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1 SUMMARY Decision No. 1882/01 10-Sep-2001 J. Sajtos View Full Decision 9 Page(s) Keywords: Accident (occurrence) Continuing entitlement References: Act Citation WCA Other Case Reference [w4301]z Style of Cause:

2 2001 ONWSIAT 2639 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1882/01 [1] This appeal was heard in Toronto on July 11, 2001, by Tribunal Vice-Chair E.J. Sajtos. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer, dated April 26, That decision denied the worker lost time benefits beyond August 8, 1997, a Non-Economic Loss (NEL) award and a reconsideration of the accident date. [3] The worker attended and was represented by Mr. D. Marques, a consultant. The employer was notified and chose not to participate. THE RECORD [4] The Vice-Chair considered as evidence the Case Record, Addendum #1 and correspondence dated January 15, THE ISSUES [5] The Vice-Chair must determine whether the worker is entitled to the following: 1. A re-determination of his accident date from July 1997 to December Lost time benefits beyond August 8, A NEL award for a low back injury. THE REASONS (i) Background [6] The worker was employed with the accident employer as a welder from August 23, [7] In correspondence from the worker s representative to the Board, dated January 26, 1998, it was reported that the worker had had several accidents injuring his low back while working as a welder including sometime in 1996, while lifting metal frames. The worker had stopped working on July 23, 1997 and had been unable to return since that time. [8] In correspondence dated July 21, 1998, the Claims Adjudicator indicated that the worker s date of accident was considered to be July 23, 1997, as a result of a lifting incident at work. It was reported that the worker had a pre-existing low back problem and although it was alleged to have been work-related, no specific details were provided and there was no proof to establish work-relatedness. Therefore, entitlement was accepted on an aggravation basis only.

3 Page: 2 Decision No. 1882/01 [9] In correspondence dated March 16, 1999, a Senior Entitlement Adjudicator denied the worker s claim for benefits arising from a December 2, 1996 accident based on the following reasoning: Information on file does not indicate that an incident of December 2, 1996 was ever reported to anyone. Co-workers who were questioned, denied any knowledge of an accident involving the worker on December 2, The supervisor also denied any knowledge of an accident being reported on or around that time. While Dr. Decena s notes confirm that the injured worker was seen on December 2, 1996 for low back pain there was no reporting to the doctor of an accident history associated with the onset of back pain. [10] The Appeals Resolution Officer, in his decision of April 26, 2000, denied the worker s request for a reconsideration of his accident date given the lack of reporting, lack of witness support and lack of medical support. The worker s request for benefits beyond August 8, 1997 was also denied due to a lack of objective evidence supporting the inability to perform pre-accident duties. With regard to a NEL award, the Appeals Resolution Officer stated that the accident of July 23, 1997 did not result in a permanent aggravation of the worker s pre-existing back condition. (ii) Law and policy [11] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 took effect. However, pursuant to section 102 of that Act, the Workers Compensation Act, continues to apply to pre-1998 injuries. Thus the pre-1985 Act, pre-1989 Act and pre-1997 Act continue to apply, as amended by the Workplace Safety and Insurance Act, [12] Pursuant to sections 112 and 126 of the Workplace Safety and Insurance Act, 1997 the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the Workplace Safety and Insurance Act, 1997 section 126, the Board has identified certain policies applicable to this appeal. The policies have been considered as necessary in deciding this appeal. (iii) The Vice-Chair s reasons (a) Reconsideration of the accident date [13] The worker testified that prior to working with the accident employer, he did not have any back pain or difficulties. On December 2, 1996, he was welding frames, which were larger than usual. He stated that each individual frame weighed between 50 to 100 lbs. Upon completing a frame, he lifted it and placed it on a skid. While lifting one of the frames, he felt a sharp pain in his back. The worker was treated by Dr. Decena. [14] In clinical notes from Dr. Decena, dated December 2, 1996, it indicates that the worker complained of low back pain more on the right than the left side. He was diagnosed with a lumbar strain but no mention was made of the cause of the strain. X-rays were performed on December 16, 1996 and the lumbar spine, sacrum and coccyx were found to be normal.

