APPEALS RESOLUTION OFFICER DECISION
decision number:
20220121
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (self Represented)
HEARING:
HEARING IN WRITING
HEARD by:
B. Fairburn, appeals resolution officer
ISSUE
The worker objects to the Eligibility Adjudicator’s decision dated February 10, 2021, denying initial entitlement to benefits for a lower back injury occurring on October 15, 2020.
BACKGROUND
This Police Constable reported experiencing discomfort to their lower back while performing their regular duties of cleaning out an encampment on October 15, 2020. They treated their discomfort with over-the-counter pain medication for the next few weeks. The worker remained at work performing modified duties. When they determined the pain would not resolve, they booked an appointment with their family physician.
The worker consulted with their doctor on November 10, 2020, via telephone appointment. The worker reported the injury to their employer and began losing time from work on November 26, 2020 following negative side effects from medication.
In a decision dated February 10, 2021, the Eligibility Adjudicator denied initial entitlement to benefits for a lower back sprain/strain occurring on October 15, 2020. They were unable to establish proof of accident noting the delay in seeking healthcare. Following the receipt of additional medical information, the Eligibility Adjudicator reconsidered and upheld their decision.
The worker objects to the denial of initial entitlement to benefits for a lower back injury for an accident date of October 15, 2020. This objection is now before the Appeals Services Division.
AUTHORITY
Operational Policy Manual
Published
Workplace Safety and Insurance Act, 1997, Section 13 (2)
11-01-01 – Adjudicative Process
15-02-01 – Definition of an Accident
November 3, 2008
October 12, 2004
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons set out below, I find that the worker does not have initial entitlement to benefits for an injury to their lower back, for an accident date of October 15, 2020.
Worker Position
In their submission dated December 29, 2021, the worker representative provided their position that the worker’s lower back injury was work-related. They noted, following further testing, the physician confirmed the worker’s impairment was related to work. They also submitted the worker had a prior lower back injury without lost time or requirement for accommodation. The worker representative noted the physician supports the worker’s chronic back pain was exacerbated by their work as a police officer. They submitted there is continuity of complaint since the date of accident. They also provided a report from the Occupational Health Clinic for Ontario Workers (OHCOW) to support initial entitlement in this claim.
Employer Position
On June 2, 2022, the employer provided their position that the worker’s lower back injury did not result from their employment. They submitted there is no proof of accident or compatibility of the diagnosis with the reported accident history. The employer noted the delay in seeking healthcare. They submitted the worker’s current lower back complaints were related to their pre-existing back condition. The employer further pointed out the varied accident histories on file to support no proof of accident. The employer also disputed the validity of the OHCOW report noting consideration was only given for one of the various accident histories reported.
Operational Policy 11-01-01 – Adjudicative Process provides that a claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case. All decision-makers use the same criteria, known as the “five point check system” for ruling on initial entitlement to WSIB benefits. 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
There is no dispute that the first and second criterion in the policy are met, as there is an employer and a worker. The issue to be resolved in this claim is the fourth criterion in the policy, which sets out that an allowable claim must have proof of an accident.
Policy 11-01-01 – Adjudicative Process provides the following guidelines for determining proof of an accident. Decision-makers may consider the following when examining proof of an accident,
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of the accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
Does an accident or disablement situation exist?
In order to consider if an accident or disablement situation exists, I must first consider the definition of an accident.
Operational Policy 15-02-01 – Definition of an Accident provides that an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable, unintended event, which causes an injury. The definition of disablement includes a condition that gradually emerges over time or as an unexpected result of work duties.
I have reviewed the following documents to determine the type of accident.
During their telephone appointment with Dr. Lee, their family physician on November 10, 2020, the worker reported issues with their lower back and noted they had been seeing an Osteopath. The worker noted they saw Chiropractic and Massage at Dr. Deegan’s recommendation, however it seemed to cause more pain. They noted the Osteopath felt their L3 was recessed and was unsure if it was strictly related to their work. Dr. Lee noted the worker had chronic lower back pain and over the past year had progressively gotten worse.
The report through ISAEC dated November 19, 2020 noted the worker had a five year history of gradual onset of lower back pain described as intermittent.
