WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1537/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1537/16 BEFORE: S. J. Sutherland : Vice-Chair A.D.G. Purdy : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: June 7, 2016 at Kitchener Oral DATE OF DECISION: August 10, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2128 DECISION UNDER APPEAL: Appeals Resolution Officer, P. Jones, dated December 13, 2013 APPEARANCES: For the worker: For the employer: A. Consiglio, a Paralegal M. Gordon, a Paralegal The employer s Claims Specialist was a resource person for Mr. Gordon Interpreter: 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. 1537/16 REASONS (i) Introduction [1] The worker appealed from the decision of the Appeals Resolution Officer, P. Jones, dated December 13, In that decision, the Appeals Resolution Officer confirmed the denial of the worker s claim for initial entitlement to benefits for a low back injury that the worker related to the performance of her job duties. (ii) Issue [2] The worker is seeking initial entitlement to benefits for a low back injury that she believes is a disablement that resulted from the performance of her job duties. (iii) Background [3] The following are the basic facts. [4] The employer is a large retail store. [5] The now 48-year-old worker began working for the accident employer in March She moved from one community, where she was a customer service manager, to another where she stocked shelves on an overnight shift. [6] The employer s Report of Injury, which was dated October 2, 2012, said the worker reported on September 27, 2012: that she had been experiencing pain in her mid-lower back. She stated that she has been experiencing this pain after approximately 3 weeks of being in her new position, which would put the onset of pain in late May/12. [7] Dr. A. Kiellerman, who practises in a walk-in clinic, submitted a Health Professional s Report to the Board on September 27, Dr. Kiellerman reported that the worker had injuries to her upper and lower back. He diagnosed back pain with bulging disc. Dr. Kiellerman provided restrictions of no bending, twisting, climbing, or lifting. He anticipated that the restrictions would be in place for between eight and 14 days. [8] The Eligibility Adjudicator denied the worker s claim, on October 15, The reason for the denial was Dr. Kiellerman s report that the worker had a bulging disc. The Eligibility Adjudicator went on to say: in order to consider this diagnosis as work-related there needs to be a specific significant event/trauma, as you can have a disc bulge that is pre-existing but is not symptomatic; however, this does not mean the cause of the disc bulge is your work duties. [9] The worker appealed from that decision on February 11, [10] As was noted in section (i), Appeals Resolution Officer Jones denied the worker s appeal in her decision dated December 13, [11] The worker appealed to the Tribunal.

3 Page: 2 Decision No. 1537/16 (iv) Law and policy [12] Since the worker claimed to be injured in 2012, 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. [13] An accident is defined in section 2(1) to include: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment. [14] 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. [15] 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. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, apply to the subject matter of this appeal: Package #241 - Initial Entitlement Package #300 - Decision Making/Benefit of Doubt/Merits and Justice [17] The Panel considered these policies as necessary in deciding the issues in this appeal. [18] The Board s Operational Policy Manual, (OPM) Document No , Definition of Accident, describes a chance event as an identifiable unintended event which causes an injury, an injury itself is not a chance event. The policy defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. [19] OPM Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history. OPM Document No provides the following guidelines for determining proof of accident: Proof of accident Decision-makers may consider the following when examining proof of accident, Does an accident or disablement situation exist? Are there any witnesses? Are there discrepancies in the date of accident and the date the worker stopped working? Was there any delay in the onset of symptoms or in seeking health care attention?

4 Page: 3 Decision No. 1537/16 [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. (v) The worker's testimony [22] The worker confirmed that she was hired by the employer in She first worked as a cashier. She moved to the courtesy desk, then the layaway desk. She was customer service manager for 13 years. In that capacity she dealt with customer complaints and prepared the schedule for the cashiers lunches and breaks. She was at the front of the store where the cashiers were located but could be called anywhere in the store. She worked full time. Her jobs involved a lot of standing and walking. Her shifts were each eight hours. She moved to the community where she is now living for family reasons and asked the employer for a transfer. She did not remember the month in which she moved but thought it was in the spring or summer of She and her partner moved themselves with the assistance of friends and family. She did not remember whether she packed boxes, carried boxes, or unpacked boxes in her new home. [23] The worker said that the only available position with the employer in the community where she is now living was overnight stocker. She accepted that job and started work shortly after the move. She was not given any training. The manager told her what to do and she asked her coworkers when she was unsure about anything. She did she have a back support or brace. [24] The worker testified that she punched in at 11:00 p.m. There was a five-minute meeting with the overnight supervisor who assigned her to the aisles where she would be working. She did not work in the same aisles every night. Skids that were loaded with products were already on the floor, usually in a middle aisle. The skids were piled a little higher than her head (she is 5 4 tall) and were wrapped in plastic. She cut the wrap off and started unloading the skids. She had a two-level cart that was on wheels. She estimated that the cart was about 1½ feet wide and 5 feet long, and was on four wheels. The top shelf was shorter than the bottom one. She took boxes that weighed up to 50 pounds from the loaded skids and put them on her cart. She estimated that it took five minutes or a little longer to load the cart with stock. She then wheeled the cart to the aisle in which she was working and unloaded it, putting the boxes on the floor. She went back and forth with the cart until the skids were empty and all the stock was on the floor. That took between 30 and 45 minutes. Then she started ripping the boxes open and putting the products on the shelves. To do that, she had to move the products on the shelves to the front and put the fresh stock behind. She worked from the end of the aisle down. It took a couple of hours at least to stock each aisle. She moved the cart down the aisle, as she was stocking shelves. If she had more stock than was required, she picked the boxes up off the ground, put them on the cart, wheeled the cart back to where she originally got the products, took the boxes off and put them on the ground again. She commented that in the beginning she did not complete as many aisles as her coworkers. She said that she stocked a maximum of three aisles a night. At the end of the shift, she made sure that all the extra products were on the skid. She then got a pump truck and moved the skid back to the stockroom.

