APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20250045

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

J MANGOFF, APPEALS RESOLUTION OFFICER

FEBRUARY 3, 2025

ISSUE

The employer objects to the Eligibility Adjudicator’s January 25, 2024, decision, that was reconsidered on February 16, 2024, and then again on September 19, 2024, which allowed entitlement for a low back soft tissue injury.

BACKGROUND

On January 7, 2024, the worker reported they bent over to pick up egg cartons that were on the ground and felt pain in their lower back. On January 8, 2024, the worker’s pain was so severe that they were rushed to the hospital by ambulance for treatment. The worker was admitted to the hospital from January 8, 2024, until January 12, 2024, when they were discharged.

On January 25, 2024, the Eligibility Adjudicator found there was a causal relationship between the accident history and the injury; and as such, entitlement for a low back soft tissue injury was allowed. The worker was paid full loss of earnings (LOE) benefits from January 8, 2024, until January 12, 2024, noting the worker was hospitalized and unable to return to work.

The employer offered the worker modified duties immediately which the Eligibility Adjudicator found were suitable when the worker was discharged from the hospital. As such, the payment of ongoing LOE benefits were denied noting the worker declined the modified duties offered by the employer. The worker was paid full LOE benefits from January 8, 2024, until January 12, 2024.

The worker returned to work on January 19, 2024, on a graduated return to work plan, and reported no ongoing issues. The employer confirmed the modified duties were available on a full-time basis and the Eligibility Adjudicator found the medical evidence did not support the need for a graduated return to work. As such, the payment of partial LOE benefits was denied.

This decision was reconsidered on February 16, 2024, and on September 19, 2024, and the decision allowing entitlement was confirmed. On September 19, 2024, the diagnosis of disc herniation was denied.

The employer’s position is that the criteria to grant entitlement has not been satisfied and asked that entitlement be rescinded. The worker is participating in the appeal; however, has not provided any further arguments to be considered when reviewing the entitlement decision.

As the decision remained unchanged, the matter was referred to the Appeals Services Division for further review and consideration.

AUTHORITY

Operational Policy Manual

Published

11-01-01 – Adjudicative Process

November 3, 2008

15-02-01 – Definition of an Accident

October 12, 2004

15-02-02 – Accident in the Course of Employment

October 12, 2004

ANALYSIS

I have carefully considered all the available information, legislation, relevant operational policies, and any submissions provided in reaching this decision. After having conducted a thorough review of the circumstances of this claim, I find the evidence does not support granting the employer’s appeal. The following is a summary of my observations and findings.

The Workplace Safety & Insurance Board’s (WSIB) policy for the Adjudicative Process (11-01-01) states in part:

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case.

Five point check system

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 Proof of accident

Decision-makers may consider the following when examining proof of accident,

• 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? Diagnosis

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB’s clinical staff to assist in making this determination.

Operational Policy 15-02-01 defines accident and states:

Accident includes

• a wilful 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

Disablement

The definition of disablement includes

• a condition that emerges gradually over time

• an unexpected result of working duties.

According to the evidence provided by the worker, they claim to have developed a low back injury from a disablement type accident that arose out of and in the course of their employment. Under these circumstances, the worker does not have the benefit of the presumption clause under s. 13(2) of the WSIA, which states in part:

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. As a result, the worker has the burden to prove the work-relatedness of their conditions.

Operational policy 15-02-02 is used when determining whether a personal injury by accident occurred in the course of employment and states in part:

A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.

Place

If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.

If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.

Time

If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work.

If a worker does not have fixed working hours or if the accident occurred outside the worker's fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.

Activity

If a personal injury by accident occurred while the worker was engaged in the performance of a work- related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.

If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as

• the duration of the activity

• the nature of the activity, and

• the extent to which it deviated from the worker's regular employment activities.

In determining whether an activity was incidental to the employment, the decision-maker should take into consideration

• the nature of the work

• the nature of the work environment, and

• the customs and practices of the particular workplace.

Application of criteria

The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.

Analysis

The medical reporting on record has been reviewed and I find the following particularly relevant to the issue before me.

The medical report from the January 8, 2024, assessment at the hospital diagnosed the worker with mechanical low back pain and identified the injury as a sprain/strain. The date of accident was

January 7, 2024, and the worker reported they were bending to pick something off the floor. The worker was admitted to the hospital for an analgesia and physiotherapy.

