WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 437/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 437/06 BEFORE: I. Welton : Vice-Chair B. Wheeler : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: December 9, 2008 at Toronto Oral DATE OF DECISION: April 15, 2009 NEUTRAL CITATION: 2009 ONWSIAT 947 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 10, 2003 APPEARANCES: For the worker: For the employer: Self-Represented Mr. Douglas Paolini, Office of the Employer Adviser 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. 437/06 REASONS (i) Introduction [1] The worker appeals a decision of D. McParland, Appeals Resolution Officer (ARO), dated November 10, 2003, which denied initial entitlement for a back injury claimed to have occurred at work on June 16, (ii) Background [2] The then 44-year-old worker was employed as a quality assurance inspector by an auto parts manufacturer on June 16, 2000, when he claimed that he sustained a back injury while lifting and moving automobile frames. The worker had commenced employment with the accident employer two days earlier, on June 14, A WSIB claim was not established until May 2002, when the Board received a letter from the worker s representative at that time indicating that the worker had sustained an earlier work-related injury to the back, bilateral shoulders and neck. [3] The worker submitted a Worker s Report of Injury (Form 6), dated May 28, 2002, indicating that he had reported his injury to his supervisor on June 19, 2000, and on several subsequent occasions. The worker described his injury as involving his back from neck to bottom and stated that he had first sought medical treatment for the injury on June 20, When contacted by the Board, the accident employer indicated that the worker had been employed for less than three months and had failed to complete his probation period successfully, due to poor work performance. The employer denied any knowledge of an injury until the worker raised this issue for the first time during an unjust dismissal case that he brought against the employer in [4] Medical reports included in the Case Record indicate that the worker had seen Dr. Vincent Mak, a specialist in rheumatology and internal medicine, on May 25, 2000, following a referral earlier in the year by Dr. Michael Kirzner, the worker s family physician. Dr. Mak noted that the worker complained of intermittent migratory musculoskeletal pain over the past two years. The worker had seen other physicians in the past and had been prescribed painkillers, but without benefit. The worker s symptoms were described by Dr. Mak as highly variable and unpredictable, with pain over one area for one to two days and then pain free. Dr. Mak noted that the worker showed no evidence of inflammatory arthropathy or fibromyalgia, and concluded that the worker s pain is not clearly explained. [5] The worker again saw Dr. Mak on September 29, Dr. Mak noted that the worker had twice failed to appear for scheduled appointments since his earlier visit. The doctor indicated that the worker continued to experience episodes of migratory pain, with the neck appearing to be the dominant site. The worker s musculoskeletal examination was described as completely normal, with no evidence of spinal tenderness. Dr. Mak concluded that the worker had undiagnosable MSK pain [with a] high likelihood of functional pain disorder. [6] On September 6, 2001, Dr. Kirzner wrote a to whom it may concern note indicating the following:

3 Page: 2 Decision No. 437/06 [The worker] has had a very difficult year with chronic and severe back and body pains and other somatic concerns. He has required multiple specialist referrals and has undergone numerous therapies. I do believe that his condition definitely worsened his work performance. [7] On November 22, 2001, Dr. Mak again saw the worker on a referral from Dr. Kirzner. Dr. Mak noted that the worker remained the same, with intermittent musculoskeletal pain, now exclusively over his neck. On physical examination, both cervical and lumbar spine mobility were described as normal. The doctor noted that the episodic neck pain remained undiagnosed and indicated that the worker may have functional pain disorder. [8] Dr. Mak s findings remained quite similar at a further visit on May 3, The doctor noted that the worker still experienced upper back pain periodically, now only mildly. Dr. Mak indicated that the worker s musculoskeletal pain remained undiagnosed, but provided an assessment of probable mechanical upper back pain from cervical DDD. On May 7, 2002, Dr. Mak signed a general note stating that the worker has a history of pain, mostly over his neck and upper back and that the pain seemed to develop after he was doing heavy lifting during his previous work. [9] On August 23, 2002, the worker was notified by the WSIB that his claim for a workplace injury was denied on the basis that there was no evidence to support that a workplace accident had occurred. A WSIB Claims Investigator had been unable to confirm