WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190112
DUAL OBJECTION:
OBJECTING PARTY: Worker REPRESENTED by: Worker Representative
OBJECTING PARTY: Employer REPRESENTED by: Employer Representative
HEARING: Oral Hearing HEARD by: A. Danos, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Employer Witness Observer: Resource Person Observer: Worker’s Cousin
DATED: August 28, 2019
ISSUES
This case was referred to the Appeals Services Division (ASD) to address numerous decisions under appeal by both the worker and the employer. For the reasons contained in my decision below, I have determined the worker does not have initial entitlement to a low back injury of December 4, 2017.
Noting this, aside from the employer’s objection to the allowance of initial entitlement, all the remaining issues in dispute are moot. Therefore I have made no finding on the additional issues.
For the record the issues in dispute were identified as follows:
The worker objected to:
The decision dated January 25, 2018 which denied loss of earnings (LOE) benefits from January 23, 2018 to January 29, 2018;
The decision dated May 29, 2018 which denied LOE benefits from April 20, 2018 to April 28, 2018, and denied partial LOE benefits May 12, 2018;
The decision dated July 10, 2018 which denied injuries to the right foot and right leg, and denied LOE benefits beyond June 1, 2018;
The decision dated November 29, 2018 which determined a Non-Economic Loss (NEL) quantum of 22% for the low back;
The decision dated February 26, 2019 which denied entitlement to chronic pain disability (CPD).
The employer objected to:
The decision dated December 15, 2017 which allowed initial entitlement to a low back injury of December 4, 2017;
The decision dated January 12, 2018 which allowed loss of earnings (LOE) benefits from December 8, 2017 to January 9, 2018 inclusive;
The decision dated September 10, 2018 which granted entitlement denied more than 50% cost relief under the Second Injury and Enhancement Fund (SIEF).
BACKGROUND
The now 56-year old Fulfillment Associate reported that on December 4, 2017 she hurt her low back at work. As outlined in an Eligibility Adjudicator’s decision dated December 15, 2017, the claim was allowed for a back sprain/strain injury.
The employer objected to the initial entitlement stating the worker’s low back condition beyond December 6, 2017 is not compatible with the incident described.
AUTHORITY
The following Operational Policies apply:
- 11-01-01 Adjudicative Process
Policy Document 11-01-01 states that 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?
15-02-01 Definition of an Accident
Policy Document 15-02-01 states that 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
Exhibits
Exhibit #1: WSIAT Decision No. 322/18
The Hearing
Opening statements
Neither the employer representative nor the worker representative provided an opening statement.
Worker Testimony
The worker testified that her pre-accident attendance record was excellent and she never had any issues or health problems.
The worker started working for the employer on October 4, 2017. Her job involved stowing which was putting items into robotic shelves. The weights and sizes of the items varied but no item weighed more than 29 lbs.
The worker said that near the end of her shift on December 4, 2017 she squatted down to get a product. She had to pull on a band that is in place to prevent items from falling out of the shelf. On this occasion, the band came back down and blocked the box from being freely pulled out. Therefore the worker had to get down and pick up the box and put it up. The worker stated she felt no pain or twinge or pull when moving the item. She said she went home at the end of her shift and had a normal night.
The worker said that the next day, December 5, 2017, she felt very sore, but it was her day off so she relaxed and did some light grocery shopping. The worker stated that a day later, December 6, 2017, she could hardly move. The worker said her daughter took her to the hospital. The worker stated she called the employer on December 6, 2017 to report her injury. She said she called the employer’s sick line and left a message asking for someone to call her back. She said she got a call back from HR Person 1 the next day, December 7, 2017, and provided the exact details about what had occurred. She said she also got a call from HR Person 2 and again verbally provided the same details. The worker confirmed she did not fill out any of the employer’s forms, and the reporting was all verbal.
The worker was asked about the weight of the item she moved on December 4, 2017. She said she estimated it to be 29 lbs. However she confirmed the employer told her it could not have been more than 10 lbs., because items over 10 lbs. would not have been located in that bin.
The worker said the employer offered modified administrative duties, working in an office preparing orientation packages.
The worker said that on December 7, 2017 she saw her family doctor who ordered x-rays and physiotherapy. The worker said her family doctor was aware that the employer had offered administrative duties, however authorized the worker completely off work until December 18, 2017.
The worker went to work on December 20, 2017 but said the employer was not prepared for her return to work. She said that from 8:00 a.m. to noon she sat doing nothing while the employer tried to figure out what work to give her. The worker said that the employer’s Workplace Safety and Insurance Board (WSIB) manager and two Human Resources (HR) workers couldn’t figure out what the physiotherapist meant by reduced hours of work. She said the individuals talked about the following week which would be short-staffed due to the holidays.
The worker said she went home and then heard nothing more from anyone until January.
