WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 663/11

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 663/11 BEFORE: M. Crystal : Vice-Chair HEARING: April 4, 2011 at Sudbury Oral hearing DATE OF DECISION: April 21, 2011 NEUTRAL CITATION: 2011 ONWSIAT 947 DECISION UNDER APPEAL: WSIB ARO decision dated October 21, 2009 APPEARANCES: For the worker: For the employer: Ms. Susan Hart, Office of the Worker Adviser In-house representative 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. 663/11 REASONS (i) Introduction [1] This appeal was heard in Sudbury, on April 4, The worker appeals the decision of Appeals Resolution Officer (ARO) C. Anzil, dated October 21, That decision determined that the worker did not have initial entitlement to benefits for an injury to the low back. [2] The worker appeared and was represented by Ms. Susan Hart, Office of the Worker Adviser. The employer participated in the appeal, and was represented by an in-house representative, the company s controller. The worker and a witness who was the worker s coworker at or about the time of the worker s injury as alleged, both testified at the appeal hearing. Submissions were provided by Ms. Hart and the employer s in-house representative. (ii) The issue on appeal [3] The sole issue to be determined in this appeal is whether the worker has initial entitlement to benefits for a low back injury arising in the course of his employment. (iii) The evidence [4] At the hearing, the worker testified that he injured his low back as a result of his employment duties with the accident employer, a drilling and blasting contractor, on the basis of a gradual onset, or disablement injury, and also due to a specific event that occurred in or about November [5] The worker filed a Worker s Report of Injury (Form 6), dated May 11, 2007 with the Board, which indicated that the worker was employed by the accident employer as a Foreman Drill & Blasting having been hired by the employer on January 2, 2000, although other information included in the case materials indicated that, in fact, he had been hired by the employer on January 8, At the hearing, the worker confirmed that he began his employment in January The worker was 39 years old as of the date of the appeal hearing. [6] The Form 6 stated that the worker sustained an injury to his back on November 14, 2006, and that he reported it to the employer on the next day. The Form 6 also stated, however that the worker s injury occurred over years on job site. It stated that the worker sustained an injury to his low back, as well as to his left foot and left toes, and that he had undergone back surgery. The form also stated in part: If you had a gradual onset type of injury, describe your injury, the work that you do and what you believe caused your injury Over years loading drilled holes in rock, loading with heavy 2 rubber hose lowering to 60 + foot holes and physically pulling up while liquid emulsion is pumped. Complained hoses too big for years. When did you first start to have problems with this injury Summer of 2003 If you did not report this to your employer right away, please tell us the reason why.

3 Page: 2 Decision No. 663/11 Unfortunately to protect my job. They said they would take care of me. 3 months after operation they laid me off. [7] At the hearing, the worker testified that a significant element of his employment duties with the accident employer was to fill holes which had been previously drilled with explosives for the purpose of blasting quarries, or other areas that required blasting for construction or other purposes. He testified that, beginning in or about 2003, the employer began to use a new method for loading explosives, which he performed, and which he alleged caused him to sustain an injury to his low back. [8] The worker described the method of loading explosives used by the employer in detail. He testified that before explosives were loaded, holes had to be drilled into the rock in the area to be blasted. He noted that the holes were drilled in a grid which was strategically laid out over the area so that the extent and effect of the blast would have occurred as intended. He stated that an area to be blasted would be drilled with as many as 300 holes. He noted that if the holes were not properly located, or if the explosives in one or more of the holes drilled did not detonate, it could have the effect of causing flying rock to escape beyond the intended area, causing damage or injury in the adjacent areas, or alternatively to have an incomplete blast, which could hinder subsequent excavation. [9] The worker testified that the holes were first loaded with a single explosive, a stick of dynamite which was attached to a blasting cap. He described the blasting cap as a long, thin (about ¼ to ½ inch in diameter) flexible tube, which was lowered into each hole with the dynamite. He noted that the blasting cap had to be a few feet longer than the depth of the hole, and that the holes might be anywhere from about 8 to 80 feet deep. When the holes were loaded with the dynamite and the blasting caps, a length of the blasting cap was left protruding from the top of the hole. Ultimately, these protruding ends of the blasting caps would be linked to one another prior to detonation, however the linking of the caps was one of the final steps in the process prior to detonation. [10] The worker testified that after the holes had been loaded with the dynamite and blasting caps, the holes were filled with a liquid explosive emulsion. Loading the emulsion was performed with a fuel hose, which had an inside diameter of two inches, and which was attached to a pumper truck, similar to the type of truck that delivers heating fuel oil to residences. The worker noted that, for each hole, the hose had to be lowered to the bottom of the hole before the emulsion could be pumped from the truck. He testified that there was no nozzle on the end of the hose. He stated that after the hose had been lowered to the bottom of the hole (and in the case of a deep hole, this could be more than 60 feet), a signal was given to the driver/operator of the truck, to begin pumping the emulsion. [11] The worker testified that once the emulsion started filling the hole from the bottom, the hose had to be gradually pulled up from the hole, so that the hole would be filled from the bottom up. He noted that at times, this could be difficult because the hose could become jammed in the hole, particularly if loose rock around the hole fell into the hole during the loading process. He stated that if the hose became jammed, a signal would be given to the driver operator to stop pumping the emulsion, and that in any event, in the case of a jam, the pump would ultimately stop automatically, due to back up pressure. The worker also noted that if there was to be a pause in the pumping, it had to be a relatively brief pause, because a thin film of water around

