WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

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1 2005 ONWSIAT 1498 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 395/05 [1] Tribunal Vice-Chair S.J. Sutherland heard this appeal in Toronto, on February 22, THE APPEAL PROCEEDINGS [2] The employer appealed from the decision of the Appeals Resolution Officer, R. Lucyk, dated November 5, In that decision, the Appeals Resolution Officer allowed the worker loss of earnings benefits subsequent to December 20, [3] The employer was represented by R. Fink, a lawyer. [4] The worker appeared and was represented by R. Quinn, the director of his union's social services. THE RECORD [5] I had before me, and considered, the following written materials: Exhibit #1 the Case Record; Exhibit #2 Addendum No. 1; Exhibit #3 Addendum No. 2; Exhibit #4 Addendum No. 3; Exhibit #5 a letter dated July 23, 2004, from the Office of the Vice-Chair Registrar to the representatives; and Exhibit #6 documents produced at the hearing. [6] The worker, his foreman, the employer's manager, occupational health and safety, and the structural superintendent, testified under oath. Messrs. Fink and Quinn made brief opening remarks and closing submissions. THE ISSUES [7] The employer asks that the worker's entitlement to loss of earnings benefits between December 20, 2002 and June 4, 2003, be rescinded. THE LAW AND POLICY [8] The Workplace Safety and Insurance Act, 1997 (WSIA) took effect on January 1, 1998, and applies in this appeal. Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified

2 Page: 2 Decision No. 395/05 certain policies applicable to this appeal and I have considered these policies as necessary in deciding this appeal. [9] Section 43 of the WSIA provides for payments for loss of earnings (LOE) resulting from a workplace injury: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker's loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). (7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, (a) in health care measures; (b) in his or her early and safe return to work; or (c) in all aspects of a labour market re-entry assessment or plan provided to the worker. 1997, c. 16, Sched. A, s. 43 (7). [10] Section 40 of the WSIA requires workers and employers to co-operate in the early and safe return to work (ESRTW) of a worker: 40. (1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by, (a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment; (b) attempting to provide suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker's return to work; and (d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (1). (2) The worker shall co-operate in his or her early and safe return to work by, (a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment; (b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores his or her pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker's return to work; and (d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (2).

3 Page: 3 Decision No. 395/05 THE REASONS (i) Background [11] The employer is a construction company. [12] The worker was almost 31 years old when I heard the employer's appeal. He began working for the employer, as a labourer, on August 20, [13] On November 25, 2002, the worker was holding the bottom of a 20-foot extension ladder. A co-worker untied the top of the ladder. The wind caught the ladder and spun it. The worker tried to hold it and twisted his low back in the process. [14] The Physician's First Report was completed by Dr. D. Kiez, who reported that she treated the worker on November 25, Dr. Kiez diagnosed a lumbar back strain. [15] The worker did not lose any time from work as result of the accident. The Board accepted the claim as a no lost time claim. [16] The worker was laid off on December 20, 2002, because of a work shortage. He collected employment insurance benefits. The worker apparently spoke with his union some time in March 2003 and was advised that he was entitled to benefits. He contacted the Claims Adjudicator on March 27, 2003 and described the accident to the Claims Adjudicator. He told the Claims Adjudicator that the employer told him it could not afford a lost time injury and offered him modified work. He felt, however, that the job duties the employer provided were essentially those of his regular job. The worker said he did not feel fit to do regular work. The employer promised to rehire him on January 7, 2003 and to provide him with modified work but had not done so. [17] The employer spoke with the Claims Adjudicator on April 29, The employer said that it provided the worker with light duties for five days. The worker then returned to regular job duties and did those until he was laid off because of a winter shutdown, some three weeks later. The employer said that the worker did not complain of any ongoing problems. [18] Mr. Quinn wrote the Board on May 5, Mr. Quinn said that although the worker did increase his duties after "the initial week of very light work" [emphasis in the original], he never returned to his full regular job duties because of ongoing back pain. The worker's back pain increased in February 2003 and he sought further medical care. It was Mr. Quinn's position that the lack of medical attention between November 2002 and February 2003 was not an indication that the worker's back pain had resolved. Mr. Quinn stated "it is certainly not unusual for construction workers to delay reporting accidents (which was not the case with [the worker]), and to avoid medical attention until the condition becomes critical or unbearable." Mr. Quinn advised the Claims Adjudicator that he had spoken with the worker's foreman, site superintendent, and the employer's health and safety coordinator. They acknowledged the happening of the accident and that the worker returned to light duties. The foreman was aware of the worker's ongoing back problems. Mr. Quinn asked that the worker be granted loss of earnings benefits

