APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220070
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
breighann fairburn, appeals resolution officer
MAY 10, 2022
ISSUES
The worker objects to the Eligibility Adjudicator’s decision dated February 18, 2021, denying initial entitlement to benefits for a lower back injury for an accident date of January 25, 2021.
BACKGROUND
This Sanitation Worker reported a lower back injury sustained on January 25, 2021, due to repetitive duties requiring them to bend over for the majority of the day. The worker saw their Nurse Practitioner on
February 8, 2021 and received a diagnosis of lower back muscle strain.
The worker submitted that their regular duties require reaching and stretching while cleaning the greenhouse infrastructure. They submitted that this work was highly physical and involved crouching, stretching and reaching. The worker reported that they noticed discomfort about halfway through the day on January 25, 2021, their first day on the job. The worker booked off work on January 26, 2021 and January 27, 2021 and worked a partial day on January 28, 2021.
In the decision dated February 18, 2021, the Eligibility Adjudicator denied initial entitlement to benefits for the lower back injury. They were unable to establish that the work duties were a significant contributing factor to the worker’s lower back injury, noting limited work exposure. This was the first day of the worker’s employment. Following morning orientation, the worker performed their work duties for three hours. The worker reported pain prior to completing their work duties.
The worker objects to the denial of initial entitlement to benefits for a lower back injury. This objection is now before the Appeals Services Division.
AUTHORITY
Workplace Safety and Insurance Act, 1997, 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. For the reasons set out below, I find that the worker does not have initial entitlement to benefits for a lower back injury for the accident date of January 25, 2021.
Worker Position
In their submission dated December 15, 2021 the worker representative provided a report from the Occupational Health Clinics for Ontario Workers Inc. dated October 29, 2021, to support their position that the worker’s lower back strain resulted from their regular duties. With their Appeals Readiness Form dated April 21, 2021, the worker representative submitted that injury was compatible with the worker’s job duties and that the presumption clause applies.
Employer Position
The employer is not participating and has not provided a submission for review.
When considering if this claim meets the allowable requirements, I have reviewed Operational Policy 11-01-01 – Adjudicative Process. This policy provides that a claim 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 criteria in the policy are met, as there is an employer and a worker. The issues to be resolved in this claim is the third, fourth and fifth criteria, which set out that an allowable claim, must have a personal work-related injury, proof of accident and compatibility of the diagnosis to the disablement history.
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.
The worker did not attribute their lower back injury to a specific incident. Therefore, I have determined that the accident history does not represent a chance event type accident. The accident history also does not represent a disablement type accident, as an unexpected result of work duties. The worker attributes their lower back injury to the repetitive nature and sustained postures required to complete their regular duties. They did not attribute it to a specific action. Therefore, I will review and determine if there is the presence of a work-related injury in this gradual onset type accident.
I have reviewed the clinical information on file to establish the presence of a personal work-related injury. It is important to note the presumption clause does not apply when determining initial entitlement in disablement cases. In other words, in cases of a disablement injury, it must be shown that the injury both occurred in the course of employment and arose out of the employment. It is not sufficient to establish a possible relationship with the workplace activities. Therefore, I must determine if the lower back muscle strain occurred in the course of and arose out of the worker’s employment in order to determine if a personal injury is work related.
The Worker’s Report of Injury (Form 6) dated February 8, 2021 reported an injury to their lower back while cleaning the area where the marijuana plants were being grown. The injury occurred on January 25, 2021 at 10:00am. They felt seizing of the lower back muscles and noted that their lower back was hurt. The worker reported the injury to their employer on January 25, 2021. They lost time beginning January 26, 2021. The worker returned to work on January 28, 2021 and worked for 3.5 hours before leaving early due to discomfort.
The Employer’s Report of Injury (Form 7) dated February 9, 2021 confirmed that on February 8, 2021, the worker reported an injury to their lower back occurring on January 25, 2021, their first day of work with the employer. They noted that the worker worked two part days and did not have a shift since then. They saw their doctor on February 8, 2021 and reported a work-related injury on the same day.
The Health Professional’s Report (Form 8) dated February 8, 2021, provided a diagnosis of muscle strain to the lower back. The Nurse Practitioner indicated an accident date of January 25, 2021 and the mechanism of injury as bending over most of the day doing repetitive movement. They recommended rest, heat and a muscle relaxant. They stated that the worker was unable to return to work at that time due to their decreased range of motion and indicated that the worker needed time to stretch their muscles prior to returning to work.