She said she called the WSIB to find out what was happening, and then returned to work on January 20, 2018. She said she returned to administrative work but was able to do only 2 weeks because she was in so much pain and had difficulty walking.
The worker stated while on modified work there was not enough work brought to her and she spent a lot of time at work waiting for items to be brought to her. She said she had to staple items but ran out of staples. However, she confirmed she was able to sit or stand as required and was not required to exceed her medical restrictions.
The worker stated that in spite of being off work for a month and then returning to suitable activities, her condition worsened. She said she started physiotherapy on February 5, 2018 but was off work until March 22, 2018 when she returned to the same administrative duties.
Although the modified duties did not involve walking per se, the worker said that when she arrived at the workplace she had to walk to the work area, and back again at the end of her shift. She also had to walk to use the washroom. Additionally the worker said that because of the lack of work, at times she had to walk one or two minutes to the HR area to ask for more work.
In her testimony the worker described different areas of modified work, stating the walk to the work location was an issue. However the actual job duties were not in excess of her abilities, and she confirmed other people would take items to her, or she would merely not do what she was unable to do such as low level work. She said that when working alone with no one to bring her work, she would sit and do nothing.
The worker said that although the employer provided her with a computer to email someone if she needed assistance, the employer took it away. They also gave her a walkie-talkie, but it was broken so she couldn’t use it. The worker testified that on occasions she was alone and with no means to contact the employer, she would not perform activities outside her restrictions but would just wait until someone came by.
The worker confirmed the employer accommodated her with placing chairs along the route from where she entered the workplace to where her workstation was. She said it would take about 30 minutes to get there. She said she was allowed to sit at the seat or bench as long as she needed to, and said she would spend 5 or 10 minutes sitting along the way. In spite of this she said she had a lot of trouble walking. She said she developed tingling in her legs which she attributed to the walking, and she had to go off work altogether starting June 1, 2018.
The worker said that her current condition was poor. She said the pain in her back and leg was killing her, and described it as 9 out of 10 even while she was just sitting there in the hearing. She said the pain is in her back, across her low back, down the right side of her back into her buttock and down the right leg into her foot. She said she is currently unable to do any type of work, but she would like to, if only someone could figure out what is going on with her leg and foot.
The worker said she is not able to walk more than 25m, confirming she is able to go from her front door to her car. The worker said she uses a walker which was not prescribed by her doctor but was her late mother’s so it was available for her own use.
Witness Testimony
The witness testified that any employee who has any kind of injury or discomfort, regardless of whether it is occupational or non-occupational, is supposed to report to Amcare, and they would be required to complete a form. The witness said that in this case, however, the worker did not contact Amcare, but instead reported to HR through the attendance contact. The witness said the worker’s message was forwarded to the witness who contacted the worker directly. The witness said the worker told her she couldn’t come in to the workplace, so the witness obtained the information over the phone.
The witness testified she offered the worker modified work over the phone on December 6, 2017 and told the worker the job offer would be confirmed in writing. The witness said a full investigation report had to wait until the worker came back to the workplace which was on December 20, 2017.
The witness stated that the worker was scheduled to be terminated on December 6, 2017, the same day she called in absent. The witness said that a worker gets points according to the requirements of the duties, relating to performance issues including absence without a reason, orders not being accurate or not meeting a quota. When a threshold of points is accumulated a worker’s employment is terminated. The witness said the worker was at the stage of termination, and confirmed that the worker was aware that her employment was going to be terminated that day, December 6, 2017.
The witness stated the modified duties were provided according to the available medical restrictions. The Functional Abilities Form (FAF) identified no restrictions against walking the distance from entry at the workplace to the work location inside the workplace. However the worker stated she was unable to do it.
Closing statements
- Employer Representative:
The employer representative submitted the worker did not suffer a work injury on December 4, 2017, noting she did not feel anything including any symptoms when she pulled the package in question. The worker felt only soreness the next day which the employer representative stated could just as well have been the result of sleeping wrong.
The employer representative stated there was no pain until 2 days later which is far too long to be compatible with a minor activity at work. The employer representative points out that even the worker herself stated she couldn’t figure out what caused her back pain.
- Worker Representative:
The worker representative stated that although the worker might have a pre-existing condition, prior to December 4, 2017 the worker was asymptomatic and capable of working, gardening, camping, and taking care of her elderly parents.
The worker representative stated the delay in the pain reaction is not inconsistent with the nature of the accident history, as it was not a traumatic accident.
Assessment of the Evidence
I find no evidence to support a work-related accident or injury on December 4, 2017.
The worker performed her regular duties on December 4, 2017 to the end of her shift with no specific accident history. She said she had to pick a large heavy box out of the bottom pocket of a pod she was working on. She said she squatted down, pulled the box out a bit, and pulled the bands that go across the front of the pockets to keep the items in during transportation. She said the bottom bands went back up in front of the box preventing the box from being pulled out further. The worker said she got down on her knees and again moved the bands, pulling slower this time and managing to get the box out onto the station floor. The worker said she then got up, and squatted down again to pick up the box before placing it into a yellow tote.