On November 30, 2020, Dr. Lee noted the worker was unable to remain at work due to the side effects of their medications. They noted acute on chronic low back pain and recommended treatment. On December 11, 2020, the worker reported their back was improving with stretching. The worker noted they were thinking about returning to work as they were able to move around in their current job, sit in the van and walk around etc. On January 6, 2021, Dr. Lee spoke to the worker via telephone and noted the worker had ongoing pain and would send in a Health Professional’s Report (Form 8).
When speaking with the Eligibility Adjudicator on January 18, 2021, the worker reported a disablement gradual onset type accident with identifiable changes that developed over the course of time. The OHCOW report dated November 18, 2021, noted the worker was crouching in a tent, bent over at the waist to pick up a tote weighing 30lbs when they felt pain in their left lower back.
The Health Professional’s Report (Form 8) dated January 20, 2021 provided a diagnosis of acute on chronic lumbar strain. Dr. Lee noted the worker was unable to work as they struggled with ambulation and decreased range of motion, even at rest. The accident details provided are that the worker was working on shutting down encampment sites, wearing heavy equipment, and worked much longer than usual in the cold and rain on October 15, 2020.
The Employer’s Report of Injury (Form 7) dated January 24, 2021 noted the worker reported they injured their back while performing their daily duties. They noted a prior back injury in 2013.
The Worker’s Report of Injury (Form 6) dated January 29, 2021 reported an accident date of October 15, 2020, which they reported to the employer on November 26, 2020. They reported a gradual onset type injury to their lower back pertaining to work they were doing since September 2019. The worker reported changing positions in the service which resulted in a change in their daily routines. The worker noted a sore back which they attempted to treat with pain medication until it became unbearable. They reported speaking to their physician on November 10, 2020 and losing time beginning November 26, 2020.
The worker further explained that on October 15 and 16, 2020, they stood on concrete asphalt all day while providing security. They worked 13 hours per day, compared to their regular eight hour shifts. They noted their back became sore during the shift on October 15, 2020, and they reported to their Sergeant on October 16, 2020. After speaking to their physician, they received additional pain medication. They were no longer able to perform their duties due to their medication and were sent home on November 26, 2020.
These various reports outline differing accident histories. There is no consistency between the reports and the mechanism of injury appears to have evolved over time. Based on my review, the worker is reporting a gradual onset of worsening back pain over time since their change in job in 2019. They then reported that while working at the encampment their back pain increased. It is unclear if the worker caught their uniform on the car, bent over to pick up something heavy, or had pain as a result of standing for long periods of time. It is not until the OHCOW report on November 18, 2021, that the lifting of a 30lb tote resulting in pain is brought forward. These mechanisms of injury are not reflective of a chance event, but represent a gradual onset type injury or a disablement type injury unexpectedly occurring in the course of their regular duties.
The Workplace Safety and Insurance Act 13 (2) states that if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
The statutory presumption set out in section 13 (2) does not apply to an injury by disablement. Therefore, I must determine if the evidence supports the worker sustained a lower back injury while in the course of employment and that the back injury arose out of the employment, in order to establish proof of accident. Experiencing discomfort at work is not sufficient to support that these requirements are met.
Are there witnesses?
On February 5, 2021, witness N.H. reported the worker was in a lot of pain on October 15, 2020. In early November, 2020, the worker complained of pain. N.H. noted the shift of October 15, 2020 was one of the hardest shifts of their life and they were very sore after this shift. They were helping people move stuff, hunching over, completing paperwork and it was raining and cold.
On February 5, 2021, witness P.W. noted the worker complained of a sore back on the day after October 15, 2020. They knew the worker was in pain for four to six weeks, they accommodated the worker with office work. Witness P.W. indicated the supervisor completed an injury on duty form. I note this form is not on file for review, nor is the date of completion clear. P.W. is the individual who both the employer and the worker indicated the worker reported their injury to. The date of reporting, November 26, 2020, is consistent on both the Form 6 and Form 7. There is no information on file to support the worker reported a lower back injury to their employer prior to this date.
On February 8, 2021, a co-worker, S.K. noted the worker began complaining about back pain around mid-October. They felt the worker’s injury occurred around the same time the team was ordered to clean up the encampment. S.K. noted the duties consisted of more lifting then usual and the worker was the only officer on site. They also noted that in November the worker was only tasked with performing duties at waist level to avoid heavy lifting.