4 Page: 3 Decision No. 663/11 the inner surface of the hose was being pumped from the truck with the emulsion, to act as a lubricant as the emulsion travelled through the hose. He stated that a pause in pumping of more than a few minutes would prevent this lubrication process from working properly. [12] The worker testified that if the hose became irretrievably jammed in a hole, the hose had to be cut. He stated that cutting the hose was problematic because, in addition to the issue of waste, when the hose was cut, the subject hole would not detonate, and it had to be abandoned. This was a problem because, as noted above, the grid of the holes over the area to be blasted had been drilled strategically to ensure that the scope of the blast was as intended. If some of the holes did not detonate because the hose had to be cut when the hole was being loaded, this could have a negative effect upon the contractor s ability to control the blast. This negative effect could be exacerbated if the position of the hole in question had particular strategic value in relation to the overall control of the blast. [13] The worker also stated that, in the ordinary course, where a hole was being loaded with emulsion without a jam, a signal would be given to the driver/operator to stop pumping the emulsion before the emulsion filled the hole to the top, and that about the top four or five feet of the hole was left empty. This unloaded top portion of the hole, was referred to as the collar. [14] The worker testified that his work for the employer sometimes also involved nonphysical work, such as advising on the grid for the holes, and making calls to ensure that local people and authorities were advised of blasting that was to occur, so that precautionary measures could be taken. He also stated straightforward drilling could be performed in an upright posture, and that this type of drilling was not physically difficult for him. He stated, however, that the procedure for filling holes that was used by the employer beginning in or about 2003, as described above, was hard on his back because it required him to be in a bent posture over the holes. He stated that, in particular, pulling up the hose while in a bent posture and pulling forcefully on the hose when it became jammed was particularly hard on his back. [15] The worker testified about a job he was performing at a particular quarry site ( the GR site ) in or about the first week in November He noted that it was a controlled blast that was occurring in an elevated area. He stated that buildings were located nearby, and that it was important to control the area of the blast. He also noted that it was the opening blast for the site. He stated that for these reasons, the holes that needed to be loaded were drilled closer to one another, and that the holes had been drilled four inches in diameter, which was smaller than holes that were typically used. He stated that about 300 holes needed to be loaded. The worker noted that although an excavator had been through the area to clear the area of loose rock, there was still a significant amount of loose rock, which might cause the hose to jam as the holes were being loaded with explosive. The worker testified that when he was inspecting the area before he began loading the holes, he commented to a co-worker that the site was a jackpot. The worker explained that, by this, he meant that he expected that problems might be encountered while loading the holes with explosive. He also testified that he was performing the task of loading the holes without a helper, because the individual who was his helper was called away to undergo a random drug test, as required by the employer. [16] The worker testified that he began loading the holes, and that he had loaded most of the holes when he had difficulty with one particular hole. He stated that as he was pulling the hose

5 Page: 4 Decision No. 663/11 up from the hole it became jammed. The worker testified that this was one of the last holes to be loaded, and that its position in the corner of the blast area, made it strategically important to successfully controlling the blast. The worker testified that as he trying to free the jammed hose, he was pulling on it with all of his strength, when he experienced a sharp acute pain in his low back. He stated that he dropped the hose and that his knees buckled, although he did not think that he fell to the ground. He testified that he signalled to the driver/operator to stop pumping. The worker stated that he then walked to his own vehicle, where he rested and made some calls to local people and authorities, who had been previously advised of the planned blast, to advise that there would be a delay in the timing of the blast. The worker testified that the remaining holes were loaded by another foreman, and that the blast was detonated later that day. He stated that after the blast, he drove about three hours to go home. [17] The worker s co-worker at the GR site, the driver/operator of the pump truck (the driver) testified at the hearing. He testified that during the time that the worker was loading the holes, he kept the worker in his plain view, given that he needed to see him in order to observe his signals to start or stop the pumping of the emulsion. He stated that the GR site was a dirty cut, with uneven ground, and chip rock scattered over the area. He indicated that this type of rock was likely to cause a problem with the hose jamming, as it was being pulled up from the holes. He also noted that the worker was working alone because his helper had been called away for a random drug test. The driver also noted that the holes at the GR site were small holes, and that smaller holes were more likely to jam. [18] The driver stated that, at a point when the worker was almost finished loading all of the holes, he saw him having a problem with the hose jamming in a hole. He stated that he saw the worker reefing or pulling very hard on the hose, and that he subsequently saw the worker s knees buckle, that the worker signalled him to stop pumping and that the worker put down the hose. The driver stated that from his observation of the worker, he could tell that the worker had hurt himself while trying to pull out the jammed hose. He stated that when the worker stopped loading the holes, there were still a few holes left to load. He stated that another foreman subsequently played with the jammed hose and was able to pull it from the hole without cutting the hose. He stated that the other foreman completed loading the few remaining holes. [19] The worker testified that he believed that the incident, described above, at the GR site, occurred on a Friday. He stated that he was separated from his wife at the time, and that he spent the weekend with his sons. He stated that he could not recall exactly what he did with his sons that weekend, but that he believed that he probably watched movies on TV with his sons, and laid on his couch for most of the weekend. The worker stated that his back pain persisted over the weekend, and that he saw his family physician, Dr. Alan R. Vance, on November 10, He stated that he told his supervisor at work that he was seeing the doctor and would not be reporting for work. [20] The case materials included a radiology report, dated November 10, 2006, on x-rays of the worker s lumbar spine. The report stated that x-rays demonstrated disc space narrowing at the L4-5 and L5-S1 levels, but that otherwise, the x-rays were unremarkable. The report concluded that the worker had degenerative disc disease (DDD) at the L4-5 and L5-S1 levels.

