Worker v. Employer, 2022 CanLII 33320

20220025

REPRESENTED by:

N/A

HEARD by:

Dated:

February 11, 2022

ISSUE

The worker objects to the Eligibility Adjudicator’s (EA) decision dated October 14, 2020, which denied initial entitlement to a low back injury.

BACKGROUND

This then 40-year old Gas Technician claimed a work-related injury occurring on June 10, 2020, when they were lifting the handles of a heavy jackhammer and felt a “small pinch” in their low back. The minor pain resolved and they returned to their regular job duties.

The worker noticed intermittent pain into their buttock the following week, and thought they had pulled a muscle. They continued to work. On July 6, 2020, the worker commenced eight (8) weeks of chiropractic treatment. The worker was assessed as having piriformis syndrome.

On September 12, 2020, the worker attended the hospital for a hand laceration injury and while there, reported to an emergency physician that they had sciatic symptoms into their leg for the past six (6) weeks. The worker was referred for an MRI, which demonstrated a right-sided L5-S1 disc protrusion.

The worker informed their employer on September 25, 2020 that they had received diagnostic testing results for an ongoing lower back issue, which they felt had resulted from using a jackhammer at a worksite on June 10, 2020. They advised that they were using the jackhammer, which weighed 90 pounds, for a period of 15 to 20 minutes to break out the road, and when lifting the handles to free the jackhammer from the concrete, they felt a minor tweak in the low back. Further to this report, a claim was established for a low back injury.

The EA denied entitlement to a low back injury in a decision dated October 14, 2020, as proof of accident could not be established due to the delay in reporting the injury as work-related.

On December 1, 2020, April 12, 2021, and October 20, 2021, the EA reconsidered the October 14, 2020 decision, taking into consideration new information presented by the worker’s representative. The EA upheld the decision to deny entitlement in the claim.

The worker’s objection to the EA’s decision of October 14, 2020 forms the basis for this appeal.

PRELIMINARY MATTER

In my review of the claim file information, I note that the Appeals Readiness Form and the worker representative’s submissions incorrectly references December 1, 2020 as the decision date that pertains to the issue under appeal. I have determined that the correct decision date is October 14, 2020, which is the date of the initial denial of entitlement letter. This decision was then reconsidered and upheld on December 1, 2020, April 12, 2021, and on October 20, 2021.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), Section 13(2)

Operational Policy Manual

Published

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. Based on my review of the evidence, I find the worker does not have initial entitlement to a low back injury. My findings and analysis are explained below.

The worker’s representative provided a written submission with the Appeal Readiness Form (ARF) dated September 13, 2021, outlining their position that the worker’s claim should be accepted on the basis that the worker suffered a chance event resulting in an injury, and noting this, it is presumed that the worker’s injury arose out of and in the course of their employment under s. 13(2) of the WSIA. They submit that co-workers witnessed the workplace accident, which establishes proof that the injury occurred at work.

Additionally, they contend that the worker delayed in seeking medical attention because they did not realize that their disc herniation was related to the work event on June 10, 2020, as they believed it to be a muscle strain that would resolve with time. The representative references multiple Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions, which have accepted entitlement despite significant delays in seeking medical attention to support their position. In summary, they submit that the decision to deny entitlement should be overturned, and the worker’s low back injury, which has resulted in two surgical repairs, should be accepted in the claim.

The employer is not participating in the appeal, and did not provide a Participant Form. They have not provided any additional submissions regarding the issue other than the initial documentation on the claim file, nor have they indicated their position regarding the matter at hand.

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. It is important to note the presumption clause does not apply when determining initial entitlement in disablement cases.

An “accident” as defined by Operational Policy 15-02-01, Definition of an Accident, does not necessarily require that a chance event be the cause of the injury. The accident may be in the form of a disablement, which would include a condition emerging gradually over time, or an unexpected result of working

duties. However, there is an important difference between a chance event and a disablement injury. A chance event is defined as an identifiable unintended event, which causes an injury, such as a trip and fall, or a piece of debris falling and striking a person. When a chance event results in an injury during the course of the employment, it is presumed that the injury also arose out of the employment (unless the contrary is shown). In a disablement injury, that presumption does not exist. The onus is on the worker to demonstrate the injury not only occurred during the course of the employment, but that it also arose out of the employment. In other words, the evidence must clearly show that the work caused the injury. It is not sufficient to establish a possible relationship with the workplace activities; there must be a causal relationship between the work being performed and the disablement.

In determining proof of accident, the policy suggests decision makers consider a number of factors. These include, whether an accident or disablement situation existed, whether there are any discrepancies in the date of accident and the date the worker reported the injury and/or stopped working, whether there was any delay in the onset of symptoms or in seeking health care attention, and whether there were any witnesses.

