WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 294/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 294/13 BEFORE: S. Darvish: Vice-Chair HEARING: January 19, 2015 at Toronto Oral DATE OF DECISION: May 14, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1047 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 12, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Abitbol, Paralegal Mr. Smolander, Paralegal N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 294/13 REASONS (i) Introduction [1] The employer and worker appeal a decision of the ARO, which concluded that the worker: had initial entitlement to a head injury and neck strain as proof of accident and injury had been established; was not entitled to a permanent impairment for neck strain and head injury as the worker had recovered from these minor injuries; was not entitled to occipital neuralgia and benign positional vertigo; was not entitled to taxi services because the worker was capable of driving; was not entitled to chronic pain disability ( CPD ) and psychotraumatic disability; was not entitled to work transition services because the work offered by the employer was suitable at no wage loss; and was not entitled to any LOE benefits because the work offered by the accident employer was suitable at no wage loss and the worker had recovered from his minor injuries. [2] At the outset of the hearing, Mr. Abitbol advised that the worker was withdrawing the issue of entitlement for benign positional vertigo. The employer did not object to the removal of this issue. The Vice-Chair granted the worker s request to withdraw this issue. Any attempt to renew the appeal with respect to this issue will be subject to the time limit provisions set out in subsection 125(2) of the Workplace Safety and Insurance Act, 1997 (the WSIA ). [3] Mr. Smolander presented a private investigation report and requested that it be entered into the record. Mr. Smolander indicated that the report was relevant to show that the worker was not in fact injured because he was performing physically demanding activities for another construction company. The report was dated October 30, Mr. Abitbol objected to the report s admissibility. He indicated that he had not received a copy of the report in advance. When asked why the report was not provided earlier, Mr. Smolander replied that it was an oversight. [4] The Tribunal has a strict 3-week policy regarding submission of documents into the record. All documents relevant to an appeal must be provided to the Tribunal 3 weeks in advance of a hearing. In this case, the report was dated October 30, 2013, which means that the report was completed almost two years prior to the Tribunal hearing. In addition, in a letter to the Tribunal, dated November 19, 2013, Mr. Smolander indicated that the private investigator would be attending the hearing and providing testimony regarding the investigation of the worker. Thus, I take it that Mr. Smolander was aware of the existence of this report at about the time that it was prepared, two years ago. Mr. Smolander did not deny he was aware of its existence, but indicated he overlooked to make sure it was in the record. Mr. Smolander had almost two years to provide this report to the worker and to the Tribunal, but he did not do so. In the circumstances, I find Mr. Smolander s reason of oversight in providing the report to the Tribunal and to the worker as unreasonable and I am not persuaded to make an exception to allow the report to be filed into the record. In any event, the private investigator who was the

3 Page: 2 Decision No. 294/13 author of the report was present at the Tribunal hearing to provide testimony about his investigation. Thus, there was no prejudice to the employer by not admitting the report since the evidence of the investigator would be entered through oral testimony and subject to crossquestioning by the worker s representative. (ii) Issues [5] The issues under appeal are as follows: 1. Does the worker have initial entitlement for a head injury and neck strain claimed to have been sustained at work on August 4, 2009? 2. If the worker has initial entitlement, is the worker: (a) entitled to taxi services? (b) entitled to a permanent impairment for a neck strain and head injury? (c) entitled to occipital neuralgia and associated permanent impairment? (d) entitled to CPD or psychotraumatic disability, and associated permanent impairment? (e) entitled to work transition services on the basis that the work provided by the employer was unsuitable? (f) entitled to LOE benefits from August 5, 2009 to November 28, 2011? (iii) Law and policy [6] Since the worker claims injury in 2009, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [7] Specifically, sections 2, 13, 43, 46, and 47 of the WSIA govern the worker s entitlement in this case. [8] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [9] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [10] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #9 Psychotraumatic Disability; Package #33 LOE Benefits benefits prior to December 1, 2010;

