WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1583/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1583/16 BEFORE: B. Alexander : Vice-Chair A.D.G. Purdy : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: June 15, 2016 at Kitchener Oral DATE OF DECISION: September 16, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2478 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 18, APPEARANCES: For the worker: For the employer: Interpreter: D. Hunter, Office of the Worker Adviser Not participating 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. 1583/16 REASONS (i) Introduction [1] The issue in this appeal is whether the worker has initial entitlement for a low back injury having risen out of and in the course of employment on September 21, [2] The worker, who was born in 1958, began working for the employer retail store chain on July 24, [3] In a Worker s Report of Injury dated January 12, 2011, the worker stated that while she was working as a night stocker on September 20, 2010, she injured her left side, back, hip, thigh, buttocks, foot and toes while pulling very heavy skids. The worker noted that she reported the injury to the employer at the time and continued to perform her regular duties. [4] In an Employer s Report of Injury dated January 14, 2011, the employer noted that the worker had advised that she had seen a doctor on December 15, 2010 for a work related injury that resulted in her having a buzzing toe and walking off balance. The report noted that the worker did not know the exact cause of her injury but related it to a pinched nerve as a result of her regular stocking duties. [5] The report attached a note from the worker dated September 21, 2010, in which the worker stated: At the end of my shift while taking skids off the floor, on my last skid while I was pushing the skid in the spot I pulled my groin muscle on my left leg and hip muscle on same leg. [6] On December 14, 2010, the worker requested a leave of absence from work so that she could apply for sick leave benefits. [7] In a note dated December 15, 2010, the worker s family doctor, Dr. B. Schumilas, advised that the worker was unable to work and that she would be reassessed after further test results were received. [8] In a Health Professional s First Report dated January 21, 2011, Dr. Schumilas advised that he had seen the worker on December 15, 2010 and that she had developed left lower back pain with radiation into the left hip as a result of heavy repetitive lifting at work sometime in December Dr. Schumilas diagnosed an L5 disc herniation with nerve root compression. [9] A February 20, 2011 MRI report concluded that the worker had multilevel degenerative disc disease at lower lumbosacral spine and multilevel facet degenerative change, as well as bulging discs at L4-5 and L5-S1. [10] The ARO decision noted that Dr. Schumilas clinical notes had confirmed that the worker had left sided back pain radiating to the left leg as early as November 2008 and as recently as April 10 prior to the claim for benefits. [11] The ARO decision denied the worker s claim stating: Given the significant delays in seeking medical treatment, the delay in reporting the September 21 incident, the confusion with respect to the development of a back complaint prior to the December 15, 2010 assessment, I must conclude that there is insufficient evidence to establish that the worker s injuries arose out of and in the course of employment.

3 Page: 2 Decision No. 1583/16 (ii) The worker s testimony [12] In her testimony, the worker stated that her job involved stocking shelves from wooden skids that were placed in the middle of the aisles. She worked with a team of others on a night shift which began at 11:00 p.m. after the store closed. By 6:00 a.m. all the skids had to be cleared out of the aisles and she would use a pump truck dolly to move the skids and any product that they were unable to place on the shelves, back to the storage area. [13] She began working 22 hours a week and was soon working 40 hours a week from 11:00 p.m. to 7:00 a.m. [14] At the time of her injury, she was moving a full load of skids off the floor by pulling them backwards on a pump truck. She had to park them in a tight space and to do so she had to push on the four-foot truck handle with her arms and on the truck itself with one leg. While pushing she felt immediate pain in her groin. She advised the person responsible for health and safety about what had happened. [15] She went home, took Tylenol and rested. She did not have to return to work for two days and as she thought she would get better, she did not seek medical attention. [16] She returned to work and within a week her groin pain was gone and she began feeling lower back pain which included buzzing and tingling down to her toes. She could not transport the skids and confined herself to stocking shelves. She was allowed to perform easier stocking duties, particularly the stocking of soft fashions, which were lighter and did not require her to bend. [17] She stopped working after her appointment with Dr. Schumilas on December 15, At the time she was coughing and losing her balance. Between the September 21, 2010 accident and December 15, 2010, she had no other accidents. [18] She had back pain before the September 21, 2010 accident but it came and went and was nothing like what she experienced after the accident. After the accident her back pain was stronger and continuous. She also began walking off balance and feeling tingling in her legs, neither of which she had experienced before the accident. [19] She had hobbies such as biking, hiking, golfing, fishing and gardening before the accident and now she has none. She has not returned to work. (iii) Mr. Hunter s submissions [20] In his submissions, Mr. Hunter stated that the worker sustained a workplace injury in September Although it was not acknowledged in the January 14, 2011 Employer s Report of Injury, it was reported in a note prepared by the worker at the time. [21] The worker s symptoms following the September 21, 2010 accident related directly to the duties she was performing with the employer. In his Health Professional s Report, Dr. Schumilas attributed the worker s back problems to her repetitive heavy lifting at work and there is no evidence of any other incident that may have contributed to them. [22] The worker did not seek medical attention for her injuries because she thought they would get better on their own and as a probationary employer she was concerned about her job security.