4 Page: 4 Decision No. 395/05 [19] The Claims Adjudicator denied the worker's claim on July 22, [20] Mr. Quinn appealed, on the worker's behalf, on September 15, [21] As noted above, the Appeals Resolution Officer allowed the worker's appeal in a decision dated November 5, [22] The employer has appealed to the Tribunal. (ii) The worker s testimony [23] In response to questions from Mr. Fink, the worker said that he left school at the age of 18. He worked in a fish processing plant on the East Coast of Labrador. He started working in construction in May He joined the union in February 1998 and he got his jobs through the union hall. He worked in general construction and began working for the accident employer in August [24] The worker testified that he was strong and "healthy as a horse." He had no problems with his back and he was in no pain before he began working for the accident employer. [25] The worker described the November 25, 2002 injury as follows. He had pain in the middle of his low back, at the belt line. When the injury first happened, it felt as though something tore in his low back. About three hours later, the pain went down his right leg to the knee and into his left buttock. [26] Mr. Fink referred the worker to the Physician's First Report completed by Dr. Kiez. The worker said that he did not have a family physician at that time. A co-worker took him to the hospital and the superintendent met them there. He could not remember what he told Dr. Kiez about the accident. [27] The worker confirmed that he returned to work that evening. The superintendent told him to do so. He thought he got back about 4 p.m. but it might have been later. He told the superintendent that Dr. Kiez said to take five to 10 days off and rest his back. He gave the superintendent a note that Dr. Kiez had given him. The superintendent responded "forget about this. Come back tomorrow and we'll take care of you." [28] The worker also said that the superintendent told him the employer could not afford to have a lost time claim. [29] The worker initially said that he "showed up" at work the next day and was sent for coffee. He could not remember how things progressed after that. Later in his testimony, the worker said that he was sent for coffee three times a day for about three weeks after the accident. He spent about a half hour making that trip so he spent about 1½ hours per day on coffee delivery. [30] Mr. Quinn also asked the worker about the work he did after his injury. The worker said that there was no offer of work; he was just to be on the job site. At no time did either the superintendent or the foreman make it clear what he was to do. He basically did nothing and