4 Page: 3 Decision No. 294/13 Package #37 Reviewing LOE benefits from July 1, 2007 to November 30, 2010; Package #73 Worker Co-operation Obligations decisions prior to February 15, 2013; Package #86 Early & Safe Return to Work with Accident Employer DOA as of January 1, 1998; Package #91- Payment for Health Care Appointments/Reports; Package #95 Heath Care Benefits; Package #96 Travel Expenses/Escort Fees expenses incurred from November 3, 2008 to February 14, 2013; Package # 223 LOE Benefits benefits from December 1, 2010 to July 14, 2011; Package #224 LOE Benefits benefits as of July 15, 2011; Package #230 Work Transition & Suitable Occupation from July 15, 2011 to November 30, 2012; Package #241 Initial Entitlement; Package #260 Chronic Pain Disability decisions prior to February 15, 2013; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. (iv) Analysis [11] The employer's appeal is allowed and initial entitlement is rescinded for the reasons set out below. [12] An accident is defined in section 2(1) to include: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; [13] General entitlement to benefits is governed by section 13: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) 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. [14] The statutory presumption set out in section 13(2) does not apply to an injury by disablement. See, for example, Decisions No. 268 and 42/89. [15] OPM Document No , Definition of Accident, describes a chance event as an identifiable unintended event which causes an injury, an injury itself is not a chance event. The policy defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. [16] OPM Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident,

5 Page: 4 Decision No. 294/13 and compatibility of diagnosis to accident history. OPM Document No provides the following guidelines for determining proof of accident: 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? [17] Having considered the testimonies of the worker and that of the employer s witnesses as well as the documentary evidence on file, I find myself in agreement with Mr. Smolander that the worker does not have initial entitlement for a head and neck injury in relation to a claimed workplace incident on August 4, I make this finding because in my view there was no compatibility of diagnosis to the accident history and there was no personal work-related injury. [18] The worker testified that he had no medical issues prior to 2009 and prior to the accident, he had not seen a doctor since he was a child. The worker stated that he has a grade 12 education and a pipeline inspector s ticket. He has worked in construction since the age of 18 and has been in the union since age 33. The worker stated that after the accident, he developed shooting pain and migraines. His neck is immobile in all directions and he is depressed. Since the accident, the worker has tried various treatment modalities such as physiotherapy, acupuncture, and chiropractic treatments, to no avail. [19] The worker claimed that on August 4, 2009 he was working with a jackhammer when a hose came loose and struck him in the head. There was significant discrepancy between the worker s testimony and the documentary evidence regarding the accident history. There was also significant discrepancy about the accident history in the medical evidence on file. These discrepancies, when considered as a whole, and in connection with the other inconsistencies in the evidence regarding the worker s alleged injuries, led me to conclude that, on the balance of probabilities, there was incompatibility between the diagnosis and accident history and no workrelated injury as claimed by the worker. [20] The worker testified about the day of the alleged accident. The worker stated that he was using a jackhammer when a high-pressurized hose dislodged from and struck him in the back of the head. The worker stated that after the incident he sat down, gathered his thoughts, and tried to continue working by picking up pieces of asphalt. The worker stated that although he continued to work, he had pain in the back of his head. He told the supervisor what had occurred and the supervisor gave him a Tylenol. He then got into his car to go home, but he could not drive and he pulled over and called a friend to take him to the hospital. [21] The worker s account of the accident history on August 4, 2009 to various hospital staff was inconsistent. The worker s documented account of the accident history was also inconsistent from his testimony. In the Emergency Patient Care Record of August 4, 2009, the worker reported that a jackhammer hose hit him in the back of the head and neck and then he struck the front of his head when he walked into a compressor. The worker also reported seeing black spots. By contrast, in the Emergency Triage Record of August 4, 2009, the worker