an injury from the worker s supervisors or co-workers, medical reports indicated that the worker was suffering from muscular pain of an undisclosed nature prior to commencing employment with the accident employer and the worker s current problems were identified as related to cervical degenerative disc disease, not considered to be work-related. [10] A report by Dr. Mak, dated March 5, 2003, indicated that the worker s pain was now more typical of that associated with mechanical back pain, with probable cervical and lumbar strain. Dr. Mak noted that x-rays taken on November 21, 2002, showed the cervical spine as normal while the lumbar spine revealed mild degenerative changes at L2-3 and L3-4. [11] The ARO s decision of November 10, 2003 denied initial entitlement for a back injury, concluding that the evidence failed to establish proof of accident. In particular, the ARO noted that there was evidence of medical treatment for undiagnosed muscular pain at least as early as November 1999, and no support in medical reports by treating physicians or from supervisors or co-workers indicating that a work-related injury had occurred. The ARO also noted that the worker had continued to perform his regular duties with the accident employer from late June until early September 2000, when his employment was terminated. [12] On April 24, 2006, in a general to whom it may concern letter, Dr. Anthony Mekdeci provided a brief history of his treatment of the worker for his back condition. Dr. Mekdeci described himself as a general practitioner, who had first seen the worker in April 2003, when the worker complained of low back pain which had started in June 2000 and which the worker attributed to lifting and shifting of heavy materials at work. Dr. Mekdeci stated that since then the worker s back pain has continued non-stop, with the worker taking various prescribed medications for his condition during this time including Vioxx, Celebrex, Motrin, and Tylenol (#2 and #3). Dr. Mekdeci stated that the worker is permanently ill with severe lumbago

4 Page: 3 Decision No. 437/06 causing low back pain. It will never be cured. In earlier handwritten notes, dated January 24, 2005, and June 14, 2005, Dr. Mekdeci had indicated that he was also treating the worker for severe hypothyroidism and cholesterol. [13] On April 25, 2006, Dr. Steven Rothman indicated that he had been the worker s family physician since July 3, Dr. Rothman stated that the worker continued to suffer from back pain that began on June 16, 2000, while the worker was moving a heavy object at work. After describing the various medications prescribed for the worker, Dr. Rothman stated that the worker has chronic mechanical low back pain with intermittent exacerbations and because of this had been unable to work in a job involving physical labour. In an earlier letter, dated January 25, 2005, Dr. Rothman described the worker as having osteoarthritis and chronic low back pain, with the pain worse during the winter season. [14] The worker was seen by Dr. Shelly Dunne, a specialist in rheumatology and internal medicine, on December 18, 2006, on a referral from Dr. Mekdeci. Dr. Dunne noted that the worker had been experiencing back pain for approximately six years and had earlier been diagnosed with degenerative disease of the lumbar spine. Dr. Dunne noted that the worker had quite prolonged mechanical low back pain. The doctor was not optimistic that [the worker] will have full recovery, but felt strongly that physiotherapy treatment was necessary. [15] On May 31, 2007, Dr. Dunne wrote that the worker had experienced constant pain since his original injury in June 2000 and that his ability to work has been substantially affected by this injury. Dr. Dunne concluded that the worker s back condition was chronic and likely to deteriorate further over time, indicating that she was not optimistic that he will ever improve enough to return to any type of employment. [16] On June 12, 2007, Dr. Mekdeci wrote to WSIAT recounting the details of the worker s injury in June 2000 as they were described to him by the worker. The doctor explained that at the time of his first examination of the worker in April 2003 the worker complained of extreme lumbago pain in his lower back and had continued to do so on each of his subsequent visits. Dr. Mekdeci provided his opinion that the lumbago pain derives from disc problems in his lower back (from L3 to S1 inclusive) which will never improve and his severe pains causing (sic) severe chronic insomnia. [17] On February 27, 2008, Dr. Mekdeci provided a copy of a CT scan of the worker s lumbar spine taken on July 31, It showed a small central bulging disc at the L5-S1 level, without significant encroachment on the dural sac, and a bulging disc at L4-5. The remainder of the examination was described as normal, without evidence of disc herniation or spinal stenosis. (iii) Issue [18] The issue for this appeal is initial entitlement for a back injury claimed to be work-related and to have occurred on June 16, 2000.