5 Page: 5 Decision No. 395/05 there was no pressure on him to do anything. He said that if he was running the company, he would have fired himself because he did not produce anything. [31] The worker testified that his regular job was general labourer and form setter. He was not capable of performing his regular job duties when he was laid-off in December. He tried his best but the strength and flexibility were just not there. Therefore, he did such things as helping to keep the job site clean and cutting an "I" beam with an acetylene torch. He operated a bobcat once. He did not do any lifting. He thought that if he had followed the doctor's orders and stayed home for a week or two after the injury, he would have recovered. [32] Mr. Fink directed the worker's attention to a memorandum prepared by the Claims Adjudicator on March 27, In that memorandum, the Claims Adjudicator recorded that the worker felt that "he was doing his regular job." The worker noted that the Claims Adjudicator's memorandum said that he was driving a bobcat. That was not part of his regular job. He could not remember loading trucks with aluminum joists, as the Claims Adjudicator said in her memorandum. [33] In the memorandum, the Claims Adjudicator said that the worker told her he did not file a claim in November 2002 because he did not want to get the employer into trouble. The worker confirmed the statement and said the employer would have gotten into trouble for not filing a report with the Board. In addition, the employer said that they would take care of him. [34] The worker could not recall what work he was doing before the lay-off in December 2002, but said it would have been assigned by his foreman. The worker did not know if the superintendent was aware of the work he was doing. He went on to say that he complained to the superintendent about the pain he got from driving the bobcat and he complained to both the superintendent and the foreman about his back injury from the date of the accident right up until he was laid off. He had a lot of pain and it was made worse by minimal movement. He could not bend over to pick things up and he had limited maneuverability in his back. [35] The worker reiterated that the superintendent told him at the time of the accident that he would look after the worker if he did not report the accident to the Board. He saw the superintendent in January and asked about returning to work. The superintendent told him to wait and he did so. He asked the superintendent again some time later and the superintendent said nothing was going on. He spoke with both the superintendent and foreman on the telephone every week or two. He talked about his back pain on each occasion and asked when he would be going back to work and what he was going to do. He saw the foreman on the job site, twice, and the foreman could see that he was in pain. When nothing happened, he went to see Mr. Quinn. [36] Mr. Fink asked the worker about the condition of his back after he had been absent from work for three weeks. The worker answered that it was sometimes the same; sometimes a little worse; it was never any better. At first he said that he was taking Robaxacet 1 but did not seek medical attention. There were three reasons for not seeing a doctor. First, he did not have a 1 Robaxacet is a a muscle relaxant and analgesic.

6 Page: 6 Decision No. 395/05 family physician. Second, he was depending on the superintendent to look after him. Finally, he kept hoping that he would recover from the injury. [37] Later in his testimony, the worker said that he began taking the Robaxacet after he started seeing Dr. T. Katsuta 2. When Mr. Quinn questioned the worker, he said that he took Robaxacet after the injury because he could purchase it over the counter. When he began to see Dr. Katsuta, he prescribed Celebrex 3. [38] Mr. Fink asked the worker where he got the Worker's Report of Injury that he submitted to the Board on January 29, The worker answered that he got it from the union office. He repeated that he went to the union office and spoke with the business agent and the union president because the employer "was not taking care of [him]." [39] The worker could not recall whether he spoke with anyone at the Board when he did not get any benefits in February He also could not remember whether he spoke with anyone at the Board before the "pants incident." [40] The worker described the "pants incident" as follows. There was nothing out of the ordinary that day. He had a knot in his side when he woke up. He reached for his pants and developed sharp pain that went down both legs to his knees. He could not pull his pants up. His son had to call his wife at work. She came home and called an ambulance. There was a lot of pain in his back. He had pins and needles in his legs and no feeling in his foot. He went to the hospital by ambulance. He told the ambulance attendants that he had problems with his back prior to that date. He did not know why they did not record the history, as he recounted it to them, in their notes. He also told the doctor about the November incident but she kept saying there was no relationship. He was depressed by her comments. The doctor told him he was rude and should leave the hospital. Mr. Quinn handled his claim from that point forward. [41] Mr. Quinn directed the worker s attention to the Ambulance Call Report dated February25, That report stated: Patient hurt lower back putting on his pants this morning. [Illegible] just out of bed +2 hours. History of [illegible] injury in December 02, similar to this. [42] The worker thought that sounded like the history he reported to the ambulance attendant except that the injury was in November, not December. [43] Mr. Fink pointed out that the worker submitted a second Report of Injury to the Board on March 13, The worker did not know why he filed the second report. He could not remember why he did not contact the Board until March 27, There is a note dated March 1, 2003 from Dr. Katsuta in the materials. Dr. Katsuta said that the worker was unable to work after February 23, Celebrex is a non-steroidal anti-inflammatory medication used to relieve acute pain in adults. 4 The worker's first Report to the Board had two dates on it: January 28, and 29, 2003 but it was stamped as having been received at the Board on March 3, 2003.

