SUMMARY DECISION NO. 1007/99 Accident (occurrence). The worker appealed a decision of the Appeals Resolution Officer denying entitlement for low back disability. The worker experienced the onset of back pain while working in an awkward position. The appeal was allowed. [7 pages] DECIDED BY: Kenny DATE: 10/06/99 ACT: WCA
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1007/99 [1] This appeal was heard in Toronto on June 3, 1999, by Tribunal Vice-Chair M. Kenny. THE APPEAL PROCEEDINGS [2] The worker appeals the January 19, 1998 decision of Board Appeals Resolution Officer V. Rabbito. The Appeals Resolution Officer decided that the worker was not entitled to benefits for a low back disability because he concluded that the worker did not suffer a work injury on August 8, 1994, and that the worker did not suffer an injury by disablement arising out of and in the course of his employment. [3] The worker attended the hearing. He was represented by student-at-law, N. Mehta from the Ontario Sheet Metal Workers and Roofers Conference. The employer advised the Tribunal that it did not intend to participate in the hearing of this appeal. THE EVIDENCE [4] The worker testified. The written evidence consisted of the Case Record, an Information Request form completed on behalf of the worker, an Addendum, a Board record showing a 1965 accident date, and a diagram which the worker drew when he testified. THE ISSUES [5] On August 8, 1994, the worker was treated at a hospital emergency department. The doctor who examined him at that time diagnosed mechanical low back pain and submitted a report to the Board. [6] The worker has not returned to his pre-injury job since that date. Before that, he had worked as a sheet metal worker for about 27 years. [7] The worker s representative argued that the worker s low back disability resulted from a personal injury by accident which arose out of and in the course of the worker s employment on August 4 and August 8, 1994. Alternatively, he argued that the worker s low back disability resulted from an injury by disablement arising out of and in the course of the worker s employment as a sheet metal worker over a 27 year period. [8] The issue on appeal was:
Page: 2 1. Did the low back disability for which the worker received treatment on and after August 8, 1994, result from a work-related injury on August 4 and/or August 8, 1994? 2. If not, was it caused by the nature of the worker s work as a sheet metal worker over a 27 year period? THE REASONS (i) The Appeals Resolution Officer s Decision [9] The Appeals Resolution Officer s ( ARO s ) decision was made without an oral hearing. The ARO noted that it was not sufficient that an impairment comes on during work. There must be something about the work that caused the impairment to occur. On the basis of the written documents on file, he concluded that, although the onset of the worker s back impairment occurred during work, the evidence did not establish that there was something about the work that caused the impairment to occur. In particular, the ARO noted that the worker had not reported anything out of the ordinary to have occurred either on August 4, 1994, or August 8, 1994. The ARO also concluded that there was not documented evidence that the worker, during his working career, had difficulties performing his duties because of low back problems, and he therefore concluded that the worker did not suffer an injury by disablement attributable to the nature of his employment. (ii) Was there an injury on August 4 and/or August 8, 1994? (a) The written evidence [10] Both a hospital emergency record, and a Physician s First Report to the Board were completed on August 8, 1994. The emergency record included a nursing assessment which reported no known injury. But the physician s assessment from the same record indicated that the worker had, the previous Thursday (August 4, 1994), experienced low back pain when he was putting duct work up - and that, on the morning of the 8th, while working the pain became more severe. The examining doctor submitted a report to the Board which described the history as last week Thursday while working developed some low back pain. This has gradually worsened. [11] Although both of the above records from the day the worker stopped work made some note of the worker s work, the Report of Accident form which was filed by the accident employer stated that the worker had indicated to his foreman that he did not think his low back spasm was job related. The worker testified that he made no such statement--that, after he hurt his back, he told the foreman he had hurt it and he then left to get medical attention. [12] Three days later, the worker was examined by a doctor who was replacing his family doctor that day. According to the family doctor, that doctor s chart notes stated:...accident work - seized up shooting pains - shooting pains at work not clear (sic) up. No previous back problems. Putting up ducts - off work since... [13] The worker started physiotherapy one week after he left work. A discharge report written by the physiotherapist in September 1994 described the worker s history as follows:
Page: 3 Patient felt pain in his low back as he twisted to the right to hook a piece of sheet metal in place while working overhead on August 8, 1994... [14] But several weeks later, a Board Claims Adjudicator made the following notes about a conversation with the worker:...worker advised he had climbed up on scaffold to install Y branch duct work when he felt spasm and pain in low back. Y branch weighs 12 lbs. This was on August 8, 1994 at 7:30 a.m. The worker noted he had no specific twist or move to explain why he had the onset of pain... [15] In his September 1994 report to the Board, the worker answered the question What happened to cause your injury/disease as follows: Installing Y branch fitting (duct). Suffered back spasm mid and lower back across both hips. Also pain in left shoulder... [16] He also noted that he had had discomfort when he left the job on August 4th but that he had felt the discomfort would go away during the 2 1/2 days he had to rest before Monday August 8th. [17] In October 1994, the worker s family doctor reviewed the history of the injury with the worker. She reported the following:...reviewed history of injury in that it occurred while installing a Y branch duct. He put a cleat on one side, then while twisting his back and reaching and looking upwards, thereby extending his back, he installed the 2nd cleat - while doing this he felt his low back musculature suddenly seize and says that since then it has never let up... (b) The worker s testimony [18] The worker testified that he worked as a sheet metal worker for 27 years before his 1994 back problems. As a sheet metal worker, he fabricated and installed duct work weighing from a couple of pounds to about eighty pounds. He described the job as highly physical - involving lots of turning and twisting, bending, carrying, lifting and pushing. [19] He testified that, on Thursday August 4, 1994, he was working at a university and he had to change a grill which turned into a wall instead of turning downward. To do this job, he had to loosen duct work and turn the grill located close to a wall. He used a ladder to climb to the position where he was going to push the ductwork back and change the grill position. He testified that he had his arms above his shoulders to reach the grill itself and he twisted his body around so that he could face the pipe to take the screws out when he experienced sharp pain in his low back and into his buttocks. He testified that he did not report this at the time because he thought it was normal construction work pain and it dissipated - it went from really sore to a nagging ache. He testified that he had the Friday off work (although the records indicate he may have worked half a day) and he then rested over the weekend. He testified that, on Friday and over the weekend, the pain was there but not excruciating. [20] On Monday, August 8, 1994, the worker reported to work. He was assigned to put a Y branch and two lines up. He put scaffolding under the area where he was going to work and he put the
Page: 4 Y branch up on the scaffolding. He testified that he then slipped the Y branch into a joint which used drive cleats on either side to hold the ducts. He was able to put the drive cleat on one side but, when he put his hand under the duct to put the drive cleat on the other side, he was unable to get the cleat on. The worker testified that he put the duct on his shoulder and twisted underneath it to see where the drive cleat was. While he was in that position, he smacked the cleat in place with his hand and, as he did so, pain shot down his leg and across his back. The worker testified that the pain was so severe that it almost made him sick and it took two or three minutes before he had enough breath to get down from the scaffold. He said that, when he was able to do so, he crawled down the rails of the scaffold and limped to the foreman. He testified that he told the foreman he hurt his back and he was going to go to the hospital. [21] The worker described several occasions when he hurt his back at work in the past. On two occasions, he lost some time from work and on three other occasions he was assigned to light duties. On the most recent occasion (in 1992), he rested over the weekend and did not lose time from work. The worker testified that there were other occasions when he experienced back pain on the job - but the back pain he described lasted for relatively brief periods - it usually went away in a few days. [22] In contrast, the worker testified that the pain which he experienced on August 8, 1994, has not gone away. In spite of the fact that he has had ongoing medical treatment since that time, the worker testified that nothing seems to be working - he still gets excruciating pain every time he picks something up more than a few inches from his body. [23] The worker described his attempts to return to work. He testified that his back has never returned to the condition which would allow him to do his pre-injury job. (iii) The medical evidence [24] The worker s family doctor, Dr. Anna Issakoff-Meller, wrote the Board several reports which provided evidence supporting the worker s claim. In November 1994, she wrote a report detailing the history of the worker s injury and medical treatment (beginning with his visit to the hospital emergency department on August 8, 1994 - and the hospital doctor s notes regarding that visit) and describing later physiotherapy and medical treatment the worker received. In addition, Dr. Issakoff-Meller gave the detailed description of the injury which the worker provided when she questioned him further in October 1994. In 1996, she wrote a report in which she described the worker s history of back and neck pain, including a 1992 notation in which the worker mentioned low grade, intermittent, mild pain in his low back and neck which required no treatment. With respect to the condition of the worker s back in the years immediately before August 1994, she said the following:...from 1991, when [the worker] became a patient of mine, until the work accident, August 8, 1994, I did not treat [the worker] for neck, upper or lower back pain (apart from the July 17, 1992 complete chek up) nor did he ever mention any... [25] According to physiatrist Dr. Galvin, 1994 x-rays of the worker s back showed the following:...x-rays completed on August 11, 1994 and the thoracic spine showed moderately severe degenerative changes in the mid-thoracic spine (Forrester s disease). Lumbar spine x-rays
