WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1617/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1617/14 BEFORE: T. Mitchinson: Vice-Chair HEARING: August 29, 2014 at Sudbury Oral DATE OF DECISION: September 4, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1879 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 10, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Voz, Office of the Worker Adviser D. Wright, Office of the Employer Adviser 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. 1617/14 REASONS (i) Introduction [1] This appeal was heard in Sudbury on August 29, The worker appeals the January 10, 2013 decision of Appeals Resolution Officer (ARO) C. Anzil. The ARO denied initial entitlement for the neck as an area of injury stemming from a June 18, 2010 workplace incident, or on a disablement basis. [2] The worker attended the hearing and was represented by Carol Voz from the Office of the Worker Adviser. The employer was represented by Darlene Wright from the Office of the Employer Adviser. The worker testified, as did the owner of the accident employer. Ms. Voz and Ms. Wright made submissions on behalf of their clients. (ii) Applicable law [3] The purported injury in this case occurred in Therefore, the Workplace Safety and Insurance Act (the Act) applies. (iii) Issue on appeal [4] The only issue in this appeal is initial entitlement for the neck on either a chance event or disablement basis. (iv) Background [5] In December 2010, the worker submitted a Form 6 claim to the Workplace Safety and Insurance Board (the Board), maintaining that he had injured his neck on June 18, 2010 while performing regular job duties as a welder. The employer responded with a Form 7 stating that the worker had not reported any such injury, and had been working in his regular job since that date without any apparent difficulty. [6] The Eligibility Adjudicator assigned to the file denied entitlement on the basis that the worker had failed to report the injury to the employer, there was insufficient medical evidence of a work-related injury, and the available reporting indicated a pre-existing degenerative condition in the neck. [7] The worker provided additional medical reporting from the Occupational Health Clinics for Ontario Workers (OHCOW) and asked for a reconsideration of the claim. After reviewing this report, the Adjudicator confirmed the earlier decision, and went on to conclude that the evidence did not establish that the worker s neck condition was related to his job duties as a welder on a disablement basis. [8] This decision was upheld by ARO Anzil in her January 10, 2013 ruling. (v) The worker s position [9] The worker testified that he worked as a welder for the accident employer for 42 years before stopping work in 2011 due to a compensable wrist injury. He explained that he performed the full range of welding tasks, but that the focus of his work involved fabrication of railings. According to the worker, this work required him to flip his helmet on and off while doing a number of small welds, requiring repetitive neck movements. When referred to the

3 Page: 2 Decision No. 1617/14 OHCOW report which indicated that welding duties comprised 90-95% of his job, the worker testified that this was not accurate. He explained that the work was not done on an assembly line, and his job required material handling, layout, cleaning, fitting and painting, as well as actual welding tasks. [10] The worker testified that he did not complain to the employer about any neck-related injuries at any point during his period of employment, including the June 2010 timeframe when he claimed to have experienced the chance event injury. The worker explained that the highly manual nature of the job caused periodic pain symptoms in various body parts, which would generally clear up on their own with time and rest. He thought he had experienced a problem of this nature on June 18, 2010, when he was crouching to complete a weld and felt a sharp pain in his neck. It was for this reason that he did not report the injury to the employer. He also explained that he was hesitant to raise any complaints because the owner was not receptive to hearing about any work-related problems from the workers. [11] The worker went on to testify that when the neck pain persisted after he returned home on June 18, 2010, he went to a local walk-in clinic. He was given pain medication and advised to contact his family doctor if the symptoms did not clear. According to the worker, he returned to work the following day and did not suffer any wage losses as a result of the June 18, 2010 incident. [12] The worker recalled receiving acupuncture treatments for his neck in January 2011, and getting an x-ray of the cervical spine, but was not under regular treatment by any medical professional before filing the Form 6. He explained that he went back to the walk-in clinic in the context of submitting his claim, so that the treating clinic doctor could identify the June 18, 2010 visit on a Form 8 report. The worker confirmed that he did not advise the employer that he would be submitting a claim, and could not recall whether he mentioned any neck pains to coworkers during the June-December 2010 period. [13] When shown a copy of the June 18, 2010 treatment report which references both the neck and wrist, the worker testified that, although he had ongoing symptoms relating to a different wrist injury, the main purpose of his visit on that date was to deal with neck pain. The worker could not recall whether he advised the clinic doctor that his neck problems stemmed from a workplace injury. [14] Under cross-questioning by Ms. Wright, the worker confirmed that he had reported earlier workplace injuries to the employer, and had participated in a vocational rehabilitation program following his compensable wrist injury. He also recalled that co-workers had provided statements to the Board in the context of the wrist claim, but that none were obtained regarding his neck injury claim. [15] Ms. Voz made a number of submissions. [16] As far as the chance event injury claim is concerned, she submits that the worker attended the walk-in clinic on the date of the injury, and that neck strain was identified on the clinic doctor s report of that date. She also relies on the December 10, 2010 note from the worker s family doctor which identifies neck pain and degenerative osteoarthritis caused by work duties. [17] As for the disablement claim, Ms. Voz relies on the worker s testimony regarding neck strain associated with welding duties over an extended period, as well as the OHCOW report that identifies welding job duties as predicable causes of disabling neck conditions.