4 Page: 3 Decision No. 1882/01 [15] The worker stated that he returned to work and then told his employer that he had suffered an injury at work and requested modified duties. He was initially given light work but was then told that he was required to go back to his regular duties, which he continued until the plant was closed for a Christmas break from December 24, 1996 to January 3, During this break, the worker stated that he had ongoing back pain and used a hot pad to alleviate his discomfort. [16] In a Physiotherapy Report dated January 23, 1997, it was noted that the worker stated that he had back pain for approximately eight weeks, however, no mention is made of a workplace injury. [17] In a report dated February 11, 1997, Dr. McDonald, an orthopaedic surgeon stated that the worker was seen with respect to pain in his low back, which had been present for approximately three months. The pain had come on gradually and there was no history of injury, although the patient thinks he might have lifted something at work. The doctor diagnosed the worker with chronic low back pain probably due to disc disease at the lumbosacral levels. [18] The worker testified that due to his ongoing back pain, he was forced to take off eight days of work in March When asked about the slip and fall incident recorded by his physician in January 1997, he stated that he was getting off a bus when he slipped. According to the worker, the injury was not severe and he did not go to see a physician that same day but was able to continue working. [19] Upon his return to work in March 1997, the worker stated that when he returned, he was in a great deal of discomfort. His testimony was that he was forced to work because he was the sole supporter of his spouse and child. [20] On July 23, 1997, the worker stopped working due to extreme pain. He stated that he had been welding larger frames for several days and the lifting caused extreme discomfort. The employer was very busy during this time and he did not have an assistant, which made his work more difficult. The worker stated that he then went to see Dr. Darma. [21] In a report dated October 23, 1997, Dr. Darma, a family physician provided the following information: January 22, 1997, on this day the patient was walking on the street going to the bus, fell on his lower back on to the ice. Lumbar spine stiff, bending restricted 40%, reclination approximately 30%, rotation restricted in both directions slightly with lots of pain at the ends, lower paraspinal muscle spasm, reflex of lower extremities within normal. He also saw Dr. G. McDonald, an orthopaedic surgeon. Treatment 1. Rest 2. Painkillers and muscle relaxer, Robaxasol 3. Physiotherapy Estimation to return to work is difficult to tell in advance until the patient has engaged in physiotherapy for some time.

5 Page: 4 Decision No. 1882/01 February 5, 1997, patient told me that he went on his own to Roncesvalles Injury Rehab Centre everyday for physiotherapy. He was also booked to see Dr. McDonald for February 11, February 11, 1997, patient was seen by Dr. McDonald, he had forgotten to tell the doctor about his low back injury, however, he did mention about the pain in both feet not related to the accident. So I advised him to return to Dr. McDonald. March 6, 1997 patient returned to work on his own accord without full recovery because he worried he might lose his job. March 12, 1997, patient was scheduled for a bone scan by Dr. McDonald in St. Joseph Hospital. July 3, 1997, he complained of low back pain and during examination there were two lumps in the right abdominal wall. One was in the front and the other in the back on the same side. The lump in the back was painful and also when he bent, it precipitated the pain in the back more to the right so I scheduled him to see Dr. T. Harmantas a surgeon on July 23, 1997 and Dr. McDonald July 15, On July 23, 1997, the worker was making frames at work. He complained of lower back pain. He went to work on his own and at work the back pain got worse. Examination: stiff low back pain, bending restricted about 40%, reclination 35% and rotation bilateral movement with lots of pain. All motielities (sic) in the lower back are less about 35% in all directions. July 29, 1997 seen by Dr. Kwok, an orthopaedic surgeon. Dr. Kwok ordered physiotherapy but patient unable to proceed because of the lump in the lower back that was so painful. The worker was given an appointment for August 20, 1997 for another assessment. August 6, 1997 patient had surgery for the lumps. August 19, 1997, the worker complained of lower back pain and examination of the back like previous one (July 23, 1997). Patient was unable to lift or push heavy objects that weighed more than 10 pounds. September 12, Patient got letter from Dr. Harmantas to stay home for awhile and advised to keep the wound dry and clean. You received the letter from Dr. Harmantas regarding disability of this patient for some time. October 1, 1997 seen by Dr. Harmantas, wound healing well. Patient was also scheduled to start physiotherapy October 3, Patient is going to return to see Dr. Kwok for assessment as soon as (sic) and he is still taking physiotherapy to present (everyday) October 28, 1997 examination revealed no significant difference compared with examination on July 23, [22] In a report from Dr. Kwok, dated November 6, 1997 it was noted that the worker indicated that he had injured his back in February 1997 when he was working quite hard. In July 1997, the pain became worse and he had to stop working. A CT scan demonstrated degenerative changes but no disc herniation. Dr. Kwok diagnosed the worker with mechanical low back pain. [23] Dr. Filsoofi, a chiropractor, in a report of January 16, 1998 reported that the worker had back pain, which commenced in July 1997.

