WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1180/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1180/15 BEFORE: S. J. Sutherland : Vice-Chair J. Blogg : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: June 8, 2015 at Toronto Oral DATE OF DECISION: June 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1330 DECISION UNDER APPEAL: Acting Appeals Resolution Officer, L. Cirillo, dated June 1, 2012 APPEARANCES: For the worker: For the employer: Interpreter: B. Hughes, Legal Aid The employer did not take part in the proceeding T. Nguyen, an interpreter in the Vietnamese language 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. 1180/15 REASONS (i) Introduction [1] The worker appealed from a decision of the Acting Appeals Resolution Officer, L. Cirillo, dated June 1, In that decision, the Acting Appeals Resolution Officer concluded that proof of accident had not been established and denied the worker entitlement to benefits for a back injury which the worker states he sustained at work in April (ii) Issues [2] The worker is seeking initial entitlement to benefits for a low back injury which he states resulted from an incident that happened at work on or about April (iii) Background [3] The following are the basic facts. [4] The employer manufactures truck bodies. [5] The materials indicate that the now 42-year-old worker began working for the accident employer, as an assembler, in October In his Report of Injury, which was dated August 4, 2010, the worker said that he injured his upper and lower back, as well as his right hip, when he pulled a skid of boxes that weighed about 500 pounds. He gave the date of injury as On or about April He stated that he did not think the injury was serious but he consulted his family physician, Dr. A. Nguyen, on Saturday and reported the injury to his supervisor on Monday. [6] The employer s Report of Injury was dated July 23, The Report contained the following information: The worker reported an injury on July 12, 2010; The injury occurred gradually, over time; The worker asked to leave on July 9, 2010, to attend a doctor s appointment; July 9, 2010 was the worker s last day at work; The worker met his supervisor and the plant manager on July 12 and gave them doctor s notes dated May 22, and July 9, 2010; Each note said that the worker should be off work for two to three weeks and be reassessed before returning; On July 20, 2010, the worker brought in a doctor s note that said he was unable to return to work; The note also advised the employer to file a claim with the Board for an injury that happened in 2008; The employer s records showed that the worker asked for time off in 2008 and 2009 for illness ; and The worker did not report the happening of an accident in 2008 or 2009.

3 Page: 2 Decision No. 1180/15 [7] The first medical report on the worker s file was prepared by Dr. P. Muller, a neurosurgeon, on August 26, Dr. Muller recorded: He developed low back and left buttock pain and was out of work as a consequence for several months. He returned to work and was able to do so for 3 or 4 weeks and then was laid off. He has not been working for the last 6 months or so. [8] On December 8, 2008, Dr. Muller reported that the worker had an MRI which showed degenerative changes at L4-5 and L5-S1 but there were no disc ruptures or compressed nerve roots. [9] A Claims Adjudicator spoke with the worker, with the assistance of a Vietnamese interpreter, on September 9, The Claims Adjudicator recorded: [He] was pulling a cart weighing about lbs. & hurt lower back as the cart wheel got caught in the rail & worker had to exert more force to pull. Worker recalls this incident took place on a Friday. DOR [date of report] On Monday (after the weekend) in March 2008 to Mr. B (Boss) and to foreman - does not know foreman s name. DOM [date of medical] Mar/Apr 2008 with FD [family doctor] Dr. Nguyen. He claims he reported the injury at work to FD. Diagnosis - swelling & advise no return to work 3 weeks. Had an x-ray in swelling. 10Jul10 FD told worker to claim with WSIB after scan showed serious problem. The more serious back issues did not show up until Jul2010. The worker relates it to his regular duties. LT - 3 weeks in Mar/Apr Return to work to regular duties & continued regular duties until laid off work on 12Jul10. Current RTW status - remains off work. Tx [treatment] & current - yoga and medication. Reason for not claiming in his back was fine. Claiming now as he has significant pain. Difficulty in walking & climbing into bed. EA [Eligibility Adjudicator] inquired how current condition related to DOI. Increase in pain/worse condition. Not able to relate current condition to DOI. Stated FD told him that his condition worsened because he works too hard. Advise 6 month time frame to claim for benefits expired in October Advised of & explained decision & option to appeal in writing within 6 months. Advised first decision letter will be in English, second letter will be sent at a later date as will be translated into Vietnamese. [10] The Claims Adjudicator denied the worker s claim, on September 9, The reason for the denial was that the worker did not file a claim within six months of the happening of the injury. The worker appealed from that decision on September 17, [11] There are no medical reports on the worker s file between December 8, 2008 and October 5, 2010, when Dr. Nguyen submitted a Health Professional s Report. In that report, Dr. Nguyen said the worker was in severe pain, can hardly sit/walk comfortably. He reported that he first treated the worker for low back pain on April 12, He stated that the worker had a sudden increase in back pain that radiated down his left leg, on July 10, Dr. Nguyen s diagnoses were lumbago disc bulging at L4-L5, and L5-S1 L [left] sciatica.