6 Page: 5 Decision No. 663/11 [21] The worker testified that Dr. Vance prescribed physiotherapy for him. The case materials included clinical notes prepared by the worker s physiotherapist, R. Prichard, which indicated that she saw him on November 14, 15, and 16, The notes indicated that the worker was assessed on November 14, The notes made on November 15 and 16, indicated that that the worker had difficulty centralizing, that his foot was numb, ankle jerk was absent, dorsiflexion and plantar flexion were weak and a disc herniation was probable. The entry in the notes for November 17, 2006, indicated that the worker had called to say that he would not be able to attend his appointment, that his foot was numb and that he was not able to move it. The notes indicated that the worker was advised to see a doctor as soon as possible, and if necessary, to attend at the emergency department of a hospital. A further entry for November 21, 2006, indicated that the physiotherapist had called the worker, that he had been to the emergency departments at hospitals in both Sudbury and Parry Sound, that he had been diagnosed with a herniated disc and that he had an appointment to see Dr. Andrew Adegbite, neurosurgeon, on November 24, [22] The worker testified that following the incident at the GR site, he was off work for about one week due to his back pain, but that he subsequently returned to work. He stated that after returning to work, he performed work in which he was supervising others, and that he was not performing physical work. He stated that about a week or so after returning to work in this capacity, he attended the emergency department at a hospital in Sudbury, where he was advised that he needed a CT or MRI scan, but that he would have to wait before he could obtain this type of imaging. He stated that he then drove to another hospital in Parry Sound, where he had a CT scan. [23] The case materials included an Emergency Record, dated November 20, 2006, reflecting the worker s visit to the hospital in Parry Sound. The materials also included a report on a CT scan, dated November 20, 2006, of the worker s lumbar spine. The report stated, in part: There is an acutely herniated disc at L4-5. It is central and to the left side. It compresses the descending left sacral nerve roots, including L5 and S1. There is a bulging disc at L4-5 Impression: Acutely herniated disc at L4-5 [24] The worker was seen by Dr. Adegbite on November 24, Dr. Adegbite s report, of that date, on his consultation with the worker, stated in part: This 35 year old right handed man has had pain in the low back over the last four years. He claims he has the pain when he goes to work. He has intermittently had pain extend down the posterior aspect of the left lower extremity in the last four years. About one week ago there was marked aggravation of the pain, extending from the left buttock down the posterior aspect of the left lower extremity. He had been sent for physiotherapy and he claims that after the second treatment about eight days ago his left foot became weak with paresthesia also being experienced. He has been using crutches in the last three to four days.. This patient is very symptomatic from the left L4-5 disc herniation. Discectomy is indicated and will be carried out shortly.

7 Page: 6 Decision No. 663/11 [25] The case materials included an Operative Report, dated December 1, 2006, prepared by Dr. Adegbite, indicating that on that date, Dr. Adegbite performed L4, L5 discectomy surgery on the worker. A follow up report, dated January 15, 2007, prepared by Dr. Adegbite, stated that the worker had indicated that there had not been change in the left foot drop since his surgery. It stated that the worker was being fitted for a foot drop brace, noting that there was weakness in the worker s ability to dorsiflex his left foot and toes. The report concluded by stating: This patient is progressing satisfactorily and clearly there has been some improvement in the left foot dorsiflexion weakness. He was encouraged to obtain the foot drop brace and no further follow up with me is felt to be necessary. He expects to return to work within the next two weeks. [26] The worker testified that while the worker was off work, he received his full pay from his employer. He stated that after his surgery, he spoke to the CEO of the employer company and asked about how he should deal with the Board, in relation to his back injury. The worker testified that he was advised that the employer would look after him in relation to his injury, and that he was advised that it was unnecessary for him to file an accident claim with the Board. [27] The worker testified that he returned to work with the accident employer in February or March He stated that, for his first assignment after his return to work in 2007, he performed work of a supervisory nature in Ontario for a few days. He stated that he was subsequently asked if he would take on an assignment in British Columbia, to which the worker agreed. He stated that the work in B. C. was drilling, which was suitable for him. He stated that after he returned from B.C., the employer terminated his employment. [28] The case materials included a memo, dated June 8, 2007, prepared by the Board s Claims Adjudicator, which stated that the worker attended at the Board s offices to establish a claim for his low back. The date of the worker s visit to the Board s offices is not stated in the memo, however, it appears that the visit to the Board s offices was contemporaneous to the date of the memo. The memo indicated that the worker had asserted that he hurt his back loading quarries, and briefly described the method of loading drilled holes with the explosive emulsion, although the memo does not refer to the incident at the GR site. The memo also stated that the employer discouraged the worker from filing a claim with the Board, and that the CEO of the employer had indicated that he would strenuously oppose the worker should he file a claim with the Board. [29] The Board subsequently investigated the circumstances of the worker s accident claim, and in correspondence, dated June 18, 2008, prepared by the Board s Adjudicator, the Board advised the worker that his claim had been denied. The correspondence indicated that the worker s claim had been denied primarily because the worker had delayed in reporting his injury. In further, correspondence, dated May 28, 2009, prepared by the Board s case manager (CM), the worker was advised that the Board s decision to deny his accident claim was confirmed. The correspondence noted that CM the had spoken to the other foreman who had allegedly finished loading the holes that remained after the worker s alleged incident at the GR site, and this individual indicated that he did not recall any incident occurring at the site. Although the worker s version of events were apparently supported by the driver/operator, who testified at the appeal hearing, when he spoke with the CM, the CM indicated in the

