaffold (thus unsupported) and one-third on or inside of the scaffold. At this point, the worker knew that something had happened to his lower back but was uncertain what it was. The worker testified that his back felt “vulnerable” but continued to work as this was the last beam.
August 29, 2016
On August 29, 2016 the worker was required to perform a more awkward task of raising and installing a ledger in a north-south direction. Thus, the worker was positioned on the scaffolding at the front of the residence. The worker testified that a ledger is essentially the same material as a beam but it is applied differently. Further, the worker explained that he was the only person on the scaffolding as the ledger was pulled up the front of the residence.
At a certain point, the ledger became wedged under the guard rail and deck of the scaffolding. As the employees on the ground could not assist, the worker reached overhead with both arms and pulled downwards and in. The worker experienced low back pain, including down his left leg, and dropped to his knees.
Accident type and date of accident
I find that the incident of August 23 and 29, 2016 represent a disablement-type accident.
Policy 15-02-01 confirms that an accident includes both a chance event and disablements. The term ‘chance event’ is defined as an identifiable unintended event which causes an injury. Policy states that an injury itself is not a chance event. By comparison, the definition of disablement includes a condition that emerges gradually over time or as an unexpected result of working duties.
In this case, I am not persuaded that either incident of August 23 or 29, 2016 represent a chance event. Briefly, I observe that neither the beam nor the ledger struck the worker’s lower back. Instead, the incidents involved the worker forcefully twisting while pulling on the rope and forcefully pulled downwards/inwards from a bilateral overhead position. Thus, I accept that both incidents represent unexpected result disablements.
Policy 11-01-04 confirms that the date of injury in an unexpected result disablement claim is the date that the unexpected result of work duties occurs. Therefore, I find that the onset of left leg symptoms is not material to the determination of the date of injury. Instead, I find that there is sufficient evidence to establish that the appropriate date of injury is August 23, 2016.
Section 13(2) of the Workplace Safety and Insurance Act contains a presumption that if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of employment unless the contrary is shown. However, the presumption contained within Section 13(2) does not apply to a disablement. In other words, in cases of a disablement injury, the onus is on the worker to demonstrate that the injury both occurred in the course of employment and also arose out of the employment.
Therefore, I will first consider if the worker was in the course of employment prior to determining if the injury arose out of the worker’s employment.
Was the worker in the course of employment?
I accept that the worker was in the course of employment at the time of the injury.
Policy 15-02-02 sets out the necessary criteria for confirming that an accident occurred in the course of employment. Specifically, policy directs decision-makers to consider the criteria of place, time, and activity when determining whether a personal injury by accident occurred in the course of employment. Policy 15-02-02 outlines that the personal injury by accident generally will be viewed as occurring in the course of employment if the worker was engaged in an activity reasonably incidental to (related to) the employment.
There is general agreement that the criteria of time, activity and place are met by virtue of the worker performing his job duties on the worksite during his working hours. Hence, I find that there is sufficient evidence of a personal injury arising in the course of the worker’s employment.
Arising out of employment
I find that there is insufficient evidence to establish that the claimed low back injury arose out of the worker’s employment.
i) Proof of accident
It is my opinion that proof of accident is not established.
Policy 11-01-01 requires proof of accident as one of five points required in order for a claim to be allowable. Policy provides decision-makers to consider the following factors when examining proof of accident:
- Are there any witnesses?
I accept that there are at least two confirmed witnesses. The worker’s testimony provided the names of multiple witnesses for the incidents of both August 23 and 29, 2016.
I observe that the worker’s Form 6 signed February 2, 2017 and the Form 7 completed by the employer’s office administrator on February 7, 2017 each list an incident date of August 23, 2017 as well as the same two specific witnesses (consisting of the Health & Safety Representative and the Supervisor). The Form 7 also confirms that the worker reported the accident of August 23, 2016 to the office administrator in August 2016.
I acknowledge that the case record does not document Operations contacting either listed witness. I also recognize the worker representative’s argument that the case record indicates that the worker did not really want the witnesses contacted given that he was the owner of the business. Nevertheless, I note that the Appeal Readiness Form of May 9, 2019 indicates that there would be no witnesses and no summons was required for the requested oral hearing. Therefore, it is my view that the listing of witnesses on the Form 6 and Form is not sufficient to establish proof of accident.
- Was there any delay in seeking health care attention?
The worker representative submits the argument that first medical attention is represented by the worker’s treatment from a massage therapist on August 30, 2016.
The worker testified that he did not immediately seek medical attention from his family doctor as he thought that the injury would resolve in a relatively short period of time. The worker provided a similar explanation as to why the family doctor’s chart note of September 28, 2016 did not provide many details. Finally, the worker also explained through his testimony that he did not want a Workplace Safety and Insurance Board (WSIB) claim as he was responsible for ensuring the company was financially viable.
Policy 17-01-03 states that workers may make their initial choice of health professional from among the following:
- Chiropractors;
- Physicians;
- Physiotherapists; or,
- Registered Nurses (extended class).
In reviewing the evidence, I recognize that the massage therapist provided a written report dated March 15, 2018 confirming that the worker reported low back pain on August 30, 2016 regarding an incident the previous week, followed by a further left low back strain that had occurred while performing a heavy lift at work the previous day. Regardless, I must consider that the report of March 15, 2018 is not contemporaneous and that massage therapists are not listed as an initial choice of health professional under Policy 17-01-03.
