APPEALS RESOLUTION OFFICER DECISION
decision number:
20230030
OBJECTING PARTY:
worker
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
TELECONFERENCE – october 25, 2022
HEARD by:
chantal reid, appeals resolution officer
october 28, 2022
ISSUE
The worker objects to the eligibility adjudicator’s decision dated November 24, 2021, which denied initial entitlement to benefits for their low back.
BACKGROUND
On October 4, 2021, this light-duty cleaner reported they felt an immediate onset of severe low back pain after finishing their work duties. The worker stated they could not walk due to their pain. The worker did not attended work on October 5, 2021, believing their pain would resolve with rest. When it did not, they sought medical attention on October 18, 2021.
The eligibility adjudicator determined there was no proof of a work-related accident due to the delays in reporting and seeking medical attention combined with the evident pre-existing symptomatic low back condition, which predated October 4, 2021.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
November 3, 2008
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is not entitled to benefits for their low back.
Employer Position
In their submission dated September 8, 2022, the employer advised that the worker went off work on October 5, 2021 for a non-work-related medical issue. They are in agreement with the decision to deny initial entitlement in this claim.
Employer statement at the hearing
The employer stated the documents and the medical records indicate a different story than what the worker testified to today. The employer declared there was no evidence of a work-related accident. They requested that the evidence be carefully reviewed and the original decision upheld.
Worker Position
The Intent to Object form dated December 2, 2021, noted the worker’s disagreement with the determination that there was no proof of a work-related accident. The worker advised that they work alone so there is no one to report to immediately. They noted they believed the pain would go away which is why they did not immediately seek medical attention. They noted they were unfamiliar with WSIB and did not know the procedures.
The worker provided a signed statement from two individuals who did not see the injury occur however, they corroborated that they saw the worker sitting on a bench at the top of the stairs crying and advised the worker to seek medical attention.
Worker testimony at the hearing
The worker testified that on October 4, 2021, they had completed their mopping and vacuuming and had just put everything away. While they were walking they had immediate sharp pain in their back. They could no longer move or walk. They sat down on a bench. Two teachers came in and saw them crying.
The worker drove themselves home and took some extra strength Tylenol and laid down. The worker testified they tried to call their supervisor, as soon as they got home. When they woke up the next day, they still could not move, so they did not go to work. They testified that they went to the doctor’s but were not sure which day they went. The worker had three follow-up appointments and their back is still not right.
The worker does not recall sending text messages to their supervisor. The worker recalled speaking with xxxx, as their supervisor was off work. The worker advised they did not know who xxxx was nor do they know when they were in contact with xxxx.
The worker does not recall sending text messages on October 5, 2021. The worker does not recall any conversations with their supervisor about resigning.
When prompted, the worker confirmed that the first time they sought medical attention was a couple of weeks after they had been off work, so this would have been the October 18, 2021, appointment.
The worker denied having prior low back issues. The worker denied being at the hospital in September 2021 and receiving morphine for their back pain. The worker denied seeing a specialist for
their low back since January 2021. The worker stated they see three different specialists but none for their back.
The worker does not recall saying they were going to apply for Employment Insurance (EI) sick benefits.
The worker denied having taken time off work prior to October 5, 2021, for other health conditions. Then when prompted, the worker confirmed they had been off work from March 2021 to September 2021 for gallbladder surgery.
The worker concluded by stating, the injury did occur at work and that their doctor was impossible to get a hold of so they were not sure what to do. They just want to assert that their injury was work-related.
Relevant Case Details
The emergency room report dated October 18, 2021, noted the worker was seen by Dr. Van De Kleut for an onset of left lower back pain that came on a couple of days prior. The worker denied any injuries. The worker reported a history of bilateral lower back pain for which they had seen their family doctor and had been prescribed morphine. Their back pain had been constant and was worsened with lifting, bending, pushing and pulling activities at their work as a janitor. They were seen in the emergency room on September 18, 2021 and their morphine prescription was renewed. The worker had a follow-up appointment previously booked for November 4, 2021. The worker’s symptoms were consistent with musculoskeletal lower back pain.