8 Page: 7 Decision No. 663/11 correspondence that she was unable to reverse the decision of June 18 [sic], 2008, based solely on the solicited witness s statement. [30] Dr. Vance, prepared a report, dated September 7, 2007, addressed to the Board, which stated: This patient you know well. I examined him recently. He has a foot drop of a mild to moderate nature but he cannot dorsiflex his toes at all. He cannot evert his ankle and he has lost his knee reflex. He has to wear a brace. Given the history I think Compensation has a responsibility for this. I hope this information is useful to you. P.S. This man cannot run nor walk on rough terrain without his foot brace. This [man?] has chronic pain needing strong narcotics. [31] At the hearing, the worker testified about factors which preceded 2003, which had been discussed in the context of the worker s accident claim, as explanations, which were alternative to a work related injury, for his low back condition which required surgery in late [32] The materials included a hospital emergency room report, dated June 27, 2001, which stated that the worker presented at hospital with low back pain radiating down left leg. Pain relieved or reduced by lying flat and raising left leg. The report provided a Final Diagnosis of nerve root impingement. The materials also included an intake document, prepared by the worker, upon intake at a chiropractic clinic. The document indicated that the worker had been referred by his supervisor in his employment with the accident employer. The document stated that the worker was experiencing lower back pain and pain and aching down left leg. The document also indicated that the worker reported that his left foot feels knumb [sic]. [33] In addition, the Board s investigation report, dated September 7, 2007, included information provided by Dr. Todd Mazzuca, the chiropractor who treated the worker in 2001 and thereafter. The portion of the investigation report outlining Dr. Mazzuca s information stated: June 28, 2001, complaining of low back pain, left leg pain, numbness in the left foot, does not recall what set if off, no problems sleeping, no headaches, sharp dull ache. On examination, antalgic gait, shooting pain, positive Kemps, straight-leg raising diminished bilaterally, range of motion decreased in all directions, reflexes normal, no muscle wasting, diagnosis: multiple site sub-luxation, mechanical low back pain. He was treated with spinal manipulation on June 30, 2001, July 7, 14, and July 21, 2001 and August 25, He returns on May 30, 2002 and on October 29, 2002, same complaints, diagnosis and treatment. On January 11, 2006 same complaints and noted hurt back at work but no specific accident history noted. He noted similar findings on examination, the same diagnosis and treatments on January 11, 12, 2006, March 7, 9, and 11, He added that on examination, he would also note some loss of normal lumbar lordosis which could be caused by the pain or bad posture and not necessarily congenital. [34] At the hearing, the worker testified that he recalled being referred to a chiropractor in or about 2001, by his supervisor with the accident employer. He stated that his supervisor saw that he was in pain and recommended that he visit Dr. Mazzuca. The worker stated that his back was

9 Page: 8 Decision No. 663/11 sore because he was bending to pump water from a drill hole, and that this incident in 2001 (the worker testified that the incident occurred in 2000) was the first time that he experienced severe low back pain. He stated that he believed that he missed one day of work due to this incident, but that he returned to his regular work without problem. He stated that prior to this incident when his supervisor referred him to Dr. Mazzuca, he had some minor back pain while driving, but that this was relieved by stretching. He stated that prior to this incident, he had not lost time from work due to any problems that he had had with low back pain. [35] In addition, the worker also testified about a dirt bike accident that he had apparently during Summer The case materials included a statement from a co-worker who went trail biking with the worker after work, at a location where they were working at the time. At the hearing, the worker testified that the accident occurred on his own time, after work hours, and that the accident did not occur in the course of his employment. The statement from the coworker indicated that the worker layed [sic] his bike down and bumped his knee on a bolt on the handlebars, resulting in a cut. The statement also indicated that he cut his knee, but that mainly his pride was hurt. At the hearing, the worker testified that, the next day at work, he sought first aid treatment for his cut knee from an employee of the accident employer. The case materials included a statement from the employee, which was undated, and addressed to the worker s representative. The statement indicated that the employee recalled that the worker approached him for first aid required by a bike accident he had had on the previous day. It stated that he performed first aid on the cut knee on two consecutive days, and indicated that he did not recall the worker indicating that he had a sore back. (iv) Applicable law and policy [36] In the circumstances of this appeal, the worker has alleged that he sustained an injury to his low back on a disablement or gradual onset basis, beginning in or about 2003, and/or as the result of a chance event that occurred in November Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, 1997, which applies in relation to accidents occurring on or after January 1, [37] The Board s Operational Policy Manual Document No addresses the subject of the Adjudicative Principles to be applied in the Adjudicative Process. The document states, in part: Five point check system All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system." An allowable claim must have the following five points an employer a worker personal work-related injury proof of accident, and compatibility of diagnosis to accident or disablement history. Proof of accident