4 Page: 3 Decision No. 1180/15 [12] The Panel has not summarized the medical reports beyond that date because they do not assist in determining whether the worker was injured in the workplace in April [13] An Eligibility Adjudicator reviewed the denial of the worker s claim, on June 28, Given that there was a significant language barrier, the Eligibility Adjudicator reopened the case but confirmed the denial because s/he was unable to establish proof of accident and all immediates were significantly delayed. [14] As was noted in section (i), Acting Appeals Resolution Officer Cirillo denied the worker s appeal in her decision dated June 1, [15] The worker has appealed to the Tribunal. (iv) Law and policy [16] Since the worker claimed to be injured in 2008, 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. [17] An accident is defined in section 2(1) to include: (a) a willful 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; [18] 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. [19] The statutory presumption set out in section 13(2) does not apply to an injury by disablement. See, for example, Decision Nos. 268 and 42/89. [20] 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 [21] 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. [22] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, apply to the subject matter of this appeal: Package #1 - Initial Entitlement Package #300 - Decision Making/Benefit of Doubt/Merits and Justice

5 Page: 4 Decision No. 1180/15 [23] The Panel considered these policies as necessary in deciding the issues in this appeal, in particular Operational Policy Manual, Document No , Definition of Accident, which 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. [24] Operational Policy Manual, Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident, 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, (v) 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? The worker's testimony [25] The worker began his testimony by confirming his age. He said he was born in Vietnam and immigrated to Canada in He has a wife and a 5½-year-old daughter here. He stated that the accident employer produced containers for trucks. As he recalled, he began working for the accident employer, 40 hours per week, in April or May [26] It was the worker s evidence that he did not have any low back problems prior to the injury from which this appeal arises. In particular, he did not seek medical attention for low back pain and his back did not affect his ability to perform his work duties. [27] The worker testified that he was injured on a Friday afternoon in either March or April He was trying to finish his work and prepare for Monday morning. He pulled a truck that had four little wheels. The load on the truck weighed between 500 and 600 pounds. The floor was old and the wheels got stuck. He felt a sharp pain in his low back, at his waist, as he pulled. He stopped working for a few minutes, and then kept on. He did not tell his supervisor about the injury that day. He saw Dr. Nguyen on Saturday morning because his back was very painful. The pain went into his legs and he could not stand. Dr. Nguyen prescribed medication and sent him for an x-ray. He told the worker to rest until his back got better and then to return to work. On Monday morning he told his supervisor and another person about the injury. They gave him a piece of paper so he could collect Employment Insurance benefits. They told him not to tell anyone at work about the injury. He did not know about workers compensation benefits and the employer did not tell him about that service. He went home, applied for Employment Insurance benefits and was approved. He was off work until his Employment Insurance benefits expired. He did not work anywhere else during that time but he did have treatment.

6 Page: 5 Decision No. 1180/15 [28] The worker stated that he returned to work when the Employment Insurance benefits ran out. His back had not returned to its pre-injury state. His buttocks, hips, and feet were numb but the medication he was taking helped with the pain and he was able to work. He went back to his pre-injury job but he had help with pushing, pulling and carrying. The pain got worse after three or four months and it was so severe he had trouble walking, so he stopped working. [29] The worker said that the injury was reported in 2010 because Dr. Nguyen wrote a note for him to take to work and the employer made the claim. Neither Dr. Nguyen nor the employer advised him to make a claim in [30] The worker testified that he has been at home since He spends a lot of time resting. He helps his wife with the cooking and sweeps the floor, but not a lot. He would like to find a job but is not able to because of the pain. He was still taking medication at the time of the hearing but was not having any treatment because he cannot afford to pay for it. (vi) Mr. Hughes submissions [31] Mr. Hughes submitted that the worker had a compensable accident in the workplace. There was proof of accident and the low back injury sustained by the worker was compatible with the mechanics of the accident. He reviewed the worker s testimony with respect to the happening of the accident, Dr. Nguyen s clinical notes which showed no consultations with respect to the worker s back prior to the accident and regular consultations afterwards, and the worker s pay stubs which showed he worked 40 hours per week prior to the claimed accident and his lost time afterwards. [32] Mr. Hughes had pay stubs, copies of which were not in the materials before the Panel, which showed that the worker started working for the employer in April or May 2007 on a contract basis. Mr. Hughes stated these indicated the worker worked for more than a year without any issues. He said the worker was effectively a general labourer and he often moved skids of items. [33] Mr. Hughes went through Dr. Nguyen s clinical notes in detail and submitted that there was a clear pattern of ongoing back pain and treatment in the form of medication after the claimed accident. He also reviewed the worker s pay stubs in detail. With respect to the delay in reporting, Mr. Hughes submitted that the worker was not aware that compensation benefits were available. Neither Dr. Nguyen nor the employer told him to report the injury. [34] Mr. Hughes directed the attention of the Panel members to the Report of Injury submitted by the employer on July 23, He noted, in particular, the employer s claim that the worker did not display any symptoms in the workplace and did not advise his supervisor of any problems prior to July 9, The worker left work on July 9, 2010 at 2 PM for a doctor s appointment. On July 12, 2010, the worker provided two notes that said he should be off work and rest for between two and three weeks. On July 20, 2010, the worker produced a note that said the employer should file a compensation claim for a 2008 workplace injury. Mr. Hughes asked that the Panel members prefer the worker s testimony over the statements made by the employer. [35] Mr. Hughes made further submissions with respect to the compatibility of the worker s back condition with the mechanics of injury. He commented that the worker was only 34 years old when he was injured so it was unlikely that any degenerative changes in his back were significant. He again reviewed the medical evidence and the worker s description of the