Considering the three witness statements, there is no dispute the worker had lower back discomfort in and around October 15, 2020 and into November 2020. However, I do not find that these statements substantiate the presence of a work-related accident. The witnesses indicated the tasks performed on October 15, 2020, were heavy in nature and that it was a hard shift, clearing out the encampment. The witness statements confirm the worker complained of lower back pain. However, the reports do not confirm the worker attributed their lower back complaints to the tasks of clearing out the encampments or to a specific incident occurring while completing these duties. Therefore, I do not find the witness statements establish proof of accident.
Are there Discrepancies in the Date of Accident and the Date the Worker Stopped Working?
The worker reported the accident occurred on October 15, 2020 and the Form 7 indicates the worker ceased working on November 26, 2020. This is the date they reported the accident to their employer. The witness statements note the worker required some accommodation in late October and early November prior to laying off work on November 26, 2020. I find this information supports the worker required accommodation at work due to lower back discomfort prior to their date of lay off.
Was there a Delay in the Onset of Symptoms or in Seeking Health Care?
The phone visit dated November 10, 2020, noted the worker was having an issue with their back. Dr. Lee did not note a work-related accident, but reported their pain had become progressively worse over the past year. The worker noted they were unsure if it was strictly related to their work. The worker indicated they were seeking treatment for their back through an Osteopath, Chiropractor and Massage.
The ISAEC Report dated November 19, 2020 noted a six year history of gradual onset of intermittent lower back pain. There is no report of a work-related accident in this report.
The worker spoke with Dr. Lee through telephone visits on November 24, 2020, November 30, 2020, December 11, 2020, January 6, 2021, and followed with the ISAEC on December 21, 2020. It was not until January 20, 2021 that Dr. Lee submitted a report indicating the injury was work-related. They noted the worker was doing the shutdown of the encampment on October 15, 16, 2020, and were on their feet all day. Dr. Lee indicated that that is “probably what started this most recent episode”.
The Health Professional’s Report (Form 8) dated January 20, 2021, noted the worker had an accident on October 15, 2020 and provided a diagnosis of acute on chronic lumbar strain.
I find this information supports a delay in seeking healthcare. It also appears the worker was in ongoing treatment prior to October 15, 2020, with their Osteopath, Chiropractor and Massage. The clinical evidence supports the worker had a long standing history of lower back discomfort and degenerative disc disease. The presence of a pre-existing condition does not weigh into consideration for initial entitlement to benefits. I find the worker had multiple opportunities between November 10, 2020 and January 20, 2021 to report their lower back discomfort as work-related or to advise their healthcare professionals of the mechanism of injury, and did not do this. The worker has multiple prior claims and is aware of their reporting obligations.
The worker representative provided their position that Dr. Lee, through further investigation, concluded the worker’s back discomfort was caused by a work-related incident or their working duties. I have considered this position, along with the evidence before me, and am not persuaded Dr. Lee was aware of any of the various accident histories prior to January 20, 2021. Dr. Lee did note on November 10, 2020, that the worker was unsure if their discomfort was strictly work-related. There was no indication until three months after the date of accident that the worker reported an injury on October 15, 2020, to their healthcare providers. Furthermore, there is significant evolution of the mechanism of injury throughout the claim file and the opinion from OHCOW considers a completely new accident history. I find that the worker’s delay in seeking healthcare and delay in attributing their lower back injury to work-related causes are significant and do not establish proof of accident in this claim. I find the evidence is insufficient to support a lower back injury arising in and out of the course of employment.
I find that proof of accident is not established in this claim for the following reasons:
The delay in seeking healthcare
The delay in reporting a work-related accident
The evolution of the mechanism of injury throughout the claim file, and
Insufficient evidence to support the worker attributed their lower back pain to a work-related cause to either their healthcare provider, co-workers, or employer within a reasonable time frame.
Therefore, as I have determined proof of accident is not established, I find the worker does not have entitlement to benefits for a lower back injury occurring on October 15, 2020. Initial entitlement to benefits are denied in accordance with Operational Policy 11-01-01 – Adjudicative Process.
CONCLUSION
Initial entitlement to benefits for a lower back sprain/strain for the accident date of October 15, 2020 are denied.
The worker’s objection is denied.
DATED September 20, 2022
B. Fairburn
Appeals Resolution Officer
Appeals Services Division