The worker said she never noticed anything at the time but she was tired. The worker completed the shift feeling tired but with no evidence of any injury or accident according to WSIB’s definition, including disablement.
The worker wrote that next day, December 5, 2017, she was tired but just thought it was from working all the hours the previous week. She said she felt sore but was able to do normal activities such as light grocery shopping.
The worker said that on December 6, 2017 she woke up in pain but she couldn’t figure out what was wrong. She said she then thought about the box she’d had a problem with at the end of her shift on December 4, 2017. The worker said she told her daughter what she thought happened, then went for emergency medical treatment.
According to the emergency physician’s Health Professional’s Report (Form 8) dated December 6, 2017 the accident history was “picking a large item out of the bottom pocket of a pod”. This Form 8 did not indicate the worker mentioned any twist, twinge, pull, pain or anything which could be considered an accident according to WSIB’s definition.
According to Dr. Hack’s Functional Abilities Form (FAF) dated December 8, 2017 the worker had a major issue of severe back pain and was unable to return to any type of work until December 18, 2017. I find this level of impairment is not compatible with the worker’s description of what she did at work on December 4, 2017, particularly in the absence of any injury at work on December 4, 2017 even according to the worker’s description, and no back pain until two days later which even then the worker did not initially relate to anything at work.
In a review memo dated December 15, 2017 an Eligibility Adjudicator stated the following:
[The worker] was picking up a box from inside a pod at the end of her shift when she felt a pain in her lower back. The box weighed approximately 20-30 pounds and she was required to squat down to remove the box from the pod as it was being held down by bands and place it in the tote. She did not think anything of the pain at first as it was time for her to leave for the day.
I find the Eligibility Adjudicator’s description of the incident is inaccurate, noting:
the worker never stated she felt a pain in her lower back at work
the box did not weigh more than 10 lbs.
the worker did not have any pain for her to think anything of it.
The Eligibility Adjudicator’s decision letter dated December 15, 2017 shows the inaccurate information as the basis for granting initial entitlement. Additional inaccurate information is contained in the decision letter as the Eligibility Adjudicator stated “As [the worker] did not think the injury was serious, she did not report the injury immediately and went home shortly after her shift”.
However, as already noted in the worker’s own written and verbal statements, the worker did not notice any pain or injury at work on December 4, 2017, and aside from soreness on December 5, 2017 still did not identify any possible accident or work injury.
Unfortunately as noted by the employer representative the inaccurate description about what occurred at work on December 4, 2017 was perpetuated throughout the claim. In the Speciality Clinic (SC) report dated February 5, 2018 the description changed further, as the incident was now described thus, “As she lifted the item, she felt a sharp pain in her low back”. By this point the accident history includes not only pain, but specifically sharp pain, for which there is no evidence whatsoever to support, even in the worker’s own initial reporting.
I have considered the worker representative’s statement that the worker was asymptomatic before December 4, 2017 and did not have any limitations. However, entitlement to benefits is still dependent on compatibility. Although the worker may have been asymptomatic prior to December 4, 2017 the symptoms after December 4, 2017 started two days after her last day worked, and rather than improving, worsened steadily and progressively in spite of the worker either being on suitable work without exceeding her restrictions, or being off work altogether.
I find no clinical evidence to support any of the worker’s symptoms from December 6, 2017 onwards were the result of lifting or moving a 10-lb. item at work on December 4, 2017.
The worker may have been impaired from returning to work, and she may have been following her doctor’s recommendation to stay off work as of December 6, 2017. However I find no evidence that a work-related accident occurred.
I find no objective information to support the worker’s condition beyond December 5, 2017 was a work-related condition which emerged gradually over time, or an unexpected result of working duties. In the absence of an accident I am unable to identify any personal work-related injury, proof of accident, or compatibility of the diagnosis to accident or disablement history.
Policy states that an allowable claim must have a personal work-related injury, proof of accident and compatibility of diagnosis to the accident or disablement history. The definition of an accident includes a disablement arising out of and in the course of employment. The definition of disablement includes a condition that emerges gradually over time, and an unexpected result of working duties.
I find this worker’s case does not meet the policy criteria for entitlement to benefits. Therefore the worker does not have initial entitlement to a low back injury of December 4, 2017.
Noting the above I am overturning the initial entitlement decision of December 15, 2017 and rescinding all benefits allowed in this case.
CONCLUSION
I conclude there is no initial entitlement to a low back injury with an accident date of December 4, 2017. Noting initial entitlement is reversed I make no finding on the other issues which were appealed.
The employer’s objection is allowed.
DATED: August 28, 2019
A. Danos Appeals Resolution Officer Appeals Services Division