4 Page: 3 Decision No. 1617/14 (vi) The employer s position [18] The owner testified that he has known the worker since he was a student helper, working for his father, who owned the welding company at that time. After graduating from university and working as an engineer for a period of time, the owner bought the business from his father in 1987, and the worker was employed by him from that point until he left the workplace in 2011 due to a different workplace injury. [19] The owner disputed the worker s characterization of him as someone who did not want to hear about work-related complaints. He acknowledged that he might react negatively when first presented with a problem, and would press employees for fulsome explanations, but he does not have communication problems with anyone in the workforce, including the worker. He explained that he and the worker had even driven to and from work together for an extended period. [20] The owner explained that he first received notice of the worker s purported neck injury when contacted by the Board in February The worker was on vacation at that time, so unavailable to talk to about this incident, so the owner spoke to other workers who had no recollection of an injury, and then filed the required Form 7 report. The owner testified that at no point had the worker complained about neck pain, had never been off work due to neck-related problems, and there had never been a need to identify modified duties addressing any neck restrictions. [21] The owner went on to testify that the worker s other wrist injury claim was under active consideration by the Board during the early 2011 period, and that he had been supportive of this claim. The owner also confirmed that he had submitted the required Form 7 forms in all of the worker s previous claims. [22] The owner explained that his company is small, and that the welding shop requires employees to do a range of tasks. He agreed that the worker did railing fabrications, but that other welders did this work too. He also testified that the worker liked to do all of the various assembly duties himself, which meant that a significant portion of the workday was spent on tasks that did not involve actual welding. In the owner s view, the 90-95% welding figure identified in the OHCOW report was way off the mark, and that actual welding comprised less than 50% of the workday. [23] The owner also explained that welding helmet design has evolved to the point that repetitive flipping is no longer required. According to the owner, these auto-darkening helmets have been available for approximately 10 years, however not all welders use them, and even those that do may still flip the helmets while working. [24] Ms. Wright also made a number of submissions. [25] She points out that the worker s Form 6 was filed several months after the purported June 18, 2010 neck injury, and that the worker at no point advised the employer of any neckrelated problems. In her view, this is in contrast to the worker s conduct on prior claims, when he advised the employer of injuries, and various documents were submitted by the workplace parties in the normal course. [26] Ms. Wright also points out that the June 18, 2010 report from the walk-in clinic doctor identifies the worker s wrist condition as the primary area of complaint, and there is no mention of neck pain stemming from a work-related cause.

5 Page: 4 Decision No. 1617/14 [27] As far as the disablement claim is concerned, Ms. Wright submits that the worker spent less than 50% of the workday performing actual welding tasks, with sufficient time doing other job duties to avoid repetitive neck strain. She also submits that the x-ray of the worker s cervical spine shows degenerative changes throughout all levels of the upper spine which, in her view, is not consistent with symptomatology stemming from a more narrowly focused repetitive strain injury. [28] Ms. Wright also submits that the job duties described in the OHCOW report, and relied on in supporting the worker s disablement claim, are not accurate. She points to the testimony of both the worker and the owner who reject the 90-95% level of actual welding tasks as excessive. [29] Finally, Ms. Wright points out that the worker participated in a Non-Economic Loss examination for his wrist injury claim, without making any reference to neck-related complaints or pain symptoms. (vii) Analysis and findings [30] Section 2(1) of the Act defines a workplace accident as: a wilful and intentional act, not being the act of the worker a chance event occasioned by a physical or natural cause, and a disablement arising out of and in the course of employment. [31] The guidelines contained in Board Operational Policy Manual (OPM) Document No state: A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event. [32] After carefully considering the testimony provided by the worker and the owner, as well as the submissions of Ms. Voz and Ms. Wright, I find, on the evidence, that the worker did not experience a chance event accident in the workplace on June 18, I have reached this conclusion for a number of reasons: There is a significant delay in reporting the workplace injury. For reasons that are not clear, the worker submitted two Form 6 reports to the Board, one on December 29, 2010 and the other on February 15, The first of these forms is dated more than 6 months after the purported June 18, 2010 injury, which is excessively long. The worker s explanation for delay is not credible. If he were expecting the pain symptoms to resolve on their own, that situation would have been clarified in well less than 6 months. And the worker s position that he was not comfortable in advising the employer is not consistent with his past practice of promptly notifying the employer in the context of prior injury claims. The June 18, 2010 walk-in clinic report appears to relate primarily to wrist complaints, and the reference to the worker s neck is not linked to a work-related cause. The worker was also not able to confirm that complaints raised with the clinic doctor stemmed from a work-related injury.

