My First Appeal with the WSIB Appeals Branch - April 17, 1998This part of my story is continued from the my story with the WSIB in the spring of 1998.
As I mentioned previously, on February 6, 1997, I suffered a workplace accident and subsequent workplace injuries. At the time, the WCB accepted the workplace accident. Where I was struck in the back, neck, and head, from bins, cases of oil and other items falling on me. The WCB also accepted an injury to my entire back, neck, and head. I was removed from work by my doctor. I was referred for and attended physiotherapy treatment.
In mid-April 1997, after a previous failed attempt to return to work,
I was again intimidated back to work by my employer. The WCB would later claim I was fully recovered when I returned to work in April 1997. However, in the medical discharge report of April 25, 1997 the WCB references, the report shows unresolved issues in my lower back and that I was able to resume my regular duties as I was capable of max lifting 65lbs.
This was incorrect, as I was regularly expected to lift considerably more than 65lbs.
Click on image to see copy of report
On July 7, 1997, I suffered another workplace accident and subsequent workplace injuries. I reported it to my employer both verbally and in writing, but this time my employer failed to report it to the WCB. As a result, the WCB denied the accident and subsequent injuries.
On August 20, 1997, I had seen my doctor to get stronger pain medication.
This was so I could work, but after my doctor examined me, my doctor had removed me from work.
In the Fall of 1997, the employer claimed I had not claimed any new accidents or that I had ongoing complaints from my February 6/97 accident and injury. As a result, the WCB denied entitlement to what they referred to as a recurrence of August 20, 1997. This meant they denied any benefits or medical treatment. The employer also refused to accommodate my disabilities claiming they did not have to.
Click here if you wish to read the entire story again.
Filing of Appeal - Jan. 1998
On January 5, 1998, I filed the objection form, or the actual Appeal to the WSIB Appeals branch. With attachments and a letter. In the appeal, I requested:
- To be compensated for all lost wages from August 20, 1997 onwards
- To be covered for all future and past medical expenses
- Claim to be approved
- Letter to be sent from the WCB to the Health & Safety Board of Canada raising concern of working conditions at Canadian Tire
In the appeal, I stated I was claiming entitlement for the following:
- Transportation costs for medical attention
- Restoration of credit rating
- Compensation for lost of income penalties and interest paid
In the matter of release of medical information.
I stated that I did not feel my employer should be provided my private medical information as it could be used against me in the future. This I knew to be true as they would routinely fire workers who had work injuries.
In the attachment to the appeal. I stated that I did have unresolved issues when I returned to work, but this was intentionally ignored by the WCB and the WCB consulting doctors. I was also concerned that the WCB consulting doctors never examined me. I also raised issue that the WCB consulting doctors never discussed the medical issues with my treating doctor.
I also informed the WCB appeals of the intimidation by the employer
to force myself and another injured worker back to work before we were properly ready.
Click on image to see copy of submissison
In the objection form, I had initially stated I would be representing myself. However, in the process, I learned of an agency called the Office of the Workers Advisor – OWA. Their job is to represent unrepresented injured workers. This is injured workers who are not represented by a union. The OWA took on my case in April 1998. The OWA sent a letter to the WSIB requesting access to the WSIB claim file. This is something that is needed to be done so any representative can have a clear picture of what transpired in the claim. To understand how or why a decision was made the way it was. The attached letter confirmed they had received access from the WSIB and I gave them authorization to represent me.
Additional submissions for my appeal
A report from Dr. Nyguyen, who was a neurologist, was sent to the WSIB. In the report, Dr. Nguyen explained that I had ongoing complaints in my back and lower limbs. He made mention of x-rays, which were taken, and he noted that:
“…were interpreted as normal, but [he] felt there was mild degenerative changes at L5 and S1 with slight retrolisthesis of L5 and S1”.
Click the image to downlaod a copy of the report.