7 Page: 7 Decision No. 395/05 [44] Mr. Fink commented that the worker s first report was filed on January 29, He asked why the worker did not seek medical attention after he filed that report. The worker said he thought he was capable of doing light work because he had done light work before the lay off. He thought if the employer took him back and gave him light work "Everything would go away." [45] The worker acknowledged that he applied for Employment Insurance benefits but was not sure when he had done so. He commented that it took six weeks from the time a claim was filed until benefits began to flow. He did not think he was getting Employment Insurance benefits when he contacted the Board in March [46] The worker testified that he was not aware that he was entitled to benefits if he was injured at work prior to discussing the matter with his union. [47] It was the worker's evidence that he was in constant pain from the date of the injury until he completed therapy. He did not work for anyone after he was laid off in December 2002 until he returned to work for the accident employer in June or July He returned to work at the same job site and for the same foreman. He still had recurrences of back pain from time to time. [48] When Mr. Quinn questioned the worker, the worker said that he did not know where the superintendent was when he injured himself. The superintendent usually spent a half hour to an hour per day on the job site. If there was a problem, he would be there longer. He spent a lot of time on another job. (iii) The foreman s testimony [49] The foreman testified that he and the worker worked together at another company prior to working for the accident employer. He also worked with the superintendent at other companies and, at the time of the events relevant to this appeal, had worked for the superintendent for two seasons with the accident employer. [50] The foreman said that the worker was a member of his crew in November He thought there were six in his crew. There were two foremen on that job. He was a working foreman and worked closely with the worker. The superintendent was on the site most days and the superintendent oversaw the work. [51] The foreman remembered the worker's accident. After he hurt his back, the worker went to the foreman, limping and in bad shape. A co-worker took him to the hospital. The foreman telephoned the superintendent and the superintendent met the worker at the hospital. The foreman stayed at the job site. [52] The foreman confirmed that the worker returned to work immediately after leaving the hospital. The work he did was mostly clean up, which was not as heavy as the form work he was doing when he was hurt. He cut the tops off about 20 piles, using a torch, between November and December He did not have any trouble doing that job. He operated the bobcat. The foreman did not remember how often he did so. He drove a pickup truck. He did not load any trucks with aluminum joists. The foreman did not know if the worker got materials for the superintendent.

8 Page: 8 Decision No. 395/05 [53] The foreman agreed with Mr. Fink that these were all jobs that had to be done on the job site. The form work was completely finished when the worker was injured. The foreman did not know whether the worker worked overtime after his injury. He thought that the crew worked one Saturday. The worker did not complain because they were paid double time. [54] The foreman said that every morning he asked the worker how he felt. The worker responded that he was sore so they tried to give him easy jobs. He could not lift anything heavy. They sent him to get coffee three times a day. The worker told the superintendent that he would be fine but it would take time. Any time the superintendent spoke with the foreman about the worker, the foreman said that he was still sore. The superintendent was aware that the worker was doing light work. He was not sure whether he told the superintendent that the worker could not do any heavy lifting. He did not make any notes with respect to the worker's complaints. That was because the superintendent went to the hospital after the worker's injury and he assumed that the superintendent was keeping a record. [55] The foreman recalled that the worker and about three more of his crew were laid-off on December 20, The worker asked the superintendent if there would be a job for him in January and he heard the superintendent say that there would be. The foreman was also off for a few weeks at Christmas. He believed that he and three workers were recalled in January. He thought that people were probably called back as they were needed. He remembered that there were carpenters on the job in January. He did not remember when the rest of the crew was brought up to complement because he left that job and went to another with the same employer, in March The crew was not yet at full complement when he left. [56] The foreman remembered the worker visiting the job site in January to see if there was work. The foreman talked with the worker for a few minutes. He was not sure if the worker came again. The foreman also spoke with the worker on the telephone "a couple of times." The worker was still complaining about the pain in his back. The foreman had nothing to do with hiring and he did not make note of any conversations he and the worker had after the lay-off. [57] The foreman stated that the worker could not have done the job if he had a bad back before the accident. He and the superintendent discussed the worker occasionally between January and March The foreman asked the superintendent if the worker was coming back and the superintendent said that he was not. The superintendent recalled three other men. He did not say why the worker was not coming back. [58] The foreman had no knowledge with respect to the "pants incident" in February (iv) The testimony of the manager, occupational health and safety [59] The manager testified that he knew about the worker's accident. He said that the employer had a policy that required the superintendent or foreman to either go with or meet an injured worker at the hospital. The foreman or superintendent takes a Functional Abilities Form, a consent form, an accident report, and a letter that is given to the doctor saying that the employer has modified work. [60] Mr. Fink pointed out that Dr. Kiez, in her Physician's First Report, said that the worker should be off work for five days. The manager responded that the superintendent, the foreman,

