WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190085
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Not-Participating)
REPRESENTED by: None
HEARING: Oral Hearing on May 30, 2019
HEARD by: S. Di Carlo, Appeals Resolution Officer
DATED: June 11, 2019
ISSUE
The worker through his representative objects to the Eligibility Adjudicator’s (EA) decision dated November 18, 2016, which denied initial entitlement for a right hip injury.
PRELIMINARY ISSUE
At the hearing the worker representative confirmed to maintain the date of injury as July 1, 2016, therefore, for the purpose of this appeal, the date of injury will remain as July 1, 2016.
BACKGROUND
On July 1, 2016 this now 45-year-old regional maintainer forestry worker began to feel an onset of right-sided hip pain as a result of his regular duties. The worker continued performing his regular duties and had a chiropractic adjustment in October 2016. On November 3, 2016, the worker sought medical attention and was diagnosed with bursitis of the right hip and tensor fascia lata (TFL) syndrome. The worker returned to work to perform modified duties.
In a decision dated November 18, 2016, the EA was unable to establish proof of accident, and compatibility. Entitlement was not granted for a right hip injury.
The worker’s representative’s objection to the denial of initial entitlement of a right hip injury now forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
11-01-01 Adjudicative Process
EXHIBITS
Physical Demands Analysis (PDA) of the Regional Maintainer – Forestry Position; completed in May 2006.
ANALYSIS
In arriving at my decision, I have considered the information in the claim file, the worker representative’s submission, the worker’s testimony, as well as the appropriate operational policy. I find the worker has met the criteria for initial entitlement for a right-sided hip injury. My explanation is as follows.
The worker representative positioned that initial entitlement for a right-sided hip injury should be recognized in relation to the July 1, 2016, workplace injury. He maintained based on the worker’s testimony, along with the job demands, proof of accident and compatibility have been established and the policy criteria for allowance has been met.
The employer is not participating in this appeal.
In deciding the issue of initial entitlement, I am guided by Policy 11-01-01 titled “Adjudicative Process” which states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, and proof of accident and compatibility of the diagnosis to the accident or disablement history.
The worker testified he has worked for Hydro One for 21 years. He stated for the past 15 years he has held the position of utility arborist. The worker stated he is responsible for securing the power lines to the customer, which includes vegetation management that consists of removing diseased trees and branches that have the potential to interfere with electrical distribution and transmission lines. The worker stated he needs to ensure security of the power lines.
The worker stated that in early July 2016, he began to experience sharp, stabbing pains in his right hip as a result of his work duties. The worker said that due to the physical nature of his work he always has aches and pains. He testified he thought the pain would go away, yet, it continued to persist and he tried to self-medicate which included icing his right hip, using ibuprofen daily, and applying Voltaren. The worker stated he took so much ibuprofen that later he developed ulcers because of the medication. The worker stated he is a hard worker and tried to just work through the pain and would try to perform daily stretches to alleviate the pain; however, it got to the point that he could no longer function and then sought medical attention because nothing helped with the pain. The worker stated he did perform modified duties with his employer.
The worker stated outside of work he played ball hockey on Thursdays and Sundays which was a non-contact league. The game consisted of three (3) 10 minute periods and he played on average about a quarter of the time. He stated he stopped playing ball hockey due to his right hip pain and that the pain was present at home and while at work. The worker described the pain out of 10 to be a 12.
The worker testified that prior to July 2016, he never had any hip issues and he stated he reported his pain to his employer in July 2016 and again in October 2016 after he was seen by a chiropractor. The worker maintained that prior to October 2016 he was never treated by a chiropractor and continued to date to see his chiropractor for his right hip every two (2) weeks.
The worker described the following duties:
Tree Trimming:
To trim a tree around a hydro line the worker stated he has to maintain his limits of approach and explained his limits of approach depends on the different voltage that he would be working with. He indicated depending on the voltage of the power lines and if the tree is in that vicinity, he would have to use a hand pruner or hydraulic pruner to bring back the limbs for trimming.
Bucket Pruning:
He uses chain saws ranging from a 105 to a 44 still chain, which is comprised of different weights. He indicated that while he is in the bucket, he is bent over and reaching out and trying to cut the limbs of the tree to snap them off and throw them safely to the ground. He indicated that while in the bucket, he is not always in the best position, and at times if the limbs of the tree are too big to handle he would have to apply ropes to the limbs and a ground man would assist him. The whole time he is constantly reaching, stretching, and exerting himself.