In reviewing the claim, I have examined the accident history as presented in the file record and submissions and I have determined that a chance event is not present. In reviewing the Worker’s Report of Injury (Form 6) dated September 29, 2020, the worker states they felt a “small pinch or minor tweak” in their lower back when lifting on the handles of the jackhammer to free it from the concrete. The worker took a short break to hydrate and after the rest felt that the minor tweak had resolved itself, and they continued working without any discomfort or pain. The following week, the worker started to notice a gradual onset of increased intermittent discomfort and pain into their right buttocks when in certain positions, which led them to seek chiropractic treatment for what they believed was a muscle strain. This accident history is consistent with what the worker reported to their employer on September 25, 2020. I accept this to be an accurate account of the accident history. I find that the worker does not describe an identifiable event nor an injuring process that is sufficiently discrete to constitute a chance event within the meaning of the Workplace Safety and Insurance Act, and therefore I find that the presumption clause as described above, does not apply.

As I am unable to determine that a chance event type accident occurred, I will review for consideration of a disablement, unexpected result of work duties type of accident.

With respect to establishing initial entitlement, operational Policy 11-01-01, Adjudicative Process, 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.

There is no dispute that the first and second criterion in the policy are met, as there is an employer and a worker.

In this case, the worker has claimed a disablement, unexpected result of their working duties type of incident, causing injury to their low back. I note that while the worker representative’s submission references that the worker had a period without any symptoms, and then an increase or gradual

worsening of symptoms, the claim was not adjudicated as a gradual onset disablement injury, but as an unexpected result of working duties type of injury with a specific incident claimed to have caused the disc herniation. Enquiries were not undertaken to determine whether the worker’s duties were compatible with a gradual onset injury and this issue is not before me.

As noted above, the worker’s detailed statement on their Form 6 describes that they felt a small pinch in their lower back when lifting on the handles of a jackhammer to free it from the concrete. The worker’s pain resolved by the time they had completed their hydration break. Although they returned to performing their regular job duties immediately after this, they noted that the jackhammering and heavier work had been completed for the day. The worker did not have pain in their low back in the following days. The next week, they noticed “a small intermittent discomfort” in their right buttocks that would come and go, which felt like a tight muscle. They continued to perform their full job duties, which they describe as requiring them to dig with a shovel, lift heavy equipment, carry materials and tools, climb in and out of trucks, use pipe wrenches, and operate excavation machinery.

The worker described that after a few weeks of performing their job duties, they experienced a gradual increase of pain and discomfort. As they thought they had pulled a muscle, they decided to see their chiropractor. The worker did not report the injury as work-related to the chiropractor, and the chiropractors’ reports do not indicate an awareness of any specific cause of injury. The worker had some improvement over the eight (8) weeks of treatment, however noticed the pain worsening and changing to a sharp pain that radiated down their leg into their foot. When the worker was seen at the emergency department on September 12, 2020 for a non-work related hand laceration, they stated that they “took the opportunity to also mention that [they] have been suffering from sciatica for at least 6 weeks or more and [they are] now concerned that it could be more than just the piriformis muscle”. The emergency physician ordered an MRI and when the worker received the result on September 24, 2020 that they had a herniated disc, they reported to their employer that in retrospect, the disc herniation “may have been caused by or shortly after [they] used the jackhammer on June 10, 2020…”.

The MRI dated September 18, 2020, noted that the worker presented with a six-week history of sciatic pain. The MRI provided the impression of a right lateral disc protrusion at L5-S1 causing impingement of the right L5 nerve root within the lateral recess and also mild right neural foraminal stenosis.

The worker representative has provided a written submission dated September 13, 2021, which notes that at the time of the work incident, the worker felt a “sharp pain” in their low back, which caused them to drop the jackhammer, and then yell out to their co-workers that they had hurt their back. Despite this, the worker then advised that the pain was gone and they were able to resume working. The worker indicated that they did not believe that the injury was significant or reportable at that time, and then did not have any back pain over the next few days and continued to work. Days later, the worker was sitting in their truck with their feet resting on the dashboard when they felt pain in their right buttock, which again subsided. It is noted that the worker did not connect this pain to the pain from a few days previous, as this was in a different area.

In my review of this evidence, I place more weight on the contemporaneous statement provided by the worker in their Form 6 dated September 29, 2020 than on the representative’s submission dated one and a half (1.5) years after the date of injury. I find that the accident history varies between the two documents, and I find it significant that the worker’s account in the Form 6 does not include any details about having to drop the jackhammer and having co-workers assist them and have discussion regarding the back pain. Conversely, it describes a report of a minor tweak of pain. I note the worker indicates that they took a break after feeling this tweak – not because they needed to as a result of their pain, but specifically for a “hydration break”. I find that this further speaks to the insignificance of the incident.