9 Page: 9 Decision No. 395/05 and the worker discussed the matter. The superintendent asked the worker if he wanted to take part in the employer's modified work program and the worker responded that he did. Together they agreed on work that would not aggravate the worker's injured back. As he recalled, the worker did clean-up on the job site. It was his understanding that the worker did that for five days and then returned to his normal duties. He went on to say that the worker worked overtime between the accident and the lay-off. Further, the superintendent was on the job site every day and reported that everything was fine. [61] The manager said that the lay-off before Christmas was standard. The worker did not express any concern about the lay-off. The manager understood that the worker was in good physical condition when he was laid-off in December. [62] The manager stated that the foreman and the worker were both union members. The superintendent was not. The normal chain of communication would be for the worker to go to the foreman; the foreman to go to the superintendent; and the superintendent to discuss any matters with him. He depended on the field staff, especially the foremen, to keep him informed. He did not want workers doing any work that would aggravate an injury. The reports from the foreman and the superintendent were verbal. If he becomes involved, he documents the activities and agreements. In this case, there was no documentation because he did not get any information about ongoing problems. [63] The manager did not know why the worker was not recalled in January. It was his impression that the worker was fully able-bodied. He had no information that the worker's injury was still a factor. If the foreman was aware that the worker was still injured in January, he should have communicated that to the superintendent, who would have communicated it to him. He would have re-employed the worker on modified work if he knew the worker was injured. To do so helped the employer's claims management and its compensation record. [64] The manager said that he thought he became aware some time in April 2003 that the worker was claiming to still be injured. The company did not offer him modified work because the worker did not indicate he wanted to return. He thought that the matter was brought to the company's attention when the superintendent got a call from the union. [65] Mr. Quinn pointed out that the worker contacted the employer at the end of January, and was seeking modified work. The manager said that the worker contacted the superintendent. He was not sure if he heard about it at that time. He did not believe that there was any activity within the company after the union contact. In particular, there was no direct communication with the worker. [66] The manager agreed that he spoke with the foreman about the incident. He thought that was about a week before the foreman left the company. The foreman said that the worker had complained constantly. He asked why the foreman had not passed that information on. The foreman's response was that he was not a doctor. [67] The manager said he did not visit the job site either on or after the worker's accident. Offers of modified work, when the worker was injured, were relatively informal. The employer has "tightened up the process" and now puts offers in writing.