During conversation with the Customer Service Representative on February 10, 2021, the worker confirmed that they returned to work on January 28, 2021, and the employer allowed them to tour the plant and suggested that the trimming department may be a better fit. The worker returned to the sanitation department while considering the change to the trimming department. They noted that they left half way through the day on January 28, 2021 and had not returned to work as they have no movement of their back and have pain.
During their conversation with Eligibility Adjudicator on February 12, 2021, the employer explained that the worker completed two to three hours of actual work on January 25, 2021. They submitted that they worker was not exposed to work for enough time to establish a lower back injury. They confirmed that the worker texted the employer on January 30, 2021 requesting to start work on February 8, 2021 due to their back pain. Another text message from the worker on February 8, 2021, requested a start date of February 15, 2021, due to back pain.
I find that there is evidence of a delay in reporting and a delay in seeking healthcare in this file. The worker submitted that they reported a work-related injury to the employer on January 25, 2021, at 10:00am. They did not see their Nurse Practitioner until February 8, 2021. The employer submitted that the worker did not report a work-related injury until February 8, 2021, when they provided a Form 8 due to back pain. There is evidence that the worker complained of back pain on January 28, 2021, when they returned to work for a partial day. There is evidence that the worker reported discomfort due to the job duties assigned on January 25, 2021, thus the employer attempted to accommodate the worker with other duties in the trimming department.
The physiotherapist’s clinical note dated February 13, 2021 noted that the worker reported lower back pain due to being bent over working for most of their first day of work on January 25, 2021. The worker was unable to get out of bed due to lower back pain the following day. The worker reported that their pain had largely resolved and they returned to a gym routine without any flare-ups or symptoms. They did not recommend further treatment.
The health professionals have submitted that the worker sustained a lower back muscle strain and pain from their job duties on January 25, 2021. The physiotherapist submitted that they worked in a bent over position for most of their first day, where in fact the worker only performed their duties for two to three hours. The Nurse Practitioner indicated an accident date of January 25, 2021 and the mechanism of injury as bending over most of the day doing repetitive movement. The Health Professional’s Progress Report (Form 26) dated February 23, 2021 reported that the worker achieved a full functional recovery from their lower back strain. The Nurse Practitioner submitted that the worker’s strain likely resulted from working in a flexed posture while performing duties, to which the worker was not accustomed.
The Occupational Health Clinics for Ontario Workers Inc. report dated October 29, 2021 noted that the worker did not have a history of lower back issues prior to January 25, 2021. They submitted that the worker’s described condition and recovery time fits the definition of acute back pain. The worker described that in the two to three hours of work they wiped and cleaning growing equipment within the greenhouse following harvesting. They used cloths, a pail of water and paper towels. The worker described performing prolonged crouching to wipe and clean equipment that was approximately two to three feet above the floor. They also described repetitively stretching and reaching to wipe down the equipment.
When considering the information and the clinical evidence, I do not find that there is evidence of an injuring process. I place little weight on the Occupational Health Clinics for Ontario Workers Inc. report dated October 29, 2021 and note that the diagnoses provided around the time of the injury were based on the description of the worker spending the majority of their day in a forward bent position. I do not find that working two to three hours, following morning orientation, wiping down and cleaning equipment that is two to three feet off the floor is sufficient to establish a lower back muscle strain. It is expected that when beginning a job that is new to a worker, doing tasks that they are unaccustomed to, there may be some muscle discomfort or tightness. The worker described actions of crouching, bending, reaching and stretching. This supports that the worker moved in various directions and does not support prolonged or sustained postures over the two to three hour timespan. Furthermore, the worker’s reported time of injury, of 10:00am, supports that the worker had back pain prior to performing their regular duties.
The worker performed the duties on January 25, 2021 and January 28, 2021, for two to three hours each day. The diagnosis was not received until February 8, 2021, when the worker saw their Nurse Practitioner. Given the delay in seeking healthcare, delay in diagnosis and the limited work exposure, I am unable to establish that the diagnosed lower back muscle strain occurred as a result of their regular working duties.
Therefore, I find that the delay in seeking healthcare, the delay in diagnosis and the lack of injuring process does not support that the lower back strain arose out of and in the course of employer. In accordance with Operational Policy 11-01-01 – Adjudicative Process, I find that the worker does not have initial entitlement to benefits for their lower back strain for the accident date of January 25, 2021.
CONCLUSION
Initial entitlement to benefits for a lower back strain are denied.
The worker’s objection is denied.
DATED May 10, 2022
BreighAnn Fairburn
Appeals Resolution Officer
Appeals Services Division