5 Page: 4 Decision No. 437/06 ANALYSIS (i) Law and Policy [19] The worker claims that he was injured in 2000 and, therefore, the provisions of the Workplace Safety and Insurance Act 1997 ( the Act ) are applicable to this appeal. [20] Section 13(1) of the Act provides that a worker who sustains a personal injury by accident arising out of and in the course of employment is entitled to benefits under the insurance plan established by the Act. Section 2(1) of the Act defines an accident 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. [21] The provisions of the Act are supplemented by policies contained in the WSIB Operational Policy Manual (OPM). In accordance with section 126(1) of the Act, the WSIB has identified those policies that are applicable to the subject matter of this appeal and they have been taken into consideration in the analysis that follows. [22] OPM Document No (Definition of an Accident) defines a chance event as an identifiable unintended event which causes an injury. An injury itself is not a chance event. A disablement is defined as including a condition that emerges gradually over time or an unexpected result of working duties. [23] OPM Document No (Adjudicative Process) describes the five point check system used in ruling on initial entitlement to WSIB benefits. An allowable claim must have an employer, a worker, a personal work-related injury, proof of accident, and compatibility of diagnosis to accident or disablement history. If it is not clear that the (injury or disablement) diagnosis is the result of the accident or disablement history described, an opinion is sought from a WSIB Medical Consultant. Points considered by adjudicators when examining proof of accident include: 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? [24] OPM Document No (Accident in the Course of Employment) states that 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. (ii) Findings [25] After completing its consideration of the evidence presented in this case, including the extensive written materials in the Case Record and the testimony of the worker and witnesses, along with the submissions made by the parties, the Panel finds that the evidence fails to establish, on a balance of probabilities, that the worker sustained a work-related back injury on

6 Page: 5 Decision No. 437/06 June 16, As a consequence, the worker s initial entitlement for his back condition is denied. The reasons for the Panel s decision are set out below. [26] In his testimony, the worker explained the duties of his job with the accident employer and how his back injury occurred. The worker stated that he commenced the job on June 14, He stated that his past work experience was as a quality assurance inspector and production supervisor, and his expectation when hired was that he would be working in a similar capacity, measuring parts to ensure conformity with blueprint specifications and adherence to quality control standards. [27] The worker testified that on his first day he was asked to measure auto parts for the first 90 minutes or so of his shift, and then was assigned for the remainder of his shift to moving and re-crating the parts to prepare them for shipment. This pattern was again followed on his second and subsequent days. The parts in question were described as frames and laterals, estimated by the worker to weigh approximately 60 pounds each. [28] The worker testified that he had never done this type of lifting work before and by the third day he started to feel back pain, which he mentioned to his supervisor when he was leaving work on Friday June 16, The worker stated that the pain extended from his low back up to his neck, and he took Tylenol for relief. The worker stated that on Monday June 19, 2000, he again told his supervisor about his pain and made an appointment for the following day to see his family doctor, Dr. Kirzner. [29] The worker testified that at his visit to Dr. Kirzner on June 20, 2000, he informed the doctor about his back and body pain and was given a doctor s note to support his time off work. The worker stated that the doctor told him he would arrange a referral to a specialist, Dr. Mak. The worker stated that the appointment was booked, during this visit, for June 27, 2000, but the worker subsequently missed that appointment and it was later re-arranged for a new date. [30] The worker testified that he continued to work on the same job, since he was concerned about losing the job, but the back pain increased significantly over the next two months, until he was eventually given only quality assurance duties, without being required