10 Page: 10 Decision No. 395/05 (v) The testimony of the structural superintendent [68] The superintendent stated that he has known the foreman and has worked with him on and off for 20 years or more. [69] The superintendent testified that he worked for the employer for six years, always in the same position. He confirmed that he met the worker at the hospital after his injury on November 25, 2002, and took the necessary paperwork with him. [70] The superintendent said that the worker returned to work on the day of the accident and on the following day. He had a letter saying that he was to take it easy for a couple of days and he told the worker not to do any heavy work. The worker's regular job was assisting carpenters and he continued to do that. [71] Mr. Fink pointed out that the materials contained a letter saying that the worker was to be off work for five days. The superintendent had not seen that letter before. [72] The superintendent denied telling the worker that he would take care of him; that the employer frowned on people taking time off; and that he made any promises to the worker if he did not take time off. [73] The superintendent stated that he was on the job site for an hour or two, every day. The worker moved light aluminum joists in the first week after the accident. The worker used a pickup truck to move material around the job site. He might also have used a bobcat. He could not remember the worker complaining about the bobcat. He was doing his regular job duties in the second week after the accident. His regular job duties included building and bracing forms with the carpenters. [74] Mr. Fink advised the superintendent that the previous witnesses said the form work was finished when the worker was injured. The superintendent said they finished December 20, The worker "probably" did not do form work until a week or two before the lay-off. [75] The superintendent estimated the weights of the materials the worker used from the second week after the injury, on. These were: cutting torches holders bits and pieces of 2 x 4 and 4 x 4 sheets of plywood aluminum beams 2 to 3 pounds 3 to 4 pounds 10 to 30 pounds 25 to 30 pounds 20 pounds [76] The superintendent testified that the worker made no complaints about his back before the lay-off. The foreman did not mention the worker having any problems. In fact, he and the foreman did not discuss the worker at all in the last three weeks before the lay-off. He felt that if there was any issue, the foreman would have discussed it with him.

11 Page: 11 Decision No. 395/05 [77] The superintendent testified that if the worker was having a problem, he would have notified the superintendent or the health and safety representative on the site. Going from light work to regular work was at the worker's discretion and happened over a period of time. The process was entirely worker driven. [78] The superintendent confirmed that the worker was one of about 15 or 20 people laid off during the week of December 20, He told the worker that he thought the worker would be back in January but all the workers were not called back because of problems on the job. Foremen get first preference for winter work and he called the foreman back. If the worker was on modified work before he laid-off, he would have been brought back as a priority. The health and safety representative and the union steward were called back. They were followed by the carpenters. He thought about four of the crew of six or eight were called back in January. The crew was back to full capacity in about April The superintendent did not contact the worker at that time. If he needed additional workers, he would contact the union. [79] The superintendent said that he believed the worker was working somewhere else because he had not heard from him. [80] It was the superintendent's recollection that he got a call from the union's business agent at the end of January The business agent asked why the worker had not been called back. The business agent said that the worker was on modified work before the lay-off and should have been recalled. The superintendent did not recall speaking with the worker before talking with the business agent. He did not recall talking with the foreman about the worker's ongoing problem. As far as he was concerned, the worker was doing his regular job duties before the lay-off. [81] The superintendent stated that the next time he heard from the worker was in March or April The worker wanted information sent to the insurance company. [82] In response to questions from Mr. Quinn, the superintendent said: there was no written offer of modified work; nine out of 10 workers who work for him are told he will give them work if he has it; the worker might have gone to the yard on January 4, 2003; the superintendent thought the worker had recovered about a week after the accident and did not know the worker had an ongoing disability; the foreman did not tell him that the worker had an ongoing problem; when the union contacted him at the end of January 2003, he explained that the worker was not on modified work when he was laid-off and he would be called back to work as soon as work was available; he disputed the fact that the worker was on modified work when he laid-off; if the worker had an ongoing problem, the superintendent did not understand why the worker did not speak with him about it.