4 Page: 3 Decision No. 1583/16 [23] Although she had back symptoms in the past, there is no evidence that she was suffering from them at the time of her injury. The fact that her new pain symptoms were referred to her lower limbs and her toes led to the MRI which indicated that she had disc problems. [24] In a May 12, 2016 report, Dr. Schumilas stated that his diagnosis on November 7, 2008 was low back pain and he did not feel there were any neurological concerns at that time. According to Dr. Schumilas by December 15, 2010, the worker presented with associated numbness in toes and abnormal proprioception which is why he ordered an MRI. [25] This is consistent with the worker s statement that four or five days after the incident, she noticed her left toe was buzzing like it was asleep, and with the commentary in the discussion paper Low Back Pain dated February 2015, included in the case materials which was prepared for the Tribunal by orthopaedic surgeons, Dr. A. Yee, Dr. S. Mohammed and Dr. B. Malcolm, which states that there can be a delay in the development of leg symptoms after a back injury. (iv) Law and policy [26] Since the worker was injured in 2010, 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. [27] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, #241- Initial Entitlement and #300 Decision Making/Benefit of Doubt/Merits and Justice, would apply to the subject matter of this appeal. [28] We have considered these policies as necessary in deciding the issues in this appeal. (v) Conclusions [29] The Panel finds that the worker does not have entitlement for a September 21, 2010 low back injury. [30] There is insufficient evidence to establish that the worker sustained a low back injury on September 21, [31] The note prepared by the worker at the time of the injury indicated that she had injured her left hip and groin muscle. [32] Immediately after the injury, the worker was able to return to her normal duties and according to a letter from the employer dated March 25, 2011, she continued to work as an overnight stocker until she was moved to a softlines fashion processor on November 13, [33] The worker did not seek medical attention for her back until she saw Dr. Schumilas on December 15, 2010, almost three months after the September 21, 2010 incident. Dr. Schumilas provided her with a note stating she was unable to work but the note did not indicate that her injury was work related. [34] In a December 3, 2011 report, Dr. Schumilas advised that he was unaware of any specific incident in September [35] According to Dr. Schumilas January 21, 2011 Report of Injury, the worker s lower back problems related to her repetitively lifting 50 to 60 pounds some time in December 2010, a month when, according to both the worker and the employer, she was working at light duties.

5 Page: 4 Decision No. 1583/16 [36] The worker s ongoing low back symptoms are consistent with the progressive degenerative changes that were evident before September 21, 2010 and were confirmed by the March 25, 2011 MRI. [37] In her testimony, the worker confirmed that she had pre-existing back problems and the clinical notes provided by Dr. Schumilas indicate that on November 7, 2008, the worker had lower back pain that radiated down her left leg. These notes further indicate that Dr. Schumilas suspected a problem at L5 spine and that he prescribed meloxicam, a medication used to treat osteoarthritis. [38] Another of Dr. Schumilas clinical notes dated April 8, 2010, indicated that the worker was experiencing pain that radiated into her left hip. [39] In his January 21, 2011 Health Professional s First Report, Dr. Schumilas advised that the worker had the symptoms of lower back pain with radiation into the left hip and provided a similar diagnosis of a problem at L5. [40] The March 25, 2011 MRI confirmed that the worker that had disc bulges at L4-L5 and L5-S1 as well as significant other degenerative changes described as multilevel degenerative disc disease and multilevel facet degenerative change. [41] In his May 12, 2016 report, Dr. Schumilas stated that between November 7, 2008, when he first noted the worker s back pain and his examination of the worker on December 15, 2010, the worker developed additional back symptoms which included numbness in toes and abnormal proprioception. These additional symptoms are consistent with the progression of the degenerative changes in the worker s back noted in the MRI.

6 Page: 5 Decision No. 1583/16 DISPOSITION [42] The appeal is denied. DATED: September 16, 2016 SIGNED: B. Alexander, A.D.G. Purdy, M. Ferrari