SUMMARY DECISION NO. 2339/00. Disablement (nature of work); Forklift operator.

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1 SUMMARY DECISION NO. 2339/00 Disablement (nature of work); Forklift operator. The worker appealed a decision of the Appeals Officer denying entitlement for a low back injury. The worker's condition was a disablement from the nature of his work as a forklift operator. The job involved prolonged sitting, full body vibration and repeated twisting when reversing. In addition, he was subject to repeated bumps while riding over uneven floors. The appeal was allowed. [6 pages] DECIDED BY: Baltman; Tzaferis; Meslin DATE: 29/09/2000 ACT: WCA

2 2000 ONWSIAT 2726 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2339/00 [1] This appeal was heard in Toronto on September 19, 2000-, by a Tribunal Panel consisting of : D. Baltman: Vice-Chair, M. Meslin : Member representative of employers, M. Tzaferis : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Officer, dated November 7, That decision denied the worker entitlement to benefits for a low back injury because he did not suffer a disablement while performing his job in June [3] The worker was represented by Ms. Chantelle Zehr. The employer was notified but chose not to attend. THE RECORD [4] The Panel heard evidence from the worker, translated from Korean, and from his co-worker. It also considered, Case Record, Addendum No. 1, correspondence dated June 22, 2000, June 26, 2000 and July 25, 2000, as well a an Ergonomic Report dated August 23, Ms. Zehr made submissions. THE ISSUE [5] The Panel must decide whether the worker suffered a compensable accident in June 1996 and is thereby entitled to temporary benefits under section 37 of the Workers Compensation Act, R.S. O. 1990, c. W.11. THE REASONS (i) Background (a) The Worker s Employment [6] At the time of the alleged accident the worker had been employed for over 13 years with the accident employer, a manufacturer of soft drinks. For the latter 10 years he worked as a forklift driver in the company warehouse. [7] The worker s evidence regarding his job duties and working conditions was credible and was corroborated by his co-worker, another forklift driver at the same warehouse during the

3 Page: 2 relevant time. Using the forklift, the worker would transfer skids loaded with product from a conveyer belt to wrapping, storage, and shipping areas in the warehouse. In a typical 8-hour shift he would make approximately 250 such trips. On occasion he was required to dismount from the forklift and restack cases of pop. [8] The job required prolonged sitting on the forklift. The forklifts had electric motors and noninflated hard rubber wheels. The seats were flat vinyl-covered pads filled with foam, and several were in disrepair, with torn covers and foam coming out. The forklifts had no suspension. The backrests were small and not contoured for the lumbar area. There were no armrests. [9] Although in most cases the forklifts were driven forward when transferring skids of product, it was necessary to reverse on a regular basis when backing up from the production line, the wrapping machine, or from stacks of product in the warehouse. The worker was required to twist around each time he reversed, as there were no rear view mirrors on the forklifts. [10] The floor was concrete and contained seams where the floors from two different areas were joined. This caused the forklift to bump up and down 2-3 times on each of the 250 trips. The forklift would also bounce when it passed over a steel plate near the trailer area. Even when travelling in the smoother areas, the worker experienced an almost constant vibration because of the absence of suspension or seat support. The worker could not minimise vibration or bumps by slowing down, because that would delay the production line. [11] The company has since replaced all the forklifts with new, superior machines and patched up the flooring in the plant. [12] There were five forklift drivers working during each shift, four in the production line described above and one as a spare or utility driver. The utility driver supplied materials for the production line and removed bins filled with waste material. Unlike the production drivers, who spent almost all their time on the forklift, the utility driver performed approximately 40% of his work off the forklift. This job, however, was heavier because the worker sometimes had to move bins onto the lift by hand, or handle materials by hand. Each forklift driver spent one out of every five weeks as a utility driver. (b) The Injury and its Aftermath [13] The worker testified that early in 1996 he began to experience pain in his lower back, which he attributed to the prolonged sitting, twisting while reversing, and whole body vibration that he experienced while driving the forklift. For several months he was able to manage the pain by having his mother massage his back and resting in between shifts. In May 1996, however, the pain began to increase, and by June 8 th had reached a point where he consulted with his family physician, Dr. Rittenberg, to whom he related the cause as riding in forklift truck that bounces a lot. Dr. Rittenberg diagnosed low back pain and recommended that the worker take two days off, which he did. After returning to work for three more days his pain resumed and he took another few days off, as holidays, in order to recover. He returned for four more days (as a utility driver) but on June 20th was forced to stop because of severe pain in his back. He also experienced numbness and tingling radiating down his left leg. He then reported the matter to his employer for the first time.