to move the frames and laterals. The worker continued to work at the accident employer up to September 8, 2000, when he was terminated. The worker stated that he felt he was unjustly terminated and he later brought a wrongful dismissal case at Small Claims Court. He stated that he had not thought of filing a claim with the WSIB until he was asked about this during the proceedings at Small Claims Court. A claim was filed by his then representative, on May 9, [31] The Panel reviewed the medical reports and related documentation included in the Case Record in some detail. Dr. Kirzner s clinical notes for at least part of the year 2000 are reproduced in the Case Record, although they are very difficult to read. In a Form 8 completed on February 6, 2002, Dr. Kirzner indicated a date of first treatment of November 30, The worker s history of injury was described as a vague increased onset of pain with a diagnosis of myalgia n.y.d. In response to a request by a WSIB Claims Investigator that was noted in the latter s report of June 20, 2002, Dr. Kirzner subsequently submitted a handwritten letter in which

7 Page: 6 Decision No. 437/06 he stated that the worker had ongoing muscle pains of indistinct origin which predated the worker s first visit to the doctor s office in November [32] The first report in the Case Record by Dr. Vincent Mak, a specialist in rheumatology and internal medicine, is dated May 25, He indicates that the worker was referred to him by Dr. Kirzner for musculoskeletal (MSK) pain and that the worker complained of intermittent migratory MSK pain for the last two years. Dr. Mak describes the worker s history as somewhat vague and his symptoms as highly variable and unpredictable. The doctor notes that the worker had seen other doctors in the past and was prescribed various painkillers, but without benefit. Dr. Mak concludes that the worker s pain is not clearly explained, with no evidence found of inflammatory arthropathy, PMR or fibromyalgia. The doctor recommended further blood work and possibly a bone scan. [33] The next report by Dr. Mak is dated September 29, Dr. Mak notes that the worker arrived unannounced and demanding to be seen, after missing two previous scheduled appointments and declining offers to reschedule. Dr. Mak describes the worker s symptoms as including episodes of migratory pain up to four times per month, usually in one region at a time, with the neck as the dominant site. The physical findings from an MSK exam are noted as completely normal. The doctor s assessment is stated as undiagnosable MSK pain. high likelihood of functional pain disorder, with Vioxx prescribed. [34] Dr. Mak saw the worker again on November 22, 2001, at Dr. Kirzner s request. Again, the worker s problems are described as intermittent migratory MSK pain not yet diagnosed. Regarding the worker s current symptoms, Dr. Mak states he has remained the same, with intermittent (unpredictable frequency) pain, now exclusively over her (sic) neck. The doctor describes the cervical spine as normally mobile and non-tender, lumbar spine mobility as normal, with no thoracic tenderness, and suggests that the worker may have functional pain disorder. [35] On May 3, 2002, Dr. Mak notes that the worker s intermittent migratory MSK pain remains undiagnosed, with current symptoms including mild pain over the upper back. The doctor provides an assessment of probable mechanical upper back pain from cervical DDD. On May 7, 2002, in a short to whom it may concern letter, Dr. Mak, after indicating that the worker has a history of pain, mostly over the neck and upper back, states that the pain seemed to develop after he was doing heavy lifting during his previous work. This is the first reference in any of Dr. Mak s reports to a possible relationship between the worker s pain and his employment duties. [36] Dr. Mak saw the worker for several more visits during the remainder of 2002 and into 2003, noting that the x-rays taken in November 2002 showed evidence of mild degenerative changes in the lumbar spine and concluding that the worker s rheumatic problems reflected probable mechanical cervical and lumbar strain with intermittent nocturnal exacerbation. In another general to whom it may concern letter, dated February 12, 2004, Dr. Mak confirmed that the worker had been suffering from back pain which started after he was doing heavy lifting and shifting during his work at [the accident employer]. However, the Panel notes that in Dr. Mak s medical reports written in 2000 and 2001 there is no indication that the worker s pain symptoms could possibly be related to a work injury.