6 Page: 5 Decision No. 1882/01 [24] In the Worker s Report of Injury, dated February 11, 1998, the date of injury is reported as July 24, The Employer s Report of Injury indicates that the injury was July 24, 1997 as well. [25] In a report from Dr. Qaadri, a family physician, dated March 2, 1998, it is noted that the worker had a prior history of back pain from March [26] In a report from a Board Investigator, dated November 18, 1998, the worker s supervisor stated that the worker had taken time from work as a result of back pain and it was only when he returned to work that he told the employer that it was due to his employment. The president of the company was interviewed on November 23, 1998 and he stated that he was unable to locate any documented proof of an accident in December 1996; however, the worker had been off work from February 9 to 15, 1997 and for the week of February 16 to 27, he lost 15 hours of work. A co-worker stated that she saw the worker on a daily basis and the first time that she became aware of back pain was in July She did not recall the worker complaining about back discomfort prior to that date. A second co-worker also did not recall any accident in December 1996, however, he did remember the worker complaining of back pain but did not know the dates of these complaints. A third co-worker, who also acted on occasion as the worker s supervisor, indicated that he was aware of the worker s ongoing complaints of back pain when making frames but there was no specific accident reported. [27] The worker, who had not been born and raised in Canada, testified that he did not know about Workers Compensation benefits and therefore was not aware that he was to apply for them in the event of a workplace accident. It was not until a co-worker told him in July 1997 that he should apply that he did so. According to the worker, when he told his employer in July 1997 that he wished to apply for compensation, the accident employer stated that he had not had an accident and therefore did not qualify for compensation. [28] The Vice-Chair has carefully reviewed the totality of the evidence and is not persuaded that the worker suffered from a workplace accident in December I note that a physician, Dr. Decena treated the worker on December 2, 1996 and no mention is made in the clinical notes of a lifting incident at work. In addition, the physician did not forward a report of accident to the Board. When seen by Dr. McDonald on February 11, 1997, the worker indicated that there was no history of an injury although the patient thinks he may have lifted something at work. Dr. McDonald does not mention the non-compensable slip and fall of January 22, 1997 and it is not clear if he was aware of this incident when he assessed the worker. When the worker received physiotherapy in January 1997, he did not connect his back pain to his work duties or a specific incident. [29] When questioned about the slip and fall, the worker stated that the fall was minor and did not result in any ongoing injuries. The worker s testimony on this point is not consistent with the evidence of Dr. Darma, who noted that the worker had a restricted range of motion and was prescribed medication and physiotherapy. The physician also states that the worker lost some time from work as a result of the non-compensable injury. The employer noted that the worker lost seven of days of work in February 1997 and no claim for injury was reported. I am not persuaded by the worker s evidence that the slip and fall was minor in nature and that he suffered a greater disability as a result of a workplace accident on December 2, I also note that