6 Page: 5 Decision No. 294/13 reported that the jackhammer hose struck the back of his neck and the left side of his head and then he struck his head on a compressor while wearing a helmet. The worker reported dizziness and headaches but no visual changes. By comparison, in another hospital record, called the Emergency Report Chart Copy of August 4, 2009, the worker reported that the hose only struck his left temple. There was no indication of the hose striking the back of his head or his neck in this account. [22] Although the emergency doctor provided a discharge diagnosis of minor head injury, when reviewing the report, it becomes apparent that the physician remarked there was no sign of injury. X-rays were taken of the worker s head and neck and an examination was performed. In the discharge report of August 4, 2009, Dr. S. Onlock indicated that physical exam revealed no distress, the worker s head and neck exam revealed no obvious sign of injury, and x-rays were negative. Thus, except for a noted non-compensable heart condition, the worker had no sign of injury. [23] I find the lack of evidence of an injury to be persuasive evidence that a work-related injury did not occur on August 4, Had the worker been struck by a high-pressurized hose in the back of his head, neck, left temple, or left side of his head, followed by a strike to the front of his head on a compressor, so as to cause dizziness, headaches, and/or black spots, there would likely be some sign of injury or distress on a physical examination. However, as noted by Dr. Onlock, there was none. It is also significant, in my view, that the mechanism of the accident was reported differently by the worker to the various health care professionals that saw him at the hospital on August 4, As noted in the various emergency records, the worker had various accounts of the accident, as follows: he reported a jackhammer hose struck him in the back of the head and neck; he reported a jackhammer hose struck him in the back of the neck and left side of the head; he reported a jackhammer hose struck him only on the left temple; he reported no visual changes to one person, but reported seeing black spots to another person; he reported striking the front of his head on a compressor whereas in testimony he mentioned nothing about hitting the front of his head on a compressor. [24] The worker s account of the accident history also varied in medical reports subsequent to the alleged incident. The worker was seen by Dr. A. Weedon, a chiropractor, on August 19, Dr. Weedon wrote a description of the accident history in the Form 8, as reported to him by the worker, that the compressor hose hit the worker in the front of his head and the worker then again hit his head a second time while moving backwards. This account suggests that the compressor hose struck the front of the worker s head and he was pushed backwards where he struck the back of his head somewhere else. I also note there is no indication of the hose striking the worker s neck in this version of the accident history. This account is also different from the accounts given at the hospital, which was that the worker walked into a compressor unit and struck the front of his head, not the back. Another version of the accident history was provided in a multidisciplinary healthcare assessment, dated November 4, 2009, where the worker reported that that he struck his head on the top of a space where he was putting back a jackhammer and his head and neck were acutely extended.

7 Page: 6 Decision No. 294/13 [25] In yet another version of the accident history, as told to Dr. M. Gawel, a consultant neurologist, the worker stated that the compressor hose knocked him to the ground and he was not sure if he lost consciousness. Another version of the accident history is given to Dr. J. Somerville, on June 20, In this account, the worker reported that the air hose struck him at the base of his neck, on the back, just below his hard hat. The worker reported that the blow knocked him to the ground and he fell on his right side. The worker reported having a bruise at the back of his head and being diagnosed with a closed head injury, which in fact was not the case as per the hospital discharge report of August 4, [26] In the days following the alleged incident, the worker continued to complain of headaches and associated numbness in his fingers. A CT scan of the worker s cervical spine revealed degenerative changes throughout the cervical spine consisting of disc protrusions at all levels. Based on these results, the worker was diagnosed with cervical sprain and radiculopathy. However, I find this diagnosis is not compatible with the accident history. As noted by the emergency doctor on August 4, 2009, the worker was not in distress, investigations were normal, and he had no sign of injury. [27] An MRI of the worker s brain, dated June 19, 2010, revealed non-specific white matter changes, which was attributed to chronic migraines, not to a head injury as claimed by the worker. The MRI report noted no evidence of posttraumatic injury. A follow-up MRI of the worker s brain, performed on June 29, 2011, revealed no evidence of a previous closed head injury. [28] Based on the foregoing evidence, I find that there were significant discrepancies in the accident history and mechanism of injury. I also find there was no evidence of significance that the worker sustained a head injury or a neck injury on August 4, 2009 at the workplace. While I acknowledge that the worker suffered from headaches and cervical pain with radiculopathy, I find that these symptoms were not the result of a workplace accident, as contended by the worker. There was no evidence of injury to the worker on August 4, In my view, the worker s complaints were more likely than not, related to non-compensable conditions of degeneration in his neck and chronic migraines. [29] There was also other evidence that indicated the worker did not sustain the claimed injuries. In this regard, I rely on evidence from the employer that, contrary to the worker s contention that he was too injured to work, the worker was observed to be engaged in physical activities beyond his stated limitations. [30] Three people testified on behalf of the employer. The first individual was a safety coordinator, the second individual was one of the principals of the employer, and the third individual was a private investigator who observed the worker. All three individuals testified seeing the worker working on various other construction sites and performing heavy physical duties. [31] The safety coordinator stated that while working with at a construction site in September 2013, he saw the worker performing duties such as carrying, cutting, and installing pipes, using a 500 pound jumping jack to pack material, carrying a 100 pound generator for approximately 15 meters; and placing a trench box. The safety coordinator stated that the saw the worker perform these activities over a two-week period and the worker was not in any distress while performing such activities.