10 Page: 9 Decision No. 663/11 (v) 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? Analysis [38] At the appeal hearing, the worker s representative referred to the Board s Operational Policy Manual Document No , which is excerpted above, as providing the criteria pursuant to which the worker s initial entitlement to benefits should be analyzed. I agree that this policy document applies in the circumstances of this appeal. [39] Further, as the worker s representative pointed out, in the context of the five point check system referred to in the document, the fact that, in the circumstances of this appeal, there were an employer and a worker, is not contentious. [40] Further, it is relatively clear from the medical information that the worker sustained an injury to his back which required surgical treatment performed on December 1, The central question to be addressed, therefore, is whether the worker s back injury is work related. The questions of whether there is proof of accident and compatibility of diagnosis to accident or disablement history are subsidiary to the issue of whether the worker sustained a work related injury. [41] In the context of this appeal, it is also appropriate to take into account the Tribunal s jurisprudence relating to causation. According to that jurisprudence, a personal injury is considered to have been caused by work related factors, if it can be shown that such factors contributed significantly to the injury. According to the jurisprudence, in order to demonstrate that an injury was caused by work, it is not necessary to demonstrate that the work related factors were the sole cause of the injury. In this context, in order to demonstrate that an injury was caused by work, it is only necessary to demonstrate that the work related factors contributed significantly to the injury, notwithstanding the fact that non-work related factors may also have contributed significantly to cause the injury. [42] In this regard, the leading Tribunal decision, Decision No. 915, 7 W.C.A.T.R. 1 at 134, states in part: The Accidental Injury Need only be One of the Significant Contributing Factors It is also a first principle of personal-injury, civil-litigation law that a defendant's negligence does not need to be the sole cause of the damages claimed. It is equally well established in workers' compensation law that for compensation entitlement to arise, the disability does not have to result solely from the accidental injury. In its decisions to date as to the meaning of results from, the Appeals Tribunal has taken the view that a disability may be said to have resulted from an injury if the

11 Page: 10 Decision No. 663/11 injury made a significant contribution to the development of the disability. The Panel agrees with that interpretation. This is almost exactly the same place the courts have reached in the modern development of the civil-litigation concept of cause in personal injury cases. The definition of cause in the courts has had a long and checkered history but there is general acceptance of the proposition that consequential damages will be found to have been caused by a defendant's negligence if that negligence made "a material contribution" to the damage This Panel is, therefore, satisfied that a disability must be seen to have resulted from the compensable injury (and, therefore, to be compensable) if the injury made a significant contribution to the development of the disability. This is a principle which arises naturally from the plain meaning of the words "results from" and which is at least not more-embracing than the courts' concept of causation. It accords with the proposition that the breadth of the workers' protection for consequences of injuries was not intended to be reduced by the conversion from the common-law to the statutory system. It is, of course, the principle followed in previous decisions of this Tribunal. [43] In the circumstances of this appeal, the worker has asserted that his low back injury was attributable, at least in part, to his work over time with the accident employer, filling drilled holes with explosives. The worker has also asserted, however, that a specific incident that occurred at the GR site in the first part of November 2006 caused or contributed to his low back condition. If it can be demonstrated that the worker s ongoing duties with the employer over time contributed significantly to his low back condition (i.e., that the injury was caused on a gradual onset or disablement basis), that the incident at the GR site, in early November 2006, contributed significantly to his low back condition, or that the combined effect of these two circumstances (i.e., the ongoing duties and the incident at the GR site) contributed significantly to the worker s low back condition, the worker s appeal should succeed. [44] In this regard, I am satisfied that the worker s work duties filling holes with explosives required him to stand for prolonged periods of time bent over holes drilled in the ground, and that while in this bent over position, he was required to pull vigorously on a significant length of rubber hose, which at times could become jammed in the holes. The worker indicated that this method of filling the holes with explosives, using a rubber hose, was performed by him regularly in his employment with the employer between 2003 and There was no persuasive evidence before me upon which I could conclude that the worker did not perform work of this nature during this period. [45] I am also satisfied that an incident occurred in November 2006 at the GR site at which time the worker experienced some back pain. At the hearing, the employer s representative called into question the reliability of the worker s account of the episode at the GR site, noting that the worker appeared to be initially relying upon his general duties as the injuring process, but that he raised the episode at the GR site as being the injuring process, long after the fact. Nevertheless, I am satisfied that an incident occurred at the GR site at which time the worker hurt his back. [46] First, it does not appear to be contentious that the worker was performing blasting work for the employer at the GR site in or about early November I note that the precise date of the incident when the worker stated that he hurt his back at the GR site has not been clearly

12 Page: 11 Decision No. 663/11 indicated by the worker or by any other party, however, I am satisfied that early November 2006 is the time period when the employer was performing work at this site. If this work had not been performed at this site, and at this time, one would expect that the employer would have been readily able to produce evidence that the worker was not working at the site at about the time in question. No such evidence has been produced by the employer to prove that the worker was not present at the site at the time that he indicated that he hurt his back. I am satisfied that the worker was present at the GR site, performing work filling holes with explosives, at the time that he alleges he hurt his back. I also note that, since, as I have found above, this type of work required the worker to maintain a posture bending over holes in the ground while pulling up vigorously on a significant length of rubber hose, it is work which would predispose the worker to injury. [47] I also find that the worker s description of the events associated with the episode at the GR site was provided in significant detail. These details include the smaller size of the holes being filled on the particular occasion, the fact that the holes were closer together than usual, the fact that the site was elevated, the fact that there was a significant amount of loose rock on the surface at the site, the fact that his helper was absent, and the fact that the incident when he allegedly hurt his back occurred when most of the holes had been filled. The fact that the worker provided this information in significant detail supports the conclusion that the incident occurred and was not the subject of a fabrication. [48] I have also taken in to account that the worker s version of events was consistent with that provided by a co-worker, the driver/operator of the pump truck. I note that the testimony provided by this witness, who was excluded from the hearing room while the worker testified at the hearing, was generally consistent with the worker s testimony. There was consistency between the worker s version and the driver s version in that the driver stated: the site was elevated; a significant amount of loose chip rock was present on the surface at the site; the worker s helper was not present on the date in question; a problem arose on one of the last few holes to be filled, when the hose became jammed; the worker was pulling vigorously on the hose, appeared to buckle at the knees, put down the hose, and appeared to be hurt; and the balance of the holes were filled by another foreman, who was named; [49] I have also taken in to account the fact that, in order to perform his job, the driver had to keep the person filling the holes in clear view, in order to know when to stop pumping the emulsion. It follows that the driver would have been watching the worker at the time that he alleges that he hurt himself. [50] Further, I have taken into account the fact that the driver stated that after the worker dropped the hose, the other foreman who took over from the worker was able to retrieve the hose from the hole, and that the hose was not cut. Although this fact is not inconsistent with the version of events provided by the worker, it is a fact which was not part of the worker s account. In my view, this supports the conclusion that the worker and the driver were providing their