The Worker’s Report of Injury (Form 6) dated November 17, 2021, noted the worker’s injury was on October 4, 2021, and that they reported it to their employer on October 5, 2021. The worker did not seek medical attention until October 18, 2021, as they believed the pain would resolve on its own. The worker reported taking pain killers but these were not relieving their pain. They stated they were unable to work. The worker stated they had not been able to communicate with the employer as the employer did not return their calls.
The Employer’s Report of Injury (Form 7) dated November 18, 2021, noted the worker had been employed with them for 5 years working two hours per shift. The employer advised the injury was not reported until November 12, 2021. In their attached submission, the employer noted the worker had been off since October 5, 2021, and had clearly told their supervisor that their absence was not work-related. They advised the worker reported that they would be resigning due to their medical conditions and were no longer able to perform their work. The worker stated they did not want to get hurt at the workplace because of their existing medical conditions. Then the worker advised that they would apply for EI sick benefits. The employer requested medical documentation to support the absence and a completed Leave of Absence form. This information remained outstanding as of November 18, 2021. The employer advised that on November 12, 2021, the worker sent a text to their manager requesting WSIB paperwork. This occurred after 39 days off work. The employer noted that had the worker reported the injury to be work-related they would have been able to complete a thorough accident investigation immediately and they would have had the opportunity to offer modified work.
On November 18, 2021, the worker provided their initial statement to the WSIB. The worker advised they first sought medical attention on October 12, 2021. They attended the xxxx Hospital and were prescribed morphine and were advised to start physiotherapy. The worker advised that they had finished mopping and vacuuming and had put everything away and as they were heading upstairs to leave they felt a sharp pain. They felt faint and sweaty and they were in tears so they sat on a bench. The worker
attributed their injury to lifting all of their cleaning supplies. The worker advised that they reported the injury to their supervisor on the morning of October 5, 2021, via text message. The worker stated they requested their Record of Employment (ROE) on October 4, 2021, but was advised they could not apply for EI benefits.
The emergency record from xxxx Hospital dated November 12, 2021, confirmed the worker was previously seen at the same hospital on October 18, 2021, for back pain but the worker had not disclosed the primary reason for their back pain was work-related. The worker returned to the emergency room with ongoing back pain and wanted WSIB documents completed. The Health Professional’s Report (Form 8) dated November 12, 2021, advised the worker sustained a muscle strain and could begin modified work the next day.
On November 19, 2021, the employer advised the WSIB that the worker did not fill out a workplace incident form. They were not aware the worker was making a WSIB claim until November 12, 2021. The employer advised the worker had a history of taking time off work for 3-4 days because of non- occupation medical issues. The worker had provided a medical note stating they needed to be off work as they did not want to hurt themselves. The supervisor had advised that the worker reported they were going to resign due to medical issues, as they did not feel like they could work anymore. The employer requested a formal resignation letter, but then the worker reported they did not want to resign and that they were going to go off on sick leave until they spoke to their doctor.
A case memo dated November 22, 2021, documents the supervisor’s statement to the WSIB. They sent the text message from October 4 & 5, 2021 to the Health and Safety contact. The supervisor stated the worker had been having medical issues since January 2021 and never reported any of these as work-related. The worker would speak about their arthritis and the supervisor assumed the worker was not at work because of this. The worker had a history of calling in sick and sending in medical notes. In September 2021, the worker commented they could no longer do the job and might have to resign.
Included in the case record are copies of the text messages, between the worker and the supervisor. The following is a summary of the text messages provided:
October 4th at 4:09 pm was the first text message provided and it stated: “I am not resigning but I can not [sic] do the job at this time”.
To which the supervisor advised they would need proper documentation. The employer was aware the worker was crying due to pain and may need a reassessment prior to returning to work. They noted that the worker had made it sound like they were resigning.
The worker advised they would be speaking to their specialist, who had been taking care of their back issues since January 2021. The worker then wrote, “I guess I will have to resigning [sic] until I hear from my dr”.
November 1, 2021, at 10:27 am, to xxxx (position unknown), the worker wrote they were having a CT scan on November 7, 2021, and would provide an update once they were seen by their doctor.
November 10, 2021, the worker wrote they needed another CT scan and more doctor’s appointments. They did not have any answers. xxxx advised the worker needed another Leave of Absence form and advised the worker to keep them updated. The worker advised that they were not on a leave of absence but a sick leave.
November 11, 2021, the worker advised they would not complete leave of absence paperwork as they were on a sick leave and would return to work as soon as possible.