12 Page: 12 Decision No. 395/05 (vi) The medical evidence [83] The Physician's First Report was prepared by Dr. D. Kiez on November 25, Dr. Kiez diagnosed a lumbar back strain. She indicated that the worker should recover completely in seven to 10 days. [84] The worker was taken to hospital by ambulance on February 23, The ambulance report said: patient hurt lower back putting on his pants this morning [illegible] injury in December 02, similar to this. [85] The Emergency Department report said: 28-year-old was putting pants approximately Sudden onset of back pain. patient unable to move. In severe pain. History: Back injury at work (construction worker) 3 1/2 months ago. This AM while putting on pants "my back went out". He had similar incident November/December/02. Seen at [illegible]. Some [illegible] pain - no pain below knees [86] The physician who treated the worker diagnosed a lumbosacral strain and recommended that he do no heavy lifting for three or four days. The physician noted that the worker "resisting a referral to back specialist or neurologist." [87] The worker's lumbosacral spine was x-rayed on February 23, The x-ray showed "minimal degenerative changes... at the L4-5 level with tiny anterior osteophytes. The disc spaces are intact." [88] The worker consulted Dr. S. Arabnezhad, a chiropractor, on February 27, Dr. Arabnezhad diagnosed "exacerbation of chronic low back pain, sprain/strain and possible disc herniation." Dr. Arabnezhad recommended no heavy lifting or repetitive and stressful movement of the worker's thoracolumbar spine. [89] Dr. T. Katsuta, a family physician, wrote the worker a note on March 1, In that note, Dr. Katsuta said that the worker had been unable to work for an indefinite period of time since February 23, 2003, because of a back injury. [90] On March 25, 2003, Dr. Katsuta submitted the Health Professional's First Report to the Board. Dr. Katsuta said that the worker had a low back strain and possible sciatica. He was waiting to have a CT scan. In the interim, he was to do no lifting. [91] Dr. G. Lantos, an occupational physician, wrote the following on April 1, 2003: I am writing this your request to support a possible/possible connection/causation between current symptomatology and the initial accident of November 26, Initially the wind caught the ladder, causing [the worker] to fall to the ground on November 26, This caused him to "twist" his back. He then tried to pull the ladder off the road, further pulling/straining his back. He tried to "walk it off" but pain was

13 Page: 13 Decision No. 395/05 about 9/10 (as per employee) and colleague took him to the Emergency Room. He was discharged and advised by the emergency doctor to rest for 6-8 days. [The worker] did not have a family doctor and so self-medicated with over-the-counter Robaxacet 5. The workplace encouraged him to return to "light duties" which he did the very next day. He was "laid off" December 20. All the while he claims that he had pain and was taking Robaxacet. On February 23 while getting dressed, he developed acute sciatica, and was taken to the Emergency Room where he was injected with Demerol. A CT showed some minimal DDD 6 with anterior L4-5. Recent examination reveals considerable muscle spasm (paravertebral) ROM 7, poor L-S rhythm, and SLR's Neurologically intact. CONCLUSION: Acute on chronic mechanical low back pain, myofascial strain, aggravation of mild underlying DDD. The initial accident of November 26 was essentially not treated. [The worker] never recovered and the flareup of February 23 is a continuation of this same process. [92] The materials indicate that the worker was treated with acupuncture, soft laser, and magnetic field therapy, between March 5, and April 21, [93] The materials contained clinical notes with respect to the worker's treatment between the April 21, and May 23, The last note said "Feeling great." [94] In an undated letter, T. Barrett, a physiotherapist, stated that the worker could return to modified duties and modified hours. [95] Dr. Lantos completed a Functional Abilities Form on May 27, In that form, Dr. Lantos did not indicate any restrictions, but said that the worker was "fit for as the customary duties of barge attendant marine labour. No restrictions needed for this job. (vii) Conclusions [96] This appeal is complicated, in part, by the lack of contemporaneously produced documentation. It is further complicated by the inconsistencies in the worker's testimony before me, the inconsistencies between his testimony and previous statements he made, primarily to the Claims Adjudicator, and inconsistencies among the testimony of the witnesses. [97] There is agreement among the witnesses that the worker did not have any back problems prior to the November 25, 2002 injury. [98] Dr. Kiez diagnosed a lumbar strain on November 25, She said that the worker should be absent from work for five to 10 days and she expected him to recover completely in about two weeks. 5 Robaxacet is a muscle relaxant and analgesic 6 degenerative disc disease 7 range of motion 8 straight leg raising

