WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 898/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 898/15 BEFORE: M.C. Smith : Vice-Chair J. Blogg : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: May 6, 2015 at Toronto Oral DATE OF DECISION: June 4, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1228 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 6, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Ms. C. Eve, Office of the Worker Adviser Not participating Not Applicable 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. 898/15 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) Mr. S. Vagadia, dated March 6, The worker was represented by Ms. Christie Eve, of the Office of the Worker Adviser. The employer did not participate in the hearing. Oral evidence was heard from the worker. Submissions were made by Ms. Eve. (ii) The issue [2] The worker is seeking initial entitlement for a low back condition, which he attributes to his job duties as a fuel delivery truck driver. (iii) Background [3] This now 42-year-old fuel delivery truck driver began working for the accident employer in [4] On July 18, 2011 the worker was awoken in the middle of the night with severe low back pain. He claimed entitlement for the low back on a disablement basis, on the grounds that his condition had been caused by his physically demanding job duties. In a Worker s Report of Injury/Disease (Form 6) dated August 18, 2011, the worker reported that he had experienced instantaneous pain in his low back and left thigh in the early morning hours of July 18, He opined that the pain had resulted from gradual wear and tear due to repetitive stress associated with his job, which involved sitting, lifting, and bending. [5] In a decision dated August 23, 2011 the Eligibility Adjudicator (EA) denied entitlement, noting that the onset of back pain had occurred at home, and that there did not appear to be a causal link between the worker s impairment and his job duties. [6] In a reconsideration decision dated March 7, 2012, the EA confirmed the denial of entitlement, finding that the worker had a non-work-related degenerative condition. [7] The denial of entitlement was confirmed by the ARO in a decision dated March 6, The worker now brings his appeal for low back entitlement to the Tribunal. (iv) Relevant law and policy [8] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to section 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and we have considered them as necessary. (v) The worker s testimony [9] At the hearing, the worker provided the following evidence: The company for which he worked was owned by his in-laws. His job as a fuel-delivery truck driver involved loading and driving an 18-foot tanker trailer, and delivering fuel to gas stations. The job duties were strenuous, and involved heavy lifting,

3 Page: 2 Decision No. 898/15 bending, kneeling, and prolonged sitting. A detailed description of the duties is provided in the ARO report of March 6, He has been attending a chiropractor since he began long-haul driving. He denied having any back pain, and testified that the chiropractic treatment was for preventive maintenance. In February 2011 he had slipped and fallen on a patch of ice while working, and had landed on his left side. His employer, who is his father-in-law, asked him not to put in a claim. The worker laid off work for 2 days, iced his back, and took Advil. He then returned to half-time shifts for a week. He did not seek any medical help. His last three days of work (July 14, 15, and 16, 2011) had been very busy, with deliveries at 6-7 stations each day. Each delivery involved loading and unloading, which was very strenuous. He worked from 12 to 14 hours per day, which was typical for his summer work schedule. On July 16, 2011, his last day of work, he worked 14 ½ hours and went home in the late afternoon. He was feeling fine, and barbecued dinner for his family and then watched a baseball game. At about 4 a.m. on July 18, 2011 the worker was wakened by severe low back pain like a knife. He attended an after-hours clinic the next day, and was diagnosed with a pinched nerve. He then went to see his family doctor, who questioned the diagnosis. The family doctor prescribed pain medication, and recommended that he have an MRI. Prior to July 18, 2011, he had not had any back pain, only some occasional muscle ache. After that day, he was in severe pain for four months. He now has ongoing low back pain, for which he takes medication. He returned to work in August 2013 as a truck dispatcher with a different employer. [10] We note that this testimony differs in several ways from the testimony provided by the worker at the ARO hearing of January 30, 2013: 1. At the ARO hearing, the worker testified that he had begun to experience back pain in February There was no mention of a slip and fall accident. At the Tribunal hearing, the worker testified that he had fallen on ice in February 2011, but had not wished to put in a claim: The worker indicated his back pain began in February of He did not think much of the pain at first. He stated he was seeing a chiropractor on a regular basis at the time. He did not see his family doctor and managed by taking a day off from work here and there. 2. At the Tribunal hearing, the worker testified that he had not had any pain prior to July 18, The worker told the ARO he had been experiencing pain from mid- May 2011, and that he had been in agony by June 2011: The worker stated that he worked an average of 42 to 45 hours per week. In mid-may of 2011 a co-worker went on vacation. This was the start of their busy season and his hours at work increased to 55 to 60 hours per week. He worked 6 out of 7 days.