13 Page: 12 Decision No. 663/11 respective versions of the events from their own independent recollections, and not from a version that was produced through collusion or fabrication. I am also satisfied that the driver s statement that he and the worker did not have any friendship or relationship beyond being coworkers for a period of time, is true, and that the driver would have no reason to fabricate evidence for the benefit of the worker. [51] I have also had regard to an internal Board memorandum, dated May 19, 2009, included in the case materials. The memo reflected a conversation between the Board s CM and the individual who was identified by the driver as the other foreman who completed filling the holes that the worker alleged he could not fill after he hurt his back ( the other foreman ). The memo stated that this other foreman indicated that he could not recall filling holes for the worker at the GR site, and that he could not recall an incident when the worker hurt his back at the site. The individual reported to the CM that had that occurred, he would have remembered it. [52] For the reasons provided above, associated with detail and coherence of the version of events provided by the driver, I attribute significant weight to his evidence. The statement from the other foreman does not provide any details which might prove that the version of events provided by the worker and the driver were untrue. He merely stated that he could not remember filling the holes, or that the worker hurt his back at the time, and that if that had occurred, he would have remembered. As between the viva voce testimony provided by the driver at the hearing, and the statement provided by the other foreman that, simply put, he could not remember the incident, I attribute greater weight to the driver s testimony. [53] I have taken in to account the fact that the worker did not report the GR incident in his Form 6, and that he did not refer to the incident specifically when he initially discussed his accident claim at the Board. He stated that it only became apparent to him that this incident was significant to his low back injury after he discussed the case with his current representative, significantly later in the claim history. Given the nature of the GR incident and its proximity in time to the consultation with his family doctor on November 10, 2006, which ultimately led to his surgery in December 2006, I would have expected that the GR incident would have had a more prominent place in the worker s recollection and his subsequent recounting of his back problems to his physicians and to the Board. [54] Although this point has been an important consideration in my weighing of the evidence in this appeal, it does not cause me to discount the evidence referred to above so as to cause me to conclude that the GR incident did not occur. In my view, it is not implausible that the worker held the view that his back pain was attributable to his general duties with the employer, so that the single incident at the GR site did not stand out in his mind until he discussed his case with his representative. I note that the worker did not generally demonstrate strong powers of recollection in relation to other aspects of the evidence (e.g., he was mistaken about the start date of his employment with the accident employer). [55] I also note that Dr. Adegbite s report dated November 24, 2006, stated that the worker had a marked aggravation of his back pain about one week ago. It is clear, however, that the aggravation occurred more than one week earlier, given that the worker saw his family physician on November 10, In my view, it is probable that the marked aggravation reported by

14 Page: 13 Decision No. 663/11 Dr. Adegbite occurred a few weeks prior to the November 24, 2006 report, and that this would have been approximately contemporaneous with the timing of the GR incident. [56] I have considered the fact that the worker did not raise the GR incident as a factor affecting his low back condition until relatively late in the claim history. Considering the weight of all of the evidence before me, however, this fact does not cause me to conclude that the GR incident did not occur, or that the worker did not hurt his back at the time of the incident. [57] Accordingly, I find that it is probable that an incident occurred at the GR site in early November 2006, when the worker injured his low back. As noted above, I have also found that the worker performed work between about 2003 and 2006, which involved the worker assuming a bent over posture, standing over the drilled holes and pulling up forcefully on the hose. [58] The case materials included a Medical Discussion Paper on the subject of Back Pain, dated March 1997, prepared for the Appeals Tribunal by Dr. W.R. Harris and Dr. J.F.R. Fleming. The paper also includes an addendum, which is a response, prepared by Dr. Stanley D. Gertzbein, to certain questions posed by the Tribunal s Medical Liaison Officer. The questions that were apparently posed to Dr. Gertzbein are not reproduced, however, in my view, his answers nevertheless provide insight into the issues under appeal in this case. [59] As a starting point, I note that the main body of the paper (on the third page of the paper, at the fifth paragraph under the subheading Aging Change Lumbar Spine ) includes a discussion of disc protrusions, which are also referred to as herniations. This portion of the paper states: Sometimes some fibres of the annulus fibrosis may give way or tear, either spontaneously or from an injury, resulting in back pain. This usually heals in a few weeks with resolution of the pain. However a tear may allow some of the nucleus pulposus to protrude into or even completely through the annulus (called herniation or sequestration )... [60] I refer to this portion of the paper, because it uses the term herniation interchangeably with the term protrusion. I note that, in the report dated November 24, 2006, Dr. Adegbite provided a diagnosis of left L4-5 disc herniation. The portion of the Discussion Paper prepared by Dr. Gertzbein, to which I wish to refer, refers to a disc protrusion. It should be understood that in the context of this case, these terms are interchangeable. [61] In the portion of the paper prepared by Dr. Gertzbein, he begins first by describing the structure of an intervertebral disc, referring to the two main components, namely the annulus fibrosis and the nucleus pulposus. This portion of the paper goes on to discuss the mechanism through which a disc protrusion (or disc herniation ) may be produced. The paper then goes on to discuss the role played by trauma in the development of a disc protrusion, and the extent of the trauma which is necessary to affect an intervertebral disc. These topics are covered in the following excerpt from the paper: By way of background, the intervertebral disc is a rubbery structure located between two vertebral bodies occupying the anterior two-thirds of the cross section of a vertebra. The intervertebral disc lies anterior to the spinal canal and therefore anterior to the nerve roots in the lumbar spine.