6 Page: 5 Decision No. 1617/14 There is scant medical reporting regarding neck problems between June 18, 2010 and the initiation of the claim in late December The only relevant document from the worker s family doctor, Dr. Jacques, is a brief handwritten note dated December 10, 2010 referring the worker for acupuncture treatments. It states that the worker has marked osteoarthritis and degeneration, and the statement that this condition is from work is not, in itself, sufficient to link the worker s condition at the time to a June 18, 2010 chance event injury. The worker did not lose any time off work after June 18, 2010, and performed the full range of job duties, with no modifications, from that point until stopping work in 2011 for reasons unrelated to this claim. The worker did not complain to the employer, and there is no evidence that he made any complaints to co-workers about neck pain or any neck injury either on June 18, 2010 or at any point prior to leaving the workplace in [33] For all of these reasons, I find that the requirements for entitlement on the basis of a chance event neck injury on June 18, 2010 are not present on the evidence, and the worker s claim on that basis in denied. [34] Board OPM Document No defines disablement as: - a condition that emerges gradually over time; or - an unexpected result of working duties. [35] To decide whether there was a disablement arising out of and in the course of employment, I must determine whether there was an injuring process which was part of the worker s employment (Decision No. 226/94). Relevant factors to consider in reaching this decision include the repetitiveness of the work, nature of the work, increase in workloads, changes in work methods, and the general work environment (see, for example, Decision Nos. 46/04, 541/05 and 1327/04). If, on the evidence, I am satisfied that the worker s employment significantly contributed to the onset of neck injury that became manifest on June 18, 2010 or significantly contributed to the acceleration of an underlying condition by rendering these symptoms disabling, the worker s claim will be allowed. [36] Again, I find that that the requirements of an accident by disablement have not been established on the evidence in this case, for a number of reasons. [37] I accept that the worker performed job duties of a welder for a lengthy period, and that this is a highly manual job that can put pressure on various body parts, including the neck. However, that in itself is not sufficient to establish that he has experienced a compensable workplace injury. [38] There would appear to be no dispute in this case that the worker was never off work during his lengthy period of employment for reasons relating to neck pain or a neck-related injury. The worker also confirmed in his testimony that he never made any neck-related complaints to the employer or asked for any modified job duties to accommodate neck restrictions. [39] I also find, given the size of the employer s business, and the nature of the work as described by both the worker and the owner, that the worker s job duties were not highly repetitive. Welders were responsible for a range of job duties, in addition to actual welding, and

7 Page: 6 Decision No. 1617/14 the risks of repetitive strain that may be present in other assembly-line welding environments are not present here. Both parties accept that the 90-95% welding figure relied on by the OHCOW doctor is not accurate, and I find that the 50% figure estimated by the owner would appear to be a credible allocation, given the breadth of duties described consistently by both the owner and the worker. [40] It is also relevant to note that the nature of the worker s job did not change in the period leading to the purported June 18, 2010 injury, nor had there been any increase in workload or changes in work methods. [41] There is evidence of the worker having received medical treatment for any neck-related symptoms over the course of his lengthy work history, nor any suggestion that he suffered any wage loss for reasons related to a neck condition. [42] The only relevant medical test report contained in the claims file is an August 27, 2010 x- ray. It identifies degenerative changes at all levels of the cervical spine, a condition consistent with the normal ageing process for a 62 years old man. [43] Finally, I note that the worker participated in a lengthy claims process regarding his wrist injury, including a Non-Economic Loss assessment for this body part. He had ample opportunity in that context to identify any work-related neck problems, yet he failed to do so, which I find is significant. [44] For all of these reasons, I find that the requirements for entitlement on a disablement basis have not been established, and the worker s claim on this alternative basis is also denied.

8 Page: 7 Decision No. 1617/14 DISPOSITION [45] The appeal is dismissed. DATED: September 4, 2014 SIGNED: T. Mitchinson