The family doctor’s medical chart note of September 28, 2016 indicates that the worker was “having some back issues” but does not document any work-related accident history. A medical chart note dated November 28, 2016 documents a worsening sore back and that there had been heavy lifting “this year at work”. The family doctor’s report of February 22, 2018 explains that the chart notes are not clear regarding the cause of the worker’s back pain due to “the nature of his work as the employer/boss”.
Therefore, I have also considered the documentation provided by the treating physiotherapist. A physiotherapy report dated January 17, 2017 confirms that the worker had been treated intermittently for four to five years but that the focus has been “minimal intervention”. Specifically, the physiotherapist’s report confirms that the worker initially presented “at the end of November, with recurring low back pain”.
The worker’s Form 6 signed February 2, 2017 contains a written submission confirming that he consulted with his family doctor on September 28, 2016 and sought physical therapy from his chiropractor, physiotherapist, and massage therapist. In my opinion, both the physiotherapist’s report of January 17, 2017 and the family doctor’s medical chart notes indicate that the worker first reported work-related low back pain in late November 2016.
As a result, I find that the family doctor’s medical chart note of November 28, 2016 represents the first medical attention from a health professional listed within Policy 17-01-03 that also indicates a work-related injury. Although the medical chart note does not provide any specific injury history or date, I observe that the family doctor does document that the worker was “sore with heavy lifting this year at work”. That being said, I must consider that neither the physiotherapist nor the family physician provide details of what the heavy lifting entailed or when any specific onset of low back and/or left leg pain began.
I appreciate the worker’s testimony that he continued to see a chiropractor both prior to August 23, 2016 and into the fall of 2016 but stopped treatment as he found that it was not helping. Notwithstanding, I find that there is insufficient evidence of the worker reporting a work-related injury to a chiropractor prior to late November 2016.
To summarize, I find that there is a gap of approximately three months between the two incidents of August 2016 and the worker seeking medical attention for work-related low back pain in late November 2016. Hence, I find that there was a pronounced delay in seeking health care attention. For this reason, it is my view that proof of accident is not established.
ii) Clinical compatibility
I find that a causal link is not established between the diagnosis of a L5-S1 herniation and the incidents of either August 23 or 29, 2016.
Policy 11-01-01 requires compatibility of diagnosis with the accident or disablement history. The worker representative submits that the incident of August 29, 2016 led to the herniation as the worker was required to self-modify his duties after that date. It is presented that the worker was not required to notify the employer of his need to modify his duties as he was in fact the business owner.
As discussed above, the worker testified that the incident of August 29, 2016 resulted in pain that caused him to fall to his knees. Even so, I note that the family doctor’s chart notes of September 28, 2016 does not document any clinical findings of radiculopathy. The physician indicates that the worker’s current exercise level was “lower”, and “that he was having some back issues and so not biking and even running too”. The next medical chart entry dated November 28, 2016 documents mild spasm of the right paraspinals, normal range of motion, and normal straight leg raise. The family physician provides a diagnosis of mechanical low back pain with some radicular symptoms.
Similarly, the physiotherapist’s report of January 17, 2017 states that the worker had “no neurological signs or symptoms” when he initially presented with recurring low back pain at the end of November 2016. The report goes on to state that ten days later the worker returned and reported that running was causing too much pain in his lower back. The physiotherapist documents that all of the worker’s signs/symptoms were still mechanical. The report of January 17, 2017 states that the worker returned with significant low back pain and some radiating symptoms down his left hamstring two weeks later, just prior to Christmas.
The family physician’s medical chart note of January 12, 2017 documents that the worker had been in pain 90% of the time for the last month (since December 13, 2016) and that it increased to pain 99% of the time after slipping on ice. The emergency department report of January 13, 2017 documents radicular lower back pain. A MRI of the lumbar spine dated January 14, 2017 describes a large L5-S1 left paracentral disc extrusion that impresses on the traversing left S1 nerve root. The physiatrist’s report of January 18, 2017 states that there are some subtle findings to indicate an L5-S1 radiculopathy and that it may take eight weeks to declare any denervation. Importantly, I note that the physiatrist states “it should be noted it is only 4 weeks after his injury”.
Finally, as noted by the worker representative, the Medical Consultant’s opinion of March 28, 2017 did not provide a compatibility opinion with respect to the incidents of either August 23 or 29, 2016. Instead, the Medical Consultant notes an acute increase in long-standing low back pain. In the opinion of the Medical Consultant, the slip and fall incident on January 6, 2017 did not appear to be the causal factor.
Nonetheless, I find that there are insufficient clinical findings to establish that a L5-S1 herniation is causally related to either incident of August 2016. Instead, I find that the chain of causality is broken by a lack of medically documented radiculopathy from August 29, 2016 until at least late November 2016. As a consequence, I find that the necessary policy criterion of clinical compatibility is not met. Therefore, it is my opinion that initial entitlement is not appropriate as neither proof of accident nor clinical compatibility are established.
Conclusion
I conclude that there is insufficient evidence to establish proof of accident. Clinical compatibility is not established between the incidents of August 23 and/or 29, 2016 and the diagnosis of a L5-S1 herniation.
Initial entitlement is not in order.
The worker’s objection is denied.
Dated: August 22, 2019
K. MacMillan Appeals Resolution Officer Appeals Services Division