Worker reported neck pain months after neck injury at work, but there was no connection between accident and later onset of symptoms
The Ontario Workplace Safety and Insurance Tribunal has upheld the denial of workers’ compensation benefits to a worker who filed a claim for symptoms almost a year after his workplace accident.
The 66-year-old worker began working as a mill weighman in 1978. Over several years, the ownership of the employer changed, including in late 2007. However, his job remained the same for almost three decades.
On July 22, 2008, the worker injured his neck while helping a contractor lift a banding arm. He sought first aid treatment immediately and returned to work. He didn’t have to take any time off, either that day or following the incident.
Almost one year later, in June 2009, the worker visited his family doctor complaining of pain in his neck. He claimed his neck pain had begun in January.
An x-ray was done on the worker’s cervical spine, revealing “scattered degenerative damage” which the doctor described as related to “an old injury.” The worker felt this was related to the incident at work and he filed a claim for workers’ compensation benefits with the Ontario Workplace Safety and Insurance Board (WSIB). He claimed he had occasionally felt pain since the workplace accident, though it wasn’t always present. It came and went with certain movements, such as a bump in the road while driving. He had finally gone to his doctor when the pain worsened.
Symptoms had been ongoing for 5 months
The worker’s family doctor provided a medical note stating that the worker suffered from neck stiffness that had been ongoing since January 2009 — about five months.
The worker also said his job required him to sit at his computer for 10 hours at a time while leaning over to watch machines below him. Though he said this was hard on his neck, he didn’t claim that his injury developed gradually but instead that his neck condition was a result of the incident at work on July 22, 2008.
The WSIB acknowledged the workplace accident but denied the claim, finding the significant delay in medical reporting and a lack of complaints from the worker during that time made it unable to find the worker’s current issues were related to the workplace accident. The worker appealed the rejection of his claim for entitlement, but an appeals resolution officer upheld the WSIB’s decision.
The worker took his case to the appeals tribunal.
The tribunal also acknowledged the worker’s accident and that an injury occurred. The injury was reported and treated immediately at the workplace, with the worker able to return to work afterwards.
The tribunal referred to the WSIB operational policy document defining the guidelines for determining proof of accident, which requires: an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history. The tribunal found the first four elements existed, but there was a problem with the last one. The guidelines also noted the importance of whether there were discrepancies in the date of the accident and the date the worker stopped working, as well as whether there was a delay in the onset of symptoms or in seeking health care attention.
There was no record of the workplace incident in medical records, the worker didn’t complete a form reporting the incident to the WSIB, and the medical records showed the pain started five months before the worker’s claim, not 11, said the tribunal. In addition, the tribunal found it unlikely the worker’s doctor would refer to an injury that took place less than one year previously as an “old injury” when he discussed the degenerative damage in the worker’s cervical spine.
“While we accept that the worker may have been stoic and may have chosen not to complain to his co-workers about the pain, there is no evidence that he complained to anyone, including his doctor, from the time the incident happened until 11 months later,” said the tribunal. “The worker waited almost a year to seek treatment for his neck, and when he did attend his physician’s office, the doctor’s medical note does not connect the worker’s neck pain symptomology to his workplace incident.”
The tribunal found on a balance of probabilities that the worker’s neck pain symptoms were not related to his workplace incident of the previous year. The worker’s appeal was denied.
For more information see:
• Decision No. 1415/16, 2016 CarswellOnt 11712 (Ont. Workplace Safety & Insurance Appeals Trib.).