8 Page: 7 Decision No. 437/06 [37] During his testimony before the Panel, and in several sworn affidavits included in the Case Record, the worker took the position that a number of the medical documents on file generated by Dr. Kirzner and Dr. Mak, as well as the worker s claims history for the year 2000, recorded on the Ministry of Health database, had been falsified or tampered with. In particular, the worker denied that he had visited Dr. Mak on May 25, 2000, or that blood tests had been performed on that date, and denied that he had seen Dr. Kirzner before June 20, 2000, with complaints relating to neck, back or other muscular pains. [38] The worker claimed that his first visit to Dr. Mak did not occur until September 28, 2000, and that his visit to Dr. Kirzner on June 20, 2000, was for back and body pain. The worker alleged that the medical reports which appeared to show otherwise had been falsified and the Ministry of Health database had been manipulated in an attempt to make it appear consistent with these falsified reports. [39] In the worker s view, the perceived lack of congruity between the medical reports and/or clinical notes and the diagnostic codes assigned in the Ministry of Health database for the corresponding medical treatments represents evidence of tampering. The worker appears to see the creation of a false medical history as part of an attempt to suggest that his back and related problems began prior to his joining the accident employer. Why Dr. Mak and Dr. Kirzner could conceivably have an interest in doing this is not clear to the Panel, but the worker s allegations are tantamount to an accusation that both doctors somehow engaged in a conspiracy to systematically falsify the worker s medical records. [40] The worker called three witnesses to testify on his behalf. They will be identified simply as A, B and C in the discussion that follows. Each of the three also provided written statements, supportive of their testimony, which are included in the Case Record. Witness A, a university graduate with a background in physics, mathematics and computer science, stated that he had known the worker for two years. A stated that he had researched the medical software used by doctors to file their patients treatment records and to bill OHIP. He confirmed that, in his view, this software permitted the creation or modification of records for dates in the past. A also indicated in his written statement that he had compared several of the medical reports in the Case Record with the corresponding database entries and found a great discrepancy in the information recorded. However, in response to questions from the Panel, A confirmed that he did not have a personal familiarity with the specific operation or features of the Ministry of Health database. [41] Both Witness A (in his written statement) and the worker drew particular attention to the visits by the worker to Dr. Kirzner on April 18, 2000, and June 20, 2000, and the visits to Dr. Mak on May 25, 2000, and September 28, 2000, as revealing evidence of records tampering or discrepancies. The Panel has reviewed the information in the Case Record for these dates in some detail. On three of these dates, the Panel observes that the diagnostic codes assigned fall within the category labelled Signs/symptoms not yet diag. Musculoskeletal System Leg Cramps. On the remaining date, the visit to Dr. Kirzner on June 20, 2000, the code assigned is Signs/symptoms not yet diag.- Digestive System Anorexia, Nausea. Taken at face value, in the Panel s view, these codes do not appear out of keeping with the medical reports in question, although the reference to leg cramps seems somewhat puzzling, since these are not specifically mentioned in the corresponding medical reports.

9 Page: 8 Decision No. 437/06 [42] The Panel does not have a detailed familiarity with the Ministry s diagnostic code system and so is not able to make an informed judgment regarding the correct code for a particular medical visit. However, it seems to the Panel that, by their nature, the codes themselves represent broad categories of treatment and cannot be expected to reflect the same degree of specificity as the medical reports on which they are based. For this reason, given a choice between reliance on a medical report (and/or clinical notes) on the one hand, or a general diagnostic code on the other, as providing the most appropriate and useful description of a medical treatment procedure, the Panel has a clear preference for the medical report or notes as the best informational source. [43] The worker s expressed concerns regarding perceived differences between the medical reports themselves and the assigned codes fail to persuade the Panel that this is somehow an indication that the reports have been falsified. The differences may instead simply reflect the Panel s (and perhaps the worker s) lack of detailed knowledge regarding the coding system itself. The Panel is also not persuaded by the testimony of Witness A that it is possible to amend the Ministry s data records on a retroactive basis. Whatever the truth of the matter, this in itself does not constitute evidence that the records were actually modified in the manner described. [44] The worker failed to provide a coherent explanation as to the possible motives of the two doctors for falsifying records, despite several attempts by the Panel and the employer s representative to question the worker on this matter. The Panel finds no evidence, and no reason to believe, that Dr. Mak and Dr. Kirzner conspired to falsify the medical records in question. [45] The Panel is satisfied that the medical reports and clinical notes submitted by Dr. Kirzner and Dr. Mak provide a reliable record of the dates and nature of treatments provided by both doctors from late 1999 onwards. In particular, the Panel finds that the worker sought and received treatment from Dr. Kirzner prior to the end of 1999 for a musculoskeletal pain condition, was subsequently referred by Dr. Kirzner to Dr. Mak, and was examined by Dr. Mak on May 25, 2000 that is, prior to commencement of the worker s employment with the accident employer on June 14, 2000, and to his claimed work-related injury of June 16, [46] The existence of a pre-existing medical condition does not, of course, preclude the possibility that the worker could have aggravated his pre-existing condition or suffered a new injury on June 16, However, there is no corroboration that a new work-related injury or aggravation occurred at that time in the documentation included in the Case Record. The worker did not pursue a WSIB claim until almost two years later. [47] The WSIB Claims Investigator s report, dated June 20, 2002, indicates that the general manager for the accident employer stated that the worker made no complaints of an injury between June and September 2000, at which time the worker was terminated for what the accident employer claimed was poor work performance. In fact, the Claims Investigator reported that the general manager stated that the worker did not mention his alleged work-related injury until much later, at the time of the worker s hearing in Small Claims Court in The Claims Investigator also reported that the worker s former supervisor and shop manager had confirmed that no injury was reported, and a co-worker who was interviewed also denied knowledge of any injury suffered by the worker.