4 Page: 3 Decision No. 898/15 The worker continued to work those hours until his accident on July 18, He stated he would come home sore and in a lot of pain. He tried to relieve his pain with hot showers/baths. The worker indicated he was in agony by June of But he stated he was taught, "If it ain't broke, don't fix it." 3. The worker s description of the experience of pain on July 16, 2011 was different at the ARO hearing and at the Tribunal hearing. At the Tribunal hearing, he testified that he had been fine when he came home from work, and was able to barbeque the dinner. At the ARO hearing he testified that he had been in severe pain when he got home: The worker testified that his last day worked was July 16, He worked 15 hours that day and stated the pain almost brought him to tears. When he got home, he ate dinner, had a bath, and then went straight to bed. He also took Robaxacet, an over the counter pain medication. July 17, 2011 was a scheduled day off, as he had "maxed out" his log book hours. The worker was scheduled to work July 18, The worker indicated that when he rolled over in bed at about 3 in the morning on July 18, 2011 he screamed in pain. It was like someone was stabbing him in the back. (vi) Submissions of the worker s representative [11] Ms. Eve noted that the worker s last three days of work had been especially heavy. She argued that the work duties were a significant contributing factor to the low back pain, even though the onset of pain had occurred at home. (vii) The medical evidence 1. Evidence of prior low back problems [12] The worker has had 2 prior claims for a low back injury with other employers: On November 17, 1994, he experienced low back pain after bending to stock four shoe boxes on a shelf. The diagnosis was muscular low back pain. Dr. Biard, the worker s family doctor, completed a Physician s Progress Report (Form 26), in which he opined due to nature of back injury, I wouldn t be surprised if he hurt his back again. The worker laid off work, returning to modified duties and hours on December 19, On June 24, 1998 the worker experienced low back pain when he bent over at work to tighten a bolt on a fixture. It was reported as muscle strain or back spasm. He laid off work for 2 ½ days, and was on light duty for about 2 weeks. [13] At the hearing, the worker testified that he has been attending a chiropractor for many years for adjustments to his entire spine. 2. The present claim [14] On August 20, 2011 the worker s family doctor, Dr. J. Tamale, completed a Health Professional s Report (Form 8), indicating that the worker had a repetitive strain injury to the lumbar spine. The worker was referred for an MRI.

5 Page: 4 Decision No. 898/15 [15] An MRI on September 17, 2011 revealed disc desiccation and facet arthropathy at multiple levels. A possible small disc protrusion was noted at L4-5. [16] On November 23, 2011 the worker attended Dr. R.B. Dunlop, an orthopaedic surgeon. The doctor reviewed the MRI, and opined that the worker s symptoms were not a perfect fit with the left-sided L4-5 disc protrusion seen on the MRI. The doctor reported that the worker's condition was improving, but that he still had difficulty with sleeping, bending, lifting, and prolonged standing. Additional physiotherapy treatment was recommended as well as an EMG if the worker's symptoms did not settle. [17] A second MRI on January 8, 2012, revealed a possible small herniation at L3-4. There was also evidence of mild facet osteoarthritis (OA) at multiple levels. [18] On January 18, 2012 the worker attended another specialist, Dr. C. Ballyk. The doctor reported that the results of an EMG were within normal limits, and that the worker's pain was improving. (viii) Analysis [19] The worker is claiming entitlement for a low back condition on a gradual onset disablement basis. Board Operational Policy Manual (OPM) Document No defines disablement as: An unexpected result of work duties A condition that gradually emerges over time as a result of the work duties [20] The issue is whether the worker s job duties were a significant contributing factor to the sudden onset of pain in July After a careful review of all the evidence, we find that they were not, for the following reasons: The medical evidence indicates that the worker has a pre-existing degenerative condition in his lumbar spine. An MRI on September 17, 2011 revealed disc desiccation and facet arthropathy at multiple levels. A second MRI on January 8, 2012, revealed mild facet OA at multiple levels. Although the MRI indicated a possible small disc protrusion at L4-5, Dr. Dunlop, an orthopaedic surgeon, opined that the worker s symptoms were not a perfect fit with the left-sided L4-5 disc protrusion seen on the MRI. He has been experiencing low back pain for many years, as attested to by his regular attendance at a chiropractor. Although the worker testified that he went to the chiropractor purely for preventative maintenance, we find it unlikely that he would have been seeking such treatment if his back had been totally asymptomatic. The long hours which the worker worked on the last three days of work were typical of the hours which he typically worked during the summer. They were not indicative of a change in his normal work routine. The worker testified that other than the occasional muscle ache, he had been able to continue working without pain until July 18, The worker testified that he had not experienced any pain after work on July 16, 2011, and had been able to barbeque dinner and carry on with his normal

6 Page: 5 Decision No. 898/15 schedule. The onset of pain did not occur until the morning of July 18, 2011, a day and a half after leaving work. [21] In conclusion, the worker has a pre-existing back condition which was not asymptomatic. He has OA at multiple levels of his spine, and has been receiving chiropractor treatment for his back for many years. At the hearing he testified that he had not had any pain while he was working, and did not experience any pain when he left work on July 16, The sudden onset of low back pain occurred a day and a half after completing work. In light of these facts, we are not persuaded that the onset of pain in bed in the early morning hours of July 18, 2011 was causally related to the work he had been doing during the prior week. Consequently, entitlement for the low back is denied.

7 Page: 6 Decision No. 898/15 DISPOSITION [22] The appeal is denied. Entitlement for a low back condition on a disablement basis is denied. DATED: June 4, 2015 SIGNED: M.C. Smith, J. Blogg, K. Hoskin