Assessment of the Evidence
According to policy 11-01-01 (Adjudicative Process), decision-makers use the “five-point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:
- An employer
- A worker
- A personal work-related injury
- Proof of accident, and
- Compatibility of diagnosis to accident or disablement history.
There is no dispute regarding the worker and employer relationship. The matters to be resolved are whether there was a personal work-related injury by accident, proof of that accident, and, if so, if the injury to their low back is compatible with the accident history.
When adjudicating whether proof of accident is present, the WSIB decision-makers look for the “four immediates” (i.e. immediate pain, immediate reporting, immediate medical attention, and immediate work disruption). Additional evidence, such as the presence of witnesses and continuity of complaint to co- workers following the accident, is also considered, when appropriate.
In this specific case, while the worker reported an immediate pain and went off work immediately, I found no evidence the worker reported the injury as work-related, not to their employer and not the health care professionals, until over a month had passed. I also note there was a substantial delay in seeking medical attention.
I acknowledge the worker stated they believed they told their employer that they were off work due to a work-related injury, but I found no evidence to corroborate this statement. The text messages dated October 5, 2021, started with “I am not resigning but I can not [sic] do the job at this time”. This leads me to believe there had to have been communications prior to this message, however, the worker did not recall sending text messages on that date and therefore could not provide any further information. In the text messages that followed, there was no mention that the worker was off work because they hurt their back at work. In fact, the worker repeatedly stated they were on a “sick leave”.
When I also consider the hospital report dated October 18, 2021, where Dr. Van De Kleut noted the worker denied that an injury precipitated the onset of pain, I find this further refutes the worker’s claim of a work-related injury. I also note the worker reported a history of low back pain and was previously prescribed morphine. I refer to Dr. Van De Kleut’s comment that the worker had been seen in the emergency room a month earlier, on September 18, 2021, for back pain and they had their prescription for morphine renewed. The text messages also support the worker had been seeing a specialist for their back since January 2021. The worker denied having prior back issues, seeking treatment for their back, having a prior prescription for morphine or seeing a specialist for their back. However, when considering if the onset of the worker’s pain was caused by their work activities, I placed more weight on the documents in the case record.
I acknowledge two teachers signed witness statements that they saw the worker crying while sitting on a bench at work, this is not sufficient to establish proof of an accident. The worker could not identify a specific event that caused the injury and onset of pain. This means that it cannot be presumed that because their pain came on at work that it was caused by work. The evidence must show the personal injury not only happened at work but also happened because of the work, by way of an accident. I find the evidence lacking when it comes to establishing that the work duties caused the injury/pain.
I noted that Dr. Van De Kleut’s report dated October 18, 2021, stated the worker had worsening pain at work with lifting, bending, pushing and pulling activities. Again, this is not sufficient to establish that the work caused the injury that resulted in low back pain. Although the work duties may have rendered the worker’s chronic low back condition more symptomatic, this does not equate to evidence of a work- related accident.
I find the preponderance of the evidence does not support the worker sustained a work-related injury by way of accident. In coming to this conclusion, I relied in particular on the following evidence:
- The worker requested their ROE to apply for sick benefits
- Then the worker advised the employer they were on a “sick leave”
- During their contacts with the employer, the worker did not advise they were off work because of a work-related injury
- There is no evidence the worker reported the injury and lost time as work-related until 6 weeks after they stopped working
- The worker delayed seeking medical attention for two weeks – while the worker stated they had difficulty reaching their doctor, they still waited two weeks to go to the hospital and did not provide a reasonable explanation for the lengthy delay
- When assessed on October 18, 2021, they denied having an injury that precipitated the onset of low back pain
- The worker was seen at the hospital on September 18, 2021, for the same reason – low back pain and to renew their morphine prescription
- The worker had been seeing a low back specialist for 9 months prior to the injury
- There was no injuring process – the pain came on spontaneously after the worker had finished their work duties
- The worker advised their employer they were planning on resigning due to their medical issues
Based on the above, I have been unable to establish proof of accident as is required in order to approve a claim under policy 11-01-01. The worker is not entitled to benefits for their low back.
CONCLUSION
The worker’s objection is denied.
DATED October 28, 2022
Chantal Reid
Appeals Resolution Officer
Appeals Services Division