10 Page: 9 Decision No. 437/06 [48] The Panel notes that, following the worker s initial assessment by Dr. Mak on May 25, 2000, when the worker was described as having unexplained migrating MSK pain affecting various areas of his body, the worker next saw Dr. Mak on September 29, 2000 that is, after he had ceased employment with the accident employer. The worker s physical problems and symptoms on that visit were described in similar terms to those of the earlier visit, with the neck mentioned as the dominant site, but again with no specific diagnosis. [49] The third visit to Dr. Mak occurred on November 22, 2001, when Dr. Mak stated that the worker s symptoms had remained the same, with intermittent pain now almost exclusively over the neck. Dr. Mak was still unable to provide a diagnosis, although he indicated functional pain disorder as a possibility. The Panel notes that throughout these visits to Dr. Mak, over a period of 18 months, including the entire period of the worker s employment with the accident employer, there is no mention of a specific work-related injury or even a potential work-related cause for the worker s symptoms. [50] The worker testified that he saw Dr. Kirzner on June 20, 2000, specifically for his back pain arising out of the June 16, 2000 injury. The Case Record, in fact, includes a short handwritten note signed by Dr. Kirzner and stating that the worker needed time off work for medical reasons. However, in his letter to the WSIB Claims Investigator in 2002, Dr. Kirzner clearly states that this note was submitted not for the worker s musculoskeletal pain but because the worker had an excessive cough. The Panel finds no reason to dispute Dr. Kirzner s statement regarding the purpose of the visit and finds that the evidence fails to confirm that the worker had back complaints on June 20, [51] In the Form 8 completed by Dr. Kirzner on February 6, 2002, the doctor referred to the worker s history of injury as a vague increased onset of pain, diagnosed myalgia and gave the date of first treatment as November 30, In the Panel s view, this suggests that Dr. Kirzner considered the worker s subsequent problems to be directly related to the medical condition that was evident prior the worker commencing employment with the accident employer. [52] On May 12, 2003, Dr. Kirzner wrote a general to whom it may concern letter confirming his treatment of the worker in the spring and summer of 2000 for severe muscular pain all over. Dr. Kirzner goes on to state that I believe [the worker] when he tells me that work and heavy frame shifting may be worsening his severe pain. Dr. Kirzner does not suggest that the worker s pain originated with a work-related injury, but his comment could perhaps be construed as indicative of a possible aggravation of a pre-existing condition. However, Dr. Kirzner provides no findings in support of his belief and his comment seems at odds with his earlier medical reports, which fail to attribute any role to the worker s employment duties in the development of the worker s pain. In the Panel s view, Dr. Kirzner s 2003 letter does not constitute persuasive evidence of a work-related contribution to the worker s condition. [53] A not dissimilar pattern emerges with respect to Dr. Mak s reports. His first mention of a possible work-related contribution to the worker s medical condition appears in a short open letter dated May 7, 2002, almost two years after the worker s claimed injury in June In this letter, Dr. Mak notes that [the worker s] pain seemed to develop after he was doing heavy lifting during his previous work. On February 12, 2004, Dr. Mak wrote another short open letter indicating that the worker s back pain started after he was doing heavy lifting and shifting

11 Page: 10 Decision No. 437/06 during his work at [the accident employer]. Again, this comment appears to be inconsistent with Dr. Mak s earlier medical reports, in particular his reports in 2000 and 2001, which suggest that the worker s problems originated well before his employment with the accident employer commenced. [54] The Panel notes that there is no mention of a work-related contribution to the worker s condition in any medical report prepared by Dr. Mak, either in 2000 or at any subsequent date. The references to work appear only in the two to whom it may concern letters, no supportive findings are provided and no attempt is made to reconcile these references with Dr. Mak s earlier, contemporary medical reports. Again, in