5 Page: 4 Decision No. 1537/16 [25] She worked in the chemical aisles. The biggest boxes she lifted contained bleach in onegallon jugs. Cases of liquid detergent were just as heavy. [26] It was the worker s evidence that she began to experience back pain about three weeks into the job. She described the pain as sharp and she felt it when she was lifting boxes. Since she was working at a new job, she thought her back would get better. She continued to work in pain. Eventually she told the supervisor and asked for a back brace. The supervisor said that the employer did not provide them. She went on to say that her job duties did not change after she told the supervisor of the injury. [27] Mr. Gordon pointed out that the employer s Report of Injury, which was dated October 2, 2012, said that the onset of the worker s pain was in late May The worker responded that seemed about right. [28] The worker could not remember the first time she saw a doctor about her back pain. She did not yet have a family physician so she went to a walk-in clinic, where she described the onset of pain. Later in her testimony, she said that her back pain caused her to be absent from work a couple of times but she always had a doctor s note when that happened. She acknowledged that she had a doctor s note for an absence on August 17, and 18, She did not remember if this was her first visit to a doctor because of her back pain. She commented that she returned to the city from which she moved to visit the family physician she had there. She did so because she could not take the pain anymore. Mr. Gordon referred the worker to clinical notes dated September 25, and October 16, These were prepared by Dr. D. Peterson, who was her family physician before her move. The worker thought that September 25, 2012 could have been her first appointment with Dr. Peterson after she moved. [29] The worker confirmed that the employer provided her with light job duties. Those job duties entailed pulling everything to the front of the shelves and checking expiry dates. She was still working an eight-hour night shift. [30] Mr. Consiglio directed the worker s attention to Dr. Kiellerman s September 27, 2012 report. He pointed out that Dr. Kiellerman diagnosed a bulging disc. The worker responded that she recalled having a CT scan but did not remember what she was told about the disc. She also commented that Dr. Peterson said the disc bulge was from repetitive lifting at work. [31] The worker said she did not have any back problems before She had no CT scans of her back before And, as she recalled, she performed modified job duties for about a month after reporting the injury. The work she performed was working in the employer s fitting rooms, folding clothes, and opening doors for customers. She had a chair and could use it as needed. She had good days and bad days and took Oxycodone 1 and Celebrex 2 as needed. [32] The worker stated that she has a new family physician in the community in which she now lives. She has been seeing him since about He has not referred her to a specialist but did refer her for massage therapy and he has been giving her acupuncture. She went on to say that she has been told she has a bulging disc in her back and she just has to live with it. She believed that the bulging disc was caused by repetitive heavy lifting. 1 Oxycodone is an opioid analgesic. 2 Celebrex is a non-steroidal anti-inflammatory medication.