15 Page: 14 Decision No. 663/11 The lumbar intervertebral disc consists of two components. A central gelatinous or watery material called the nucleus pulposus which occupies the central one-third of the disc and the outer fibres consisting of the annulus fibrosis which is a tough tissue very much like the ligaments that join bones together. The structure is circular and surrounds the nucleus pulposus and occupies two-thirds of the diameter. A disc protrusion is a condition in which the nucleus pulposus migrates from its central position, usually backwards or backwards and to the side, stretching the fibres of the annulus fibrosis or tearing them and ultimately extending backwards towards the spinal canal. The nucleus pulposus may cause the outer fibres of the annulus fibrosis to stretch and produce a bulging effect compressing the nerve roots which pass by the disc. If the nucleus pulposus projects further it is called a disc prolapse which means that most of the nucleus pulposus material has extended beyond the annulus fibrosis but is still disc prolapse which means that most of the nucleus pulposus material has extended beyond the annulus fibrosis but is still covered by an outer lining of ligament that normally covers the annulus fibrosis on its posterior surface. In more severe cases the nucleus pulposus can project beyond the ligament itself and lie freely in the spinal canal. This condition is known as a sequestrated disc fragment. In all of these situations nerve tissue can be compressed and result in the common symptom of sciatica. During the normal process of aging the chemistry of the nucleus pulposus and the annulus fibrosis change. The most dramatic change is drop in the water content and a loss of resilience of the disc. When the disc loses its resilience it does not respond to normal motion and activity and does not stretch in a normal way. The fibres of the annulus fibrosis may then develop microscopic tears as a result of relatively normal activity. The weakening of the annulus fibrosis during this process sets up the nucleus pulposus for a path of least resistance under certain circumstances. During increased pressures in the disc which occur normally with activities such as bending, lifting and twisting, the nucleus pulposus is subjected to great pressures and may tend to move in a direction of least resistance, namely backwards or backwards and sideways where most of the microscopic tears have occurred in the annulus fibrosis. All these changes occur with aging and do not necessarily reflect trauma or work-related activity. In answer to the first question, the significant trauma superimposed on these underlying conditions can produce a disc protrusion. However, in many cases a major injury is not determined but a simple activity such as bending, twisting or lifting may generate sufficient forces within the disc to cause it to protrude through a path of least resistance, namely the microscopic injuries to the annulus fibrosis. Therefore, the answer to the first question is that there does not always need to be significant trauma to lead to a disc protrusion. Disc protrusions may rarely occur in healthy discs. They are seen in teenagers whose discs are thought to be quite normal. In these situations extreme forces are exerted on the disc which will cause rupture of the annulus fibrosis in much the same way as a rupture occurs with any ligament. In almost every case there is a significant history of trauma in these young individuals. On the other hand, once an adult reaches the age of 20 to 25 the aging changes have already begun and the predisposing factors mentioned above can lead to disc protrusion with much lesser trauma. There are a number of factors which have been related to a higher incidence of disc protrusion. These are primarily those of vocational choices such as construction work and other manual employment, e.g. garbage collectors and warehouse workers. High risk industries include mining and transportation, the latter thought to be secondary to low frequency vibration causing damage to the discs. This is particularly seen in long-distance truck drivers. Most of these jobs