the Panel s view, the two open letters by Dr. Mak do not serve to alter the conclusions that might reasonably be drawn from Dr. Mak s earlier medical reports namely, that no connection is found between the worker s medical condition and his employment duties. [55] The Panel also notes that the Case Record includes a number of medical reports by other doctors, including Dr. Mekdeci, Dr. Rothman and Dr. Dunne, some of which make reference to a possible relationship between the worker s back condition and his work in 2000 moving heavy frame assemblies. The Panel notes that none of these doctors began treating the worker until the middle of 2001, at the earliest, and none provides any clinical findings to support a relationship between the worker s condition and a work injury. [56] It seems clear to the Panel, from the context of their comments, that each of these doctors has relied upon an account of the circumstances of his injury provided ex-post by the worker himself. The Panel does not find that the reports by these doctors, many written five or more years after the events of June 2000, can be given much weight with respect to their views on the potential role of the worker s job duties at that time in contributing to his subsequent back condition. [57] During his testimony before the Panel, the worker appeared to place great reliance on the decision rendered by the Small Claims Court in March 2002 as somehow representing a vindication of the worker s claim that he was injured in the course of his employment. On reviewing the transcript of the proceedings in this case, the Panel reaches a different conclusion. [58] The Court awarded a judgment against the worker s employer for the equivalent of two weeks pay plus costs. However, based on an examination of the reasons for the judgment, it seems clear to the Panel that the award did not hinge on the Court s view of whether the worker was injured, but simply on the lack of written documentation or witness statements regarding the worker s job performance, evidence of progressive discipline procedures and/or reasons for dismissal. The Court, in fact, stated that it found it impossible in these circumstances to test the bona fide of the dismissal and, as a consequence, judgment was given against the defendant. [59] The Panel does not doubt that the worker has a significant and painful back condition. The medical evidence in the Case Record provides ample confirmation of this. However, the key issue in this case is not the existence of the back condition but whether and how that condition is related to the performance of the worker s job duties. Two further witnesses who appeared before the Panel on behalf of the worker, B and C, both acquaintances of the worker, testified regarding their understanding of the nature of the worker s condition, its

12 Page: 11 Decision No. 437/06 presence over a lengthy period of time and the circumstances in which it arose out of the worker s employment duties. However, neither of these witnesses had first-hand information which could assist in confirming how and when the worker s injury occurred. [60] In summary, the Panel finds that the evidence fails to establish that the worker sustained a work-related injury on June 16, 2000, or suffered an aggravation of a pre-existing condition. The documentation in the Case Record does not support that an accident occurred on that date, nor is there any medical evidence to indicate that the worker received treatment on or after that date for a work-related injury. [61] The medical evidence does support that the worker had received treatment prior to the start of his employment with the accident employer for a general musculoskeletal migrating pain condition which appears to have defied specific diagnosis and which continued, apparently without any significant change in symptoms, in the period following June Later medical evidence suggests the likelihood that a degenerative disc condition in the back may have contributed to the worker s pain in more recent years, but again the Panel finds no evidence of a relationship between the worker s work duties with the accident employer and the development of his back condition. Accordingly, the worker s appeal is denied.

13 Page: 12 Decision No. 437/06 DISPOSITION [62] The worker s appeal is denied. [63] The worker does not have initial entitlement for a back injury claimed to have occurred at work on June 16, DATED: April 15, 2009 SIGNED: I. Welton, B. Wheeler, D. Broadbent