14 Page: 14 Decision No. 395/05 [99] The worker returned to work contrary to Dr. Kiez' recommendation. His testimony with respect to the assurances made by the superintendent had the ring of truth to it, as did his testimony with respect to the superintendent's knowledge of his ongoing back pain and the superintendent's putting him off each time he asked about work after the lay-off. The superintendent's claim that he had no knowledge that the worker had an ongoing problem and he made no promises with respect to recall was contradicted by the foreman's testimony. [100] In my view, the testimony of the foreman who was in daily contact with the worker was more reliable than that of the superintendent who spent much of his time on another job and might not have been aware of the worker's ongoing complaints. [101] I accept the testimony that the form work was essentially completed when the worker injured his back; that the job duties to which he was assigned for at least a week following the injury was work that had to be done; and the lay-off at Christmas was expected. [102] I also accept the testimony of the manager, occupational health and safety, and the foreman, that the worker worked overtime, at least once, between November 25, and December 20, The mere fact that he worked overtime does not indicate that he was painfree. [103] The foreman, who was in daily contact with the worker, confirmed that the worker complained of ongoing pain, could not lift anything heavy, and he gave the worker easy jobs. [104] Given the evidence set out above, I find that the worker did not recover as expected by Dr. Kiez. He continued to be symptomatic and the employer provided him with modified work that was within his capability, until December 20, 2002, at which time he was laid-off because there was no further work available. [105] There is no medical evidence between Dr. Kiez' report dated November 25, 2002 and the "pants incident" on February 23, The worker admitted that he did not have any medical attention during that period of time. [106] The worker was absent from work for slightly more than two months before the "pants incident." He testified that he was not employed during that time. The foreman testified that he spoke with the worker several times after the lay-off. Beyond saying that the worker visited the job site in January, they spoke on the telephone "a couple of times," and he had no knowledge with respect to the "pants incident," the foreman was not specific about when they spoke. However, the foreman testified that the worker complained of back pain each time they spoke. [107] The "pants incident" happened on February 23, A man putting on his pants in the morning can hardly be described as doing something unusual. [108] On February 27, 2003, Dr. Arabnezhad said that the worker exacerbated his chronic low back pain, which suggests the worker had ongoing pain after the lay-off. [109] The worker's testimony that he did not submit a claim to protect the employer does not make sense in light of the fact that the employer reported the accident on November 27, 2002, which was two days after it happened.

15 Page: 15 Decision No. 395/05 [110] The fact that the worker's first Report of Injury was received at the Board on March 3, 2003, suggests strongly that it was completed after the "pants incident," despite the fact that it was dated both January 28, and January 29, [111] Mr. Fink submitted that the worker did not have sciatica in November 2002 but had it after the February 2003 incident. He argued that the "pants incident" caused the sciatica and disc protrusion, if the worker had one. He submitted further, that if the worker had a disc protrusion as a result of the November 2002 accident, he would have had significant symptoms and would have sought treatment. I find his argument compelling, especially with respect to the chronology of events. However, the injury to the worker's back that happened in November 2002 was sudden and unexpected. He was holding a 20-foot ladder that had been caught by the wind and was twisting. When I compare the strain caused by that accident with the strain of putting on one's pants, I must conclude that it is more likely than not that the first incident caused the ongoing problem. [112] Taking into account all of the evidence set out above, I find that the evidence is approximately equal with respect to whether the worker had an ongoing disability that was caused by the November 25, 2002 compensable accident. The benefit of doubt, therefore, goes to the worker. THE DECISION [113] The employer's appeal is dismissed. [114] The worker was entitled to the loss of earnings benefits he received between December 20, 2002 and June 4, DATED: July 5, 2005 SIGNED: S.J. Sutherland