16 Page: 15 Decision No. 663/11 involve repetitive bending, heavy lifting and twisting, all of which take their toll on the disc, particularly in the face of the normal aging process.... In reply to the last question, if an accident were to be the primary cause of a disc prolapse I would expect the features of the disc protrusion to be present within a few hours to a few days after. I have occasionally seen the onset of a disc protrusion two or three weeks after a definite accident. It is difficult to determine what factors influence this range of time but in some cases a significant injury to the annulus fibrosis will weaken it and with some additional pressures on the nucleus pulposus from normal activity the disc will prolapse through the damaged annulus within the first few days. [62] The worker was 35 years old at the time of the incident at the GR site. He was 32 years old in 2003, when the employer began using the method of filling holes with explosives, as described above. The excerpt from the discussion paper notes that once an adult reaches the age of 20 to 25 the aging changes have already begun which predispose an individual to disc protrusion. It also notes that during increased pressures in the disc which occur normally with activities such as bending, lifting and twisting, the nucleus pulposus is subjected to great pressures and may tend to move in a direction of least resistance... The paper states that after the degenerative process has begun in adults, trauma need not be significant to cause a disc protrusion. [63] Accordingly, I conclude that: The information included in the Tribunal s Medical Discussion Paper on Back Pain suggests that activities involving bending and lifting may generate sufficient force to cause a disc protrusion. This would be particularly true where natural degeneration of the disc structure had begun as a result of the aging process; The worker s duties with the employer, filling holes with explosives, bending over drilled holes and pulling up forcefully on a hose, would be likely to predispose the worker to a disc protrusion; and It is probable that at the time of the incident that occurred in early November, at the GR site, the worker injured his low back while he was in a bent over posture, pulling up very strenuously on a hose. [64] Taking into account the Tribunal s jurisprudence relating to significant contribution referred to above, in these circumstances I find that it is probable that the worker s general duties between 2003 and 2006, filling holes with explosives, as well as the incident in early November 2006 at the GR site, contributed significantly to his diagnosed disc herniation, and his resulting condition. On this basis, I find that the worker has initial entitlement to benefits for his low back injury. [65] I agree with the submissions provided by the employer that there were several factors which indicate that there were significant non-compensable contributors to the worker s low back condition. Notably, medical information prepared in 2001, both at a hospital emergency room, and in the context of the worker s chiropractic treatment at that time, indicate that the worker had a significant back condition when he began his employment with the accident employer in I find that this pre-existing condition contributed significantly to the worker s

17 Page: 16 Decision No. 663/11 subsequent back problems. I also find, however, that the worker s general duties with the employer between 2003 and 2006, and the incident at the GR site also contributed significantly to the condition. As is noted above, however, the fact that non-compensable factors may have contributed significantly to an injury does not limit entitlement where there has also been significant contribution from work-related factors. According to the jurisprudence, in order to attract entitlement, it is not necessary to demonstrate that the compensable factors are the only significant contributing factors. [66] I am not able to conclude from the evidence, however, that the worker s motorbike accident that occurred earlier in Summer 2006 contributed to his back condition. There was no evidence that the worker required medical treatment for his back following this incident, and the individual who provided first aid for the laceration the worker sustained as a result of the motorbike incident stated in a witness statement that he was not aware that the worker injured his back as a result of the incident. In any event, even if I had concluded that the motorbike accident was a significant factor contributing to the worker s back condition, that would not persuade me that the worker s general duties with the employer between 2003 and 2006, and the incident at the GR site did not also contribute significantly to the condition. [67] Finally, I have taken into account the fact that there was delay by the worker in reporting an injury to the Board, as well as some delay in the worker seeking medical treatment following the incident at the GR site. As for the delay in seeking medical treatment, since the date when the incident at the GR site has not been precisely determined, the length of the delay between the incident and November 10, 2006, when the worker sought medical treatment, is not entirely clear. I am satisfied from the evidence, however, that the worker did not perform any heavy work during the period between the incident at the GR site and the worker seeking medical treatment on November 10, Further, I note that the medical information provided by Dr. Gertzbein in the Discussion Paper, indicates that onset of a disc protrusion may occur up to two or three weeks after a definite accident. Given this explanation, the fact that the worker delayed in obtaining medical treatment for a week or two following the incident at the GR site, does not cause me to conclude that the incident did not occur, or that that incident or the worker s general duties did not contribute significantly to his low back condition. [68] I have also taken into account the more significant delay between the time that the worker sustained his injury and his reporting the incident to the Board. However, I accept the worker s testimony that the employer made it clear to him that it did not wish to have the worker file a claim with the Board, and that the employer would look after him. It does not appear to be contentious that the employer paid the worker while he was recovering from his surgery in December It is not implausible to conclude that the worker would refrain from filing a claim to satisfy the wishes of his employer, particularly where the worker was being paid his salary while he was recovering from his injury. After the worker was terminated from his employment in Spring 2007, the worker filed his claim with the Board several weeks later. [69] Section 13(1) of the Act provides: 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.

18 Page: 17 Decision No. 663/11 [70] The fact that a worker has delayed in seeking medical attention for a work injury, or has delayed in reporting a work injury to either his employer or to the Board, is evidence which goes to the question of whether the work related injury actually occurred. If the decision maker is satisfied, based on evidence apart from the issue of delay, that the work related injury occurred, in that work related factors contributed significantly to the injury, the issue of delay will not be determinative of entitlement. In this case, for reasons provided above, I am satisfied that that work related factors contributed significantly to the worker s low back injury. The fact that there was some delay by the worker in seeking medical attention and in reporting his work injury to the Board, does not cause me to conclude otherwise. [71] In keeping with the criteria set out in Operational Policy Manual Document No , I find that: The worker sustained a personal work-related injury; Proof of accident has been established in keeping with my assessment of the evidence, set out above; and In keeping with the information provided in the Tribunal s Medical Discussion Paper, excerpted above, there is compatibility between the worker s diagnosis of a herniated disc and the accident history. [72] Accordingly, I find that the worker is entitled to benefits for a low back injury, in that factors associated with his employment contributed significantly to the injury. The issue of the nature and extent of the worker s entitlement to benefits is remitted to the Board for determination, subject to the worker s usual rights of appeal.

19 Page: 18 Decision No. 663/11 DISPOSITION [73] The appeal is allowed. 1. The worker has initial entitlement for an injury to the low back. 2. The issue of the nature and extent of the worker s entitlement to benefits for these injuries is remitted to the Board for determination, subject to the worker s usual rights of appeal. DATED: April 21, 2011 SIGNED: M. Crystal

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