7 Page: 6 Decision No. 1180/15 happening of the accident. He submitted that the weight of the skid combined with the worker s effort in pulling it caused a disc injury in the worker s low back. He stated, further, that the fact Dr. Muller said in 2008 that the worker had a ruptured disc indicated there had been trauma to the worker s back. He went on to say that the 2008 injury has never resolved entirely. [36] Mr. Hughes summarized the worker s testimony, Dr. Nguyen s clinical notes, and the worker s pay stubs, which he said demonstrated that the worker was injured at work on April 11, 2008 and he has never recovered from that injury. He asked that the Panel allow the worker s claim and refer the matter of the worker s entitlement to benefits to the Board for further adjudication. (vii) Analysis [37] The issue the Panel members are asked to decide is whether the evidence indicates, on a balance of probabilities, that the worker injured his back in the workplace in April [38] Although the worker was a credible and sympathetic witness, the documentary evidence and the worker s testimony are replete with contradictions. We have summarized some of these below: as was noted in section (iii), on his Report of Injury, the worker said that he injured his upper and lower back and right hip. Dr. Muller said, on August 26, 2008, that the worker injured his low back and left buttock. When he testified before this Panel, the worker said that he injured only his low back but when asked to show the area of injury, the worker indicated the middle of his back at waist level; the worker described a specific incident in his Report of Injury and in his testimony. The employer s Report of Injury suggested a disablement that happened over time; the worker said that he advised his supervisor of the April 2008 accident on the following Monday. The employer s Report said it did not know of an injury until July 2010; reports with respect to the weight of the cart the worker was purportedly pulling when he injured his back have varied from 470 to 600 pounds; the cart wheel either got stuck in a rail as the worker advised a Claims Adjudicator on September 9, 2010, or simply was stuck on the floor as the worker testified before this Panel; the worker testified that he had no low back problems prior to April In his clinical note dated April 17, 2008, Dr. Nguyen recorded that the worker's back pain had persisted for two years during which time it increased and decreased. The worker had a CT scan of his lumbar spine on May 9, The radiologist recorded that the reason for the scan was a two-year history of back pain, particularly severe on the left side ; and Dr. Nguyen s clinical note dated April 12, 2008 said the worker developed back pain when pulling a heavy object the previous day. Dr. Nguyen did not say that this happened at work and he did not submit a Health Professional s Report to the Board.

8 Page: 7 Decision No. 1180/15 [39] According to the website for the College of Physicians and Surgeons of Ontario, Dr. Nguyen graduated from the University of Toronto in The Panel members are satisfied that Dr. Nguyen is aware of his reporting responsibilities and would have submitted a report to the Board in April 2008 had the worker said he sustained a workplace injury. [40] As Mr. Hughes noted when he made his submissions, Dr. Nguyen s clinical notes show that the worker sought medical attention for low back pain five times in 2008 and twice in He has had frequent medical care since [41] Given the contradictory evidence with respect to the area of injury; the employer s statement that it did not know of an injury until 2010; the contradictions between the worker s testimony and the medical documents with respect to when the worker s low back pain began; and the fact that Dr. Nguyen did not submit a Health Professional s Report to the Board in April 2008, the Panel is unable to establish, on a balance of probabilities, that the worker injured his back in the workplace in April 2008.

9 Page: 8 Decision No. 1180/15 DISPOSITION [42] The worker's appeal is denied. [43] The worker has not established on a balance of probabilities that he was injured in the workplace on April 11, DATED: June 17, 2015 SIGNED: S. J. Sutherland, J. Blogg, K. Hoskin