8 Page: 7 Decision No. 294/13 [32] The principal of the employer testified that he saw the worker in March/April 2010 at a construction site. The worker was getting out of a truck with a supervisor and walking back to the work site. On another occasion, he saw the worker digging around a valve box, shoveling, lifting pipe, moving material, and using a saw to cut metal. The worker appeared in no distress while performing these duties. The principal stated that he went to say hello to the worker, but the worker introduced himself using a different name. On a third occasion, the principal saw the worker in September/October 2013 at another construction site and the worker working as a general labourer three days per week, performing physical duties. [33] The private investigator stated that he was retained by the employer in October 2013 to observe the worker s activities. He observed the worker at a construction site over a two-day period. He saw the worker work for up to five hours each day. The worker performed activities such as lifting lumber consisting of 2x4 planks, laying 12-foot tubes, using a circular saw to cut tubes, and pulling a cord with his left hand. The investigator stated that the worker did not appear to be in any distress while performing his work duties. [34] For his part, the worker s testimony was that he attempted to work at various jobs after the accident, but he had to stop each time because he could not continue to work, and he could not perform physical work because he developed headaches. The worker testified that he only performed light duties such as holding a stick for a surveyor and jotting down elevations. With respect to his job in September 2013, the worker stated that he only performed light duties such as digging a few inches to find a shut-off valve. The worker stated that the testimony of the safety manager was not true and he denied the statements made by the employer s witnesses regarding what they had seen. [35] In my view, the worker s testimony that he only performed light duties was not consistent with the preponderance of the evidence. It was not just one person that observed the worker performing heavy physical duties, but three individuals. The safety manager, the principal, and the investigator had all witnessed the worker preforming heavy physical duties with no distress over a period of several days at various points in time at various construction sites. Thus, I place more weight on the testimonies of those individuals over the worker s denials. [36] The worker s testimony was also inconsistent with evidence on file from another employer. In Board Memorandum No. 105, dated January 10, 2012, the Claims Adjudicator spoke with another employer who stated that the worker performed work such as tying pipe to an excavator, helping guide pipe into a trench, mixing cement, putting in valves and tightening bolts, picking up material, and cleaning up. The worker never indicated that he had difficulty performing any of any aspect of his duties. The worker s job with that employer was terminated because the worker began disregarding the supervisor s orders. There was no indication that the worker s claimed injuries were the cause of him ceasing work for that employer. By contrast, the worker denied what this employer had reported to the Claims Adjudicator. The worker stated that he could not perform his job duties because of his injuries and he stopped work because of his injuries. [37] Given the numerous inconsistencies in the worker s account of the accident history, and the numerous inconsistencies in the worker s account of his ability to work following the alleged incident, I found the worker s testimony was not credible. Given the incompatibility of the diagnosis to the inconsistent accident history and the lack of evidence of a head and neck injury, I find that, on the balance of probabilities, the worker did not sustain a work-related injury on

9 Page: 8 Decision No. 294/13 August 4, Thus, initial entitlement for the August 4, 2009 accident is rescinded. Since I have found the worker does not have initial entitlement for the accident, it is not necessary for me to consider the worker s appeal regarding ongoing entitlement.

10 Page: 9 Decision No. 294/13 DISPOSITION [38] The employer s appeal is allowed. The worker does not have initial entitlement for a work-related accident on August 4, [39] The issue of entitlement for benign positional vertigo and associated permanent impairment is withdrawn. Any attempt to renew the appeal with respect to this issue will be subject to the time limit provisions set out in subsection 125(2) of the WSIA. DATED: May 14, 2015 SIGNED: S. Darvish