Page: 5 showed reduced lordotic curve consistent with muscle spasm and degenerative changes at T12, L4-5, and the lower third of the SI joint... [26] Dr. Galvin later reported that a (November 1994) CT scan showed the following:...a CT scan of the lumbar spine showed a mild degree of circumferential bulging at the L3-4 disc with no significant encroachment. At the L4-5 level, there was a mild degree of circumferential bulging of the disc with slight encroachment on the intervertebral foramina, but no involvement of the nerve roots. No abnormalities were noted at L5-S1. In my opinion, this is not a clinically significant CT scan. [27] In a 1996 report, Dr. Issakoff-Meller expressed the opinion that neither Forestier s disease, nor spina bifida occulta was the cause of the worker s back pain. She indicated that the worker did have degenerative changes at several levels of his spine and she was not in a position to comment on whether the relatively heavy and repetitive nature of his work over the past 27 years has caused the degenerative changes in his back although she did note that these degenerative changes did not occur overnight. Although she did not comment on the relationship between the general nature of the worker s work as a sheet metal worker and his back problems, she did say the following with respect to August 8, 1994:...what we do know is that prior to August 8, 1994, he did not have complaints of back pain other than mild and intermittent (at complete check-up on July 17, 1992) for which no treatment was required whereas after August 8, 1994 [he] complained of severe, limiting back pain... [28] The worker s claim was reviewed by Board doctor Dr. Bishop. The history to which Dr. Bishop was referred was that set out in previous Board memos which said that, although the worker was installing duct work on August 8, 1994, no specific twist or move was noted to have brought on pain in his low back - there was no incident which precipitated the onset - there is no work related accident history - the worker performed this duty of installing the Y duct exactly as he always had. Dr. Bishop noted that the Board adjudicators had not determined that any traumatic incident occurred and, after reviewing the medical evidence, Dr. Bishop concluded that there is no evident basis to determine that the mechanical low back pain is the result of installing duct work. [29] Other reports on file express the opinion that the worker s mechanical low back pain restricts him from doing certain activities which he previously did as a sheet metal worker. In 1995, physiatrist Dr. Galvin expressed the opinion that the worker is going to be limited in the long term with restrictions required around repetitive lifting, trunk rotation, twisting and repetitive activities involving the upper extremities. And in 1996, physiotherapist R. Quiring wrote that the postures that [the worker] would need to assume as a sheet metal worker would contribute to his condition of mechanical back pain. (iv) The findings [30] I accept the worker s testimony regarding the onset of his low back pain in August 1994. Having heard his detailed description of the work he was doing on August 4 when he first experienced low back pain, and also his description of the work he was doing on August 8 when he experienced the sudden acute low back pain for which he sought treatment, I am satisfied that the worker suffered a personal injury by accident within the meaning of the Act. On both of those dates, although he was
Page: 6 performing his regular work, that work required him to work in an awkward position. The onset of low back pain occurred when he was working in that position - and the medical reports indicate that working in such a position is compatible with the mechanical low back pain which was later diagnosed. In my view, some of the inconsistency between the worker s testimony and certain accident histories on file is explained by the fact that the written histories were much less detailed than the worker s testimony, and the position in which he was working, although awkward, was part of his regular job. [31] Having accepted his testimony with respect to the work duties he was performing at the time the low back pain for which he sought treatment on August 8, 1994, occurred, I conclude that the worker s employment was a significant cause of that low back pain. In coming to that conclusion, I have noted that there was some evidence that the worker had a pre-existing back condition which may have made his back more vulnerable to the type of injury he suffered on August 8, 1994. But that does not disentitle him from receiving benefits. Even if degenerative changes in his back also contributed to the mechanical low back pain which he suffered, I am satisfied that the work he was performing on August 8, 1994, was a significant cause of his low back pain and disability. In this regard, I note in particular the worker s family doctor s opinion with respect to the worker s condition before and after August 8, 1994, as well as the fact that she obtained a detailed history of the work the worker was doing and appears to have accepted the compatibility between that work history and the low back pain which the worker experienced on and after August 8, 1994. [32] I therefore find that the worker is entitled to benefits for the low back disability for which he sought treatment on and after August 8, 1994. I leave it to the Board to determine what benefits are payable as a result of this decision. THE DECISION [33] The worker s appeal is allowed. DATED: June 10, 1999. SIGNED: M. Kenny