He stated he is in the bucket about three quarters of the time and remains in a bent over and forward reaching position while using a hand saw, chain saw, or pruner. The worker stated on average he would spend about three (3) hours of an eight (8) hour shift in a bucket. He indicated while in the bucket he could be cutting anything from four (4) inches in diameter to 60 inches in diameter, depending on the size of the tree he would be dealing with. The worker described that while in the bucket (depending on the size of the tree) he would use the assistance of the ground man to set up ropes and pulleys in the tree; that way he can attach the limb to the pulley and when he cuts the limb, the ground man assists him with lowering the limb down safely to ensure that the clients sheds or vehicles are not damaged by the vegetation. The worker described that when setting up the ropes, he is reaching and extending over the bucket, stretching out and tying everything off, and making his cuts above and below with the chain saw, and the ground man then uses the pulleys to lower the limb down.
The worker stated he switches up half the day with his co-worker and while on the ground, he controls traffic, sets up the truck, places out cones, and is a dedicated observer. He testified he is constantly in a ditch and walking on uneven terrain, which he describes like “farmers-fields” to gather and bundle the limbs of the tree and is constantly stepping over limbs of the tree as well. He indicated he uses chainsaws to make notches and back cuts into the tree, always in a forward reaching and bent position.
During testimony the worker was asked the weight and length of the hydraulic pruner. He believes they range between five (5) to 10 pounds, and range between five (5) to six (6) feet long.
Tree Climbing:
The worker stated if it’s an off-road tree, and they cannot have equipment come to it, he climbs the tree. This requires him to wear climbing gear. He would have his chain saw hanging off of a lanyard on the side. A hand pruner and the weights of all the equipment including the harness weighs about 30 pounds. He indicated when he is up in the tree, he is performing the same duties as if he was in the bucket; but from the inside out rather the outside in. He testified that when he climbs, it’s more strenuous on his body and requires more reaching. He averaged climbing about twice a week.
During questioning, the representative referred to the EA’s memo A0005 and asked the worker if he ever indicated whether his duties were “self-paced” and the worker responded “no.” In the eight (8) hour shift, the worker stated he takes a half hour lunch and two (2) 15 minute breaks. He stated he is constantly moving within his shift. The worker stated that the weight of all the equipment throws off his balance when completing his tasks.
The issue to be determined is whether proof of accident and compatibility have been established in this case.
The Worker’s Report of Injury (Form 6) completed on November 14, 2016, outlined the worker gradually over time experienced right hip pain as a result of his regular duties. The worker sought medical attention in October 2016 with a chiropractor and informed his employer of his injury and returned to work to perform modified duties.
The Employer’s Report of Injury (Form 7) completed on November 7, 2016, outlined that on November 3, 2016, the worker reported pain in his right hip which he attributes to his regular duties as a regional forestry maintainer.
The Health Professional’s Report (Form 8) completed on November 3, 2016, referenced the date of incident as September 1, 2019, and the details included over time that the right hip pain started two (2) months ago. The worker was diagnosed with bursitis of the right hip and TFL. Return to work was discussed and the physician outlined the worker was not able to bend/twist, climb, operate heavy equipment, operate a motor vehicle, and push/pull for 14-plus days.
A Patient Encounter Worksheet completed on November 2, 2016, outlined that the worker had right hip pain since the summer, and has been seen by a chiropractor for two (2) weeks with minimal change. On examination, range of motion was decreased and the worker was tender over the trochantaic bursa with glute weakness. Ibuprofen medications were noted and physiotherapy and light duties were recommended.
The EA’s memo four (4) outlined a conversation with the worker. The worker stated his pain started in July 2016 and he decided to work through the pain and attributed the right hip pain to his regular duties.
The representative referred to the PDA’s; both the works assessment of May 2006 which he submitted as an exhibit, and the 2012 PDA on file, to support the worker’s testimony of the physical aspect of his regular duties. In reviewing both the PDA’s on file, I note the physical demand level for the worker’s job duties consist of heavy to very heavy. Of significance, I note the bucket pruning position outlines upper body strength, balance and awkward posture is required and the tree pruning in tree position consists of whole body strength, balance, coordination and awkward posture is required. The worker’s duties consist of physical requirements of reaching, crouching and kneeling.
Although, the worker delayed in seeking medical attention and continued to perform his duties, the worker testified that he tried to work through the pain and continued to self-medicate, hoping the pain would go away. The worker described his duties are physical in nature as supported by the PDA’s on file. At the hearing the worker provided testimony in a straight-forward and credible manner. As such, given the nature of the work performed and that the worker thought the pain would go away, I accept the delays in seeking medical attention and I am satisfied proof of accident has been established. In addition, I find the diagnosis of bursitis and TFL of the right hip compatible with the worker’s regular duties as a utility arborist. The nature and duration of benefits flowing from this decision will be returned to Operations for further adjudication, subject to the usual rights of appeal.
CONCLUSION
The worker has initial entitlement for bursitis of the right hip and TFL. The nature and duration of benefits flowing from this decision will be returned to Operations for further adjudication, subject to the usual rights of appeal.
The worker’s objection is allowed.
DATED: June 11, 2019
S. Di Carlo
Appeals Resolution Officer
Appeals Services Division