6 Page: 5 Decision No. 1537/16 (vi) The submissions (a) Mr. Consiglio s submissions [33] Mr. Consiglio submitted that the disc bulge in the worker s back developed as a result of her work duties. He noted that the worker was a front-end supervisor for 15 years and that her job involved constant standing and walking. There was no suggestion that the worker had any problems with her back when she worked in that capacity. [34] Mr. Consiglio reviewed the worker s job duties as a night shift stocker, a job she performed without any training with respect to lifting and without the support of a back brace. He went through the worker s testimony with respect to the repetitive bending, stretching, lifting, twisting and turning required to stock shelves, and her testimony that she developed back pain within three weeks. He commented that the worker did not complain because she thought the pain was due to the new job demands. She continued to work but the pain did not go away. [35] Mr. Consiglio stated that the medical record was consistent with the history recounted by the worker. The CT scan and MRI confirmed that the worker had a disc bulge. [36] Mr. Consiglio commented that the Case Manager and the Appeals Resolution Officer denied the worker s claim because there was no traumatic event. He argued that the worker was subject to multiple traumas. She was not a large person and found everything she had to lift and move heavy. If she had a pre-existing condition, it was not symptomatic before she started working as a stocker. [37] Finally, Mr. Consiglio submitted that the medical opinion supported the worker s contention that the disc bulge was work-related. He asked that the Panel allow the worker initial entitlement to benefits. (b) Mr. Gordon s submissions [38] Mr. Gordon submitted that there were inconsistencies with respect to the worker s reporting of an injury. He noted that she claimed the onset was three weeks after she started working as a stocker. The initial medical attention might have been in August but was definitely in September. He stated that there was a large gap between the onset of the worker s back pain and her seeking of medical attention. [39] Mr. Gordon noted that the CT scan and MRI showed that the worker had a bulging disc in her back. He acknowledged that the job required physical activity. He asked the rhetorical question Did the activity cause the bulging disc? He argued that the worker s delay in seeking medical attention was problematic and made the matter of establishing causation difficult. [40] Mr. Gordon referred the Panel members to the following statement found in the Tribunal s Discussion Paper titled Low Back Pain : Disc bulges are common radiologic findings on an MRI or CT scan and are not caused by work injury. [41] Mr. Gordon submitted that the disc bulge was not related to the worker s employment. [42] Mr. Gordon stated that the worker was removed from the employment that she believed caused the problem. She was transferred to the day shift but her complaints have not resolved. He suggested this showed the condition of the worker s back was not related to her job duties.

7 Page: 6 Decision No. 1537/16 [43] Finally, Mr. Gordon stated that the boxes the worker was lifting weighed 16 kg or roughly 35 pounds. He argued that causation was not established and asked that the Panel deny the worker s appeal. (vii) Analysis [44] The worker was a credible witness and the Panel accepts her testimony with respect to the nature of her job duties. We note that the worker was small in stature and we accept her testimony with respect to the repetitive bending, twisting, and lifting required as an overnight stocker. Her explanation for not seeking immediate medical attention when the low back pain developed, i.e., she was new in the job and she thought the pain would resolve, was reasonable in the circumstances. [45] The medical record is sparse. There is a CT scan and an MRI report, both of which show that the worker had a disc protrusion at L5-S1. The Panel members find that this was a preexisting condition but we accept the worker s testimony that it was asymptomatic prior to May [46] The Panel reviewed the Tribunal Discussion Papers and found the following excerpts from the paper titled Low Back Pain particularly useful: 2. Are there any particular ergonomic risk factors in work related activities that would create an increased risk for back injuries? There is a lack of consistent high-level scientific evidence on this topic although some associations have been reported. These include: Prolonged static posture. Frequent or repetitive stretching to the end limit of range of motion or to beyond physiologic range of motion positions. Such movements can involve lifting from the floor or lifting to overhead, or using rotational force (i.e. twisting from side to side) while handling bulky or heavy objects. Lifting of heavy loads repeatedly. 9. Are there other conditions/diseases that would predispose someone to back injury? Yes. Recognizing that consistent high-level scientific evidence is currently lacking, most experts believe that some patients may be more vulnerable. Patients with degenerative disc disease, osteoporosis, inflammatory conditions (such as ankylosing spondylitis), and conditions affecting bone density and/or quality (i.e. osteoporosis, renal failure, etc.) may be at higher risk for back pain related injury. Relational causality needs to be individualized in these situations considering history, physical examination, as well as available radiologic imaging. Pregnancy has also been linked to an increased risk of back pain related symptoms, particularly in those individuals with a prior history of back pain. [47] The Panel members find that the worker s pre-existing mild disc bulge made her more vulnerable to injury. We also find that the repetitive lifting and twisting movements that she described in her testimony were a significant contributing factor to the development of her back pain. [48] The Board s Operational Policy Manual, Document No , titled Pre-existing Conditions provides the following guidance:

8 Page: 7 Decision No. 1537/16 Entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker s ongoing impairment. The thin skull and crumbling skull doctrines are well-established legal principles that are components of decision-making at the WSIB. [49] In this appeal, it is evident that the pre-existing disc bulge in the worker s back constituted a thin skull that was made symptomatic by the worker s job duties. [50] According to the Board s Operational Policy Manual, Document No , titled Aggravation, a worker is entitled to benefits for the consequences of an injury if the worker does not have a pre-existing impairment. The Document defines a Pre-accident impairment as: a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide. [51] The worker did not have a pre-accident impairment. She is entitled to benefits for her low back injury.

9 Page: 8 Decision No. 1537/16 DISPOSITION [52] The worker's appeal is allowed. [53] The worker has initial entitlement to benefits for her low back injury. [54] The Panel remits to the Board the determination of the nature and duration of benefits that flow from this decision, subject to the usual rights of appeal. DATED: August 10, 2016 SIGNED: S. J. Sutherland, A.D.G. Purdy, M. Ferrari