In determining whether proof of accident has been established in this case, I consider the following information relevant in reaching my conclusion:

The worker stated that the minor pain in their back on June 10, 2020 resolved, and it wasn’t until the following week that they began to experience some intermittent discomfort, which then gradually worsened. The worker continued to perform very physically demanding work duties over the next three (3) months without requiring modification or accommodation.
As noted in the worker representative’s submission, the worker was used to having normal aches and pains due to their physical job duties, and assumed they had pulled a muscle. The worker saw their chiropractor almost one (1) month after the June 10, 2020 incident, who advised the worker that they had piriformis syndrome. There was no report of a specific work-related incident to the chiropractor, despite the worker attending treatment for the next eight (8) weeks.
The worker did not relate their subsequently diagnosed disc herniation injury to the incident on June 10, 2020, until 3.5 months later, when, in retrospect they felt that it “may” have occurred when using the jackhammer, or after this. I note that the worker themself, was not clear that the incident on June 10, 2020 was the cause of their disc herniation. As noted in the representative’s submission, the worker “never suspected” that the incident on June 10, 2020 was connected to the radiating pain in their leg and buttock.
The worker representative has submitted multiple WSIAT decisions to support their position that the worker’s delay in seeking medical attention was reasonable, and proof of accident is established despite the delay in medical attention. I note that I am not bound by prior decisions and I consider each claim on its own merits. In my review of these decisions, I do not find the circumstances of the cases to be similar in that the first, second, and fourth decisions (Decision No. A, B, and C respectively) are situations in which the workers formally reported their injuries immediately as work-related to their respective employers, which established proof of accident. In the third decision, the worker did not report their injury to their employer immediately; however had specific exposure to vibratory tools and repetitive job duties that established a temporal connection and medical compatibility to their diagnosis. In this case, the worker reports they had immediate minor pain, but there are significant delays in reporting the injury, seeking medical attention and in disablement. For these reasons, I do not place weight on the WSIAT decisions as they pertain to this claim, as it is not only the delay in seeking medical attention that hinders the establishment of proof of accident in this case.

Based on my assessment of the evidence in the claim file, while I am able to accept that the worker felt a small pinch when lifting the handles of the jackhammer on June 10, 2020, I am not persuaded that this incident caused the worker’s L5-S1 disc herniation. I find it significant that the worker had an absence of symptoms for multiple days following the June 10, 2020 incident. They then experienced intermittent pain, and then a gradual increase and worsening of pain. I note that in the medical opinion provided in the worker representative’s submission, it is indicated that while the clinical course of a disc herniation is that it begins with back pain and then radiation into the buttock, it does not explain an absence of symptoms in the interim period with the worker also performing physical work during this period. I note that the injury was reported to have occurred on a Wednesday, with the radiation into the buttock occurring in the next week. I further note that the medical opinion from Dr. Kraemer, in response to the question of “Is there any other likely cause for the workers’ herniated disc?”, states that the information available for review was that the worker was healthy with no functional disability related to [their] back until the time of [their] work injury. Therefore the only likely cause of the workers’ herniated disc is [their] workplace injury.” I find it noteworthy, however, that the worker did not have any functional disability following the incident of June 10, 2020, and was able to continue to perform physically demanding job duties.

I find the delay between the specific incident on June 10, 2020 and the onset of disability breaks the chain of causation in this case. The worker continued to perform their regular job duties for more than three (3) months without informing their employer about their injury or requiring accommodations. They

did not report a related work incident to the chiropractor. Following eight (8) weeks of treatment, the worker did not seek further medical attention from their doctor, and mentioned to the emergency physician that they had been having sciatica for approximately six (6) weeks, which led to an MRI referral. As noted, entitlement as a gradual onset injury has not been adjudicated and is not before me.

I am not persuaded the incident on June 10, 2020 is the source of the worker’s diagnosed disc herniation because of significant delays in both reporting an injury and seeking medical attention. If the work incident caused the L5-S1 disc herniation, I conclude the worker would have had difficulty performing their regular job duties and they would have required medical attention in the days following the work incident. Given the absence of immediate disablement, I am unable to accept that proof of accident to the specific incident on June 10, 2020 has been established.

Consequently, in light of the fact that I have concluded that proof of accident has not been established, I find that the criteria for an allowable claim under policy 11-01-01 has not been met. As a result, I find the worker does not have entitlement to a back injury under the claim.

CONCLUSION

The worker does not have initial entitlement for a low back injury, as proof of accident is not established. The worker’s objection is denied.

DATED February 11, 2022

Appeals Resolution Officer Appeals Services Division