On January 8, 2024, the worker had an x-ray of their lumbar spine, and no acute abnormality was identified.

The medical report from the hospital confirmed the worker was discharged on January 11, 2024, diagnosed the worker with low back pain (herniated disc). The discharge summary noted the worker was seen on January 8, 2024, after having back pain after picking something up at work.

In this claim, there is no dispute the worker was employed with the employer at the time of the injury. The other criteria that must be satisfied is whether a personal work-related injury occurred, was proof of accident established, and was the diagnosis compatible to the accident history.

The employer’s representative argued there are three different accident histories provided and they questioned the mechanism of injury. On January 17, 2024, the worker confirmed that they bent over while at work and felt off. The medical reporting to the paramedics dated the worker was attempting to pick up garbage and twisted. The emergency report stated that they were lifting a box and twisted.

The employer’s report of injury was completed on January 12, 2024. The date of accident was identified as January 7, 2024, with reporting on January 11, 2024. The employer indicated the worker reported their back was injured on January 7, 2024, without a specific injury or reason.

The worker’s report of injury completed on February 6, 2024, identified the date of accident to be January 6, 2024, which was reported on January 7, 2024. The accident history was they were standing at line 4 working on a machine when a coworker passed by, and their legs were entangled. The worker indicated they jolted their back to stop themselves from falling over. Further, the worker reported they continued working and it was not until the next day when they woke up on January 7, 2024, they had problems with their back. The worker described that on January 7, 2024, they woke up and their back was not feeling right. When at work they bent over to pick up garbage and had pain in their lower back. The worker called their supervisor and the worker advised they were leaving because their back hurt. When asked if it was work-related the worker indicated they didn’t know as it did not occur to them it could be related to the incident that happened the previous day. On January 8, 2024, the worker was unable to get out of bed and a friend called an ambulance to bring them to the emergency department.

I acknowledge the worker did mention an incident that occurred on January 6, 2024; however, the worker was able to finish their shift without any issue. On January 7, 2024, the worker reported to have bent over to pick up a carton when they felt a sharp pain and tightness across their lower back. The pain worsened throughout their shift and the worker reported they left early due to the pain.

The accident history accepted by the operating area was the January 7, 2024, low back injury that resulted from bending over to pick up an egg carton. While there were two incidents reported; I concur with the operating area and find the mechanism of injury accepted in this claim is from the

January 7, 2024, injury.

The employer’s representative noted that on January 7, 2024, the worker did not mention anything to the employer about bending over to pick something up and it is argued this was not a big enough event at the time to report anything to their employer. In addition, the employer indicated the worker did not report the specific injury to the employer on January 7, 2025; however, the employer confirmed they were aware of an injury as they called the worker who was in the hospital. While the employer questions the delay in reporting, based on my review of the evidence, I do not find there was a significant delay in reporting.

The employer’s representative also argued the act of bending over would not cause lower back pain so great that one could not move the next day and require hospitalization. I recognize bending over does not, in most cases, cause a disabling injury; however, entitlement in this claim was based on the facts and circumstances reported. The medical report diagnosed the worker with a low back strain/sprain and therefore, I find this is evidence of a personal injury. I considered operational policy 15-02-02 when determining whether the accident occurred in the course of the employment. The worker developed an

onset of pain during their shift, the activity they were performing (picking up an egg carton) was on the employer’s premises, and was reasonably part of their job duties.

I have reviewed the mechanism of injury, and while the employer may not agree, I find this would be compatible to the onset of back pain and/or a low back sprain/strain. The medical reporting diagnosed the worker with a disc herniation; however, the Eligibility Adjudicator noted the diagnostic testing did not reveal the worker had a disc herniation and entitlement was not allowed for this condition. The issue of entitlement for a disc herniation is not before me and therefore, I make no finding on whether this condition is related to the workplace injury.

For the reasons listed above, I find the evidence to grant entitlement has been satisfied and the evidence supports proof of accident had been established, that the worker had a low back strain/sprain that arose out of and in the course of their employment, and the diagnosis is compatible to the accident history accepted. As such, the decision to allow entitlement for low back strain/sprain is confirmed.

CONCLUSION

I conclude the criteria to grant entitlement has been satisfied and as such, the worker is entitled to benefits for low back sprain/strain.

The employer's objection is denied.

DATED FEBRUARY 3, 2025

J Mangoff

Appeals Resolution Officer Appeals Services Division