I researched the medical term Retrolisthesis and learned that
“Retrolisthesis, or backwards slippage of a vertebra, is an uncommon joint dysfunction. A vertebra is a small bony disc that makes the vertebrae, a series of small bones that form the backbone. Each vertebra is separated by a cushion of intervertebral discs, which are made of cartilage.
Retrolisthesis occurs when a single vertebra slips and moves back along the intervertebral disc underneath or above it. It’s not the same as a dislocation. If the vertebra slips forward, it’s called spondylolisthesis.
Now remember Dr. Nguyen, as well as all documentation, describes the work accident as I was struck from behind by objects (bins & boxes). So, it is not unreasonable to conclude that the accident was much more serious that first estimated by the doctors and the WCB.
In addition to the medical report from Dr. Nguyen, I also submitted a letter from my former supervisor. The letter was addressed to the WSIB and a copy was sent to the OWA and my MPP. In the letter my supervisor explains that she was the manager of the drivers, at the time of her employment with my employer, Action Force. My supervisor goes on to explain that I suffered a workplace accident & injuries on February 6, 1997 and was off work. That when I returned to work in April/97 it was modified work, which was just driving. Then there was a return to regular work which required physical loading and unloading, as well as driving, which was in May/97. She explains that upon my return to regular work I had taken several days off work, due to my work injury of February 1997. She went on to state that she left in mid-June 1997 and confirmed that I was hardworking and honest.
What is missing is what happened to me after Monique left her employment with Action Force. I would suffer subsequent workplace injuries, because of additional workplace accident of July 7, 1997. This also resulted in numerous days off work. Of which, I reported to my employer, Action Force and Monique’s replacement Gregg and Todd. When they were questioned by the WCB on the telephone. Both Todd and Greg stated I never spoke them about any ongoing problems or new work accidents.
WSIB Appeal Decision
On April 17, 1998, the WSIB appeals resolution officer - ARO, Jeanet Lamoco, issued their decision. In their decision the ARO sates I was represented by the OWA and the employer chose not to participate.
This is something that raises a great concern! That when a party chooses not to participate the decision should be almost automatic, but in workers compensation maters, when the employer chooses not to participate the decision maker takes on the role of the employer. Raising concern of a complete lack of impartiality!
In the ARO’s decision, the following was determined:
- Full temporary benefits paid to me from August 20, 1997 until February 24, 1998,
- The WSIB would obtain up to date medical information to determine future entitlement beyond February 24, 1998 and degree of impairment
- The employer to receive 25% SEIF (Secondary Injury Enhancement Fund)
Click image to download the ARO decision
What was interesting with the ARO’s decision is that:
The first interesting point was the ARO, on their own, determined the degeneration to be pre-existing. That Dr. Nguyen’s report and the x-ray it was based on was done in January and February 1998, which was a year after my February 6, 1997 work accident. Yet, the ARO, on their own determined that the degeneration a “minor pre-existing condition”.
The degeneration was not pre-existing and was in fact work-related. This is based on looking at the two pieces of evidence (Dr. Nguyen’s report and the x-ray it was based on), in addition to my employer reporting no prior conditions, I can also confirm and prove, with past medical examination reports, that I had no prior condition.
Additionally, I was recently provided a medical journal paper from an individual of IWC. The medical journal paper confirmed that age-related degeneration in young adults is impossible. That age-related degeneration is not seen in adult until the very late part of our lives, when we are well into our 70’s. In the medical journal paper, it provides an example of a nurse who regularly performed heavy lifting and was an age of 29. In my regular work I would be required to physically hand unload trailers with thousands of pieces of products, some very heavy. Also, at the time of the accident I was 30 years of age.
Therefore, from a close review of the evidence, one cannot help but to agree the degeneration is work related, or what is commonly known today as a repetitive strain injury.
Sadly, the story does not end here and even more troubling is that I would be back at the WSIB appeals branch several more times.
The next part of the story is to return to
My Story with the WSIB after my first appeal with my 3rd documented work accident.
My next appeal to the WSIB was October 18, 1999.