7 Page: 6 Decision No. 1882/01 none of the worker s co-workers or the accident employer were aware of a December 1996 injury. [30] Based on the totality of the evidence, the Vice-Chair is unable to conclude that the worker suffered a workplace injury in December (b) Lost time benefits and NEL award [31] The worker was granted benefits based on an acute aggravation of a pre-existing condition from July 23, 1997 until August 8, [32] In a report from Dr. Kwok, an orthopaedic surgeon, dated July 29, 1997, it was noted that the worker complained of back pain due to hard work welding for several days. It was concluded that the worker had a soft tissue injury. [33] The Vice-Chair notes that the worker had surgery on August 6, 1997 for a noncompensable condition. Dr. Harmantas, the surgeon, did not provide any reports to the Board with respect to this condition. [34] On August 20, 1997, Dr. Kwok stated that the worker continued to experience back pain and that he had been off work since July 24, A CT scan, which had been performed in March of 1997, indicated that the worker had degenerative changes with no evidence of a disc herniation. Physiotherapy was prescribed. [35] In a Physiotherapy Report from the Sports Medicine and Rehabilitation Clinic dated October 6, 1997, it is noted that the worker was reassessed on October 3, 1997, as he had had two cysts removed surgically and stated he was unable to exercise until he healed. The worker was diagnosed with mechanical low back pain and weakness in the upper and lower body. [36] In a physiotherapy handwritten report dated November 5, 1997, it was noted that the employer had been contacted and that modified duties were available. However, the worker stated that the company would say they would accommodate him with modified duties but that he felt that they would be unable to do so. [37] On November 6, 1997, Dr. Kwok noted that the worker had been working quite hard in February 1997 when he injured his back. According to the doctor, the pain had become much worse in July 1997 and the worker had to stop working. In August 1997, the worker had undergone surgery to remove lipomas from his right flank and right low back. The worker commenced physiotherapy in October 1997, however, he had not attended treatments last week due to pain. The worker was found to be tender in his low back area, which was diagnosed as mechanical in origin. [38] In a report dated November 6, 1997 from Canada Life Insurance, the following information is indicated: We have contacted your physiotherapist at Sports Medicine and Rehabilitation Clinic regarding your progress. We were informed that you have not been attending regularly and that you have been encouraged several times to attempt a return to work on modified duties. We then contacted your employer to see if modified duties were available to you,

8 Page: 7 Decision No. 1882/01 we were informed that there are modified duties available for you in accommodation with regards to low back pain. [39] In a Physiotherapy Report dated November 17, 1997, it was noted that the worker continued to remain symptomatic with low back pain and there was minimal subjective and objective improvement. [40] In a Bone Scan report dated November 19, 1997, it was found that the worker s low back was normal. [41] In a report of January 28, 1998, a neurologist, Dr. Dhanani reported that the worker had back pain since December 1996 and had been unable to work since July 24, The pain had increased in the last two weeks and was radiating along the posterior aspect of his right leg. The worker ingested the occasional Tylenol #2 but no other medication. He had a relatively good range of lumbosacral spine movement and electrical studies did not reveal any significant neuromuscular abnormality with no evidence of radiculopathy or peripheral nerve entrapment. The doctor concluded that the worker s back pain was predominantly mechanical in nature with no significant sign of nerve root irritation. [42] The worker testified that he was terminated from his employment in August [43] Dr. Shapiro, a Board Unit Medical Adviser, in a memorandum dated February 25, 1999 stated that the objective clinical findings suggested that the worker had returned to his pre-accident state by August 8, [44] The Vice-Chair is unable to find any medical reports that specifically refer to August 8, 1997 and it is not clear why the Unit Medical Adviser chose this date. I note that the worker had non-compensable surgery on August 6, Subsequent to his surgery, he received ongoing physiotherapy for his low back pain and was assessed by several specialists. The worker s physiotherapist was of the view that the worker was capable of performing modified duties on November 5, The worker told the physiotherapist that he did not feel that the company would provide him with modified duties although they had indicated to the physiotherapist that they were prepared to do so. When asked about this notation, the worker testified that he did not remember saying that the company would not do this. [45] Based on the totality of the medical evidence, the Vice-Chair is persuaded that the worker returned to his pre-accident state by November 5, 1997 and is to be granted temporary total disability benefits until that date. As this was an acute aggravation of his pre-existing condition, the worker is not entitled to a NEL assessment. THE DECISION [46] The worker s appeal is allowed in part: 1. The worker s reconsideration of the date of accident is denied. 2. The worker is entitled to temporary total disability benefits until November 6, The worker is not entitled to a NEL assessment.

9 Page: 8 Decision No. 1882/01 DATED: September 10, 2001 SIGNED: E.J. Sajtos