4 Page: 3 [14] He testified that he had not notified his employer earlier of the problem because he did not like to be a nuisance and hoped that his back would recover on its own. The company doctor recommended that he take some time off work. A CT scan performed in August 1996 revealed a disc herniation at L4-L5. The worker underwent physiotherapy and chiropractic treatments and performed various exercises at home. [15] Having improved somewhat, the worker tried to return to work on September 30 th, working 4 hours a day. His symptoms worsened and he was forced to stop working around the middle of October 2 weeks later. He remained off work until March 1997, when he returned to modified duties on a graduated basis. By July 21, 1997, he had returned to full-time work with the accident employer, but at a lighter job, which he continues to perform today. [16] There was no evidence of any previous history of back injuries. The worker testified that he had never before sustained injuries at the workplace or in a car accident. His activities outside work focussed on family and church, and were largely sedentary. The co-worker, formerly a union steward, described the worker as a quiet and conscientious employee, who was disinclined to complain or confront. The panel drew a similar impression of the worker. (ii) Analysis [17] The Act requires compensation to be paid if a worker suffers personal injury by accident arising out of and in the course of employment. The term accident in the Act includes not only sudden or chance events but also a disablement arising out of and in the course of employment. [18] In this case, the Board disallowed the worker s claim on the basis that he did not suffer a disablement arising out of and in the course of employment. It advised the worker that a gradual onset of back problems is not considered work related unless he can demonstrate that it arose from either a specific incident at the workplace or a significant change in job tasks. [19] Both Board policy and extensive caselaw at the Tribunal have established that the term disablement includes a condition that emerges gradually over time and which has a causal relationship to the work being performed. It need not be related to a specific trauma or a change in job conditions; the term is sufficiently broad to include injuries resulting from the ordinary performance of employment over a period of time. However, it is not sufficient that the disablement comes on during work; the worker must demonstrate that there is something about the work activities that led to his injury. [20] In this case the Panel is satisfied that there is a causal relationship between the work performed by the worker and the disability. The evidence of the worker and his co-worker indicates that the job entailed prolonged sitting, full body vibration and repeated twisting while reversing. In addition, forklift drivers sustained repeated bumps while riding over uneven portions of the floor. Dr. M. Kleinman, a physiatrist who examined the worker at the request of Dr. Rittenberg, diagnosed mechanical back pain from lumbar strain. In his report 1 of September 9, 1996, Dr. Kleinman stated that although there is no history of an acute event at 1 This was the sole medical report to address the issue of causation.

5 Page: 4 work, it appears from his history that his symptomatology may well be directly related to work activities. [21] The worker had no pre-existing injuries to which this discomfort could be attributed. He testified that his pain worsened toward the end of each workday and was lighter at the beginning, which is consistent with it being work-related. He attributed his discomfort to the repeated performance of routine tasks, and produced a report by an Ergonomic Specialist (Exhibit 4) which confirms the causal relationship between his regular job duties and his diagnosis. Although the report was initiated as a result of another worker s claim, it involves the identical employer, worksite and position. It was prepared in December 1998, after this worker s injury but before the accident employer repaired the floor and replaced the forklifts. The report concluded that there are risk factors in the forklift operator job for low back injuries. In particular, it found: Prolonged sitting without support of the lumbar spine increases pressure on the intervertebral discs and causes the joints of the spine to become more lax. Whole body vibration, particularly when driving machines without adequate shock absorption, increases compressive loading on the spine, leading to muscle fatigue and possible disc flattening and herniation. The risk is greater where the vehicle moves over bumps or uneven surfaces. Twisting while driving compresses and twists the discs and can result in pain in the back and lower extremities. [22] The Panel finds that it is more likely than not that a causal relationship exists between the physical demands of the worker s job and the medical diagnosis. The Panel therefore concludes that the worker suffered a disablement arising out of his employment, which caused his absence from June 8, 1996 until July 21, [23] The Panel declined to consider the issues of a permanent impairment and/or NEL assessment. Although the worker may be entitled to such benefits, we leave it for him to raise those issues with the Board.

6 Page: 5 DECISION [24] The appeal is allowed. The worker is entitled to temporary total benefits from June 8, 1996 until his return to part-time work in March 1997, and then to temporary partial benefits until his return to full-time work on July 21, The Board is asked to determine the correct amount under section 37 of the Act. DATED: September 29, 2000 SIGNED: D. Baltman, M. Meslin, M. Tzaferis