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Profilés from doors and windows royal #9 and Ben Abbou

Profilés from doors and windows royal #9 and Ben Abbou

2015 QCCLP 3586

 

 

COMMISSION OF OCCUPATIONAL INJURIES

 

 

Montreal

29 June 2015

 

area :

Montreal

 

records :

535855-71-1403      549328-71-1408      549763-71-1408

552762-71-1409      558137-71-1411

 

CSST files :

141831115   142351832   142531167

 

commissioner :

Sylvie Lévesque, administrative judge

 

Member :

Pierre Girard, associations employers

 

Michel Gravel, associations union

 

 

assessor :

Christian Hemmings, doctor

______________________________________________________________________

 

535855         549328

549763         552762         558137        

 

 

Profilés from doors and windows royal #9

Said Ben Abbou

part applicant

part applicant

 

 

and

and

 

 

Said Ben Abbou

Profilés from doors and windows royal #9

part interested

part interested

 

 

______________________________________________________________________

 

DECISION

______________________________________________________________________

 

 

record 535855-71-1403

[1]           the 11 March 2014, Profilés from doors and windows royal # 9 (employer) deposited on the Commission occupational injuries a query which he challenges a decision made by the Board of Health and work safety (CSST) the 4 February 2014 after a revision administrative.

[2]           With this decision, CSST confirms decision it dated 14 November 2013 and declares that Mr. Said Ben Abbou (the worker) suffered an accident at work 25 October 2013 whose diagnosis is lumbar sprain.

records 549328-71-1408 and 549763-71-1408

[3]           the 13 August 2014, employer deposited on the Commission an occupational injury Application by which it disputes a decision of the the CSST 7 August 2014 after a revision administrative.

[4]           the 19 August 2014, the worker deposited on the Commission an occupational injury Application by which it disputes the same decision rendered by the CSST 7 August 2014 after a revision administrative.

[5]           With this decision, CSST concluded that worker's claim was produced outside the time limit to the law on labor accidents and occupational diseases[1] (the law), but has shown reasonable cause to relieve him of its failure and confirms on other grounds the decision it made on 9 June 2014. It states that the worker suffered no injury the professional 15 October 2013 and has not right to benefits under the law.

record 552762-71-1409

[6]           the 27 September 2014, the worker deposited on the Commission an occupational injury Application by which it disputes a decision of the the CSST 9 September 2014 after a revision administrative.

[7]           With this decision, the CSST confirmed its decision dated 31 July 2014 further to rendering opinions by a member of the Bureau Medical Evaluation dated 23 July 2014 on lesion of the 25 October 2013 that holding a consolidation date the 26 June 2014, of the care sufficient, no permanent impairment and not limits functional.

record 558137-71-1411

[8]           the 25 November 2014, the worker deposited on the Commission an occupational injury Application by which it disputes a decision of the the CSST 20 November 2014 after a revision administrative.

[9]           With this decision, the CSST confirmed its decision dated 4 August 2014 and declares that worker's claim is inadmissible and he did not right to benefits under the law.

[10]        The hearing was held in Montreal on 14 April 2015 in the presence of worker was represented and the employer's who was represented. The record was set under advisement to same date.

SUBJECT OF DISPUTES

record 535855-71-1403

[11]        The employer asks the Commission lesions Professional to reverse the decision rendered by the CSST 4 February 2014 to Following an administrative review and declare that the worker has not suffered a work injury the 25 October 2013. he asks that are recognized the findings of the doctor Koniouchine, having examined the worker at his request dated 9 January 2014, namely that the diagnosis is one of lumbago secondary to disc disease home personal (diagnosis not lesional), the date of consolidation is the 9 January 2014, there is no care suggest and not permanent impairment or functional limitations to acknowledge in this folder given that is not a diagnosis lesional. alternatively, if the court was coming to the conclusion that the diagnosis is a sprain lumbar, the employer requests to retain the date of consolidation doctor Koniouchine, without permanent impairment or limitations functional.

records 549328-71-1408 and 549763-71-1408

[12]        both the that worker employer indicate not not have representations how in This folder.

552762-71-1409

[13]        The worker asked the Commission occupational injuries to reverse the decision rendered by the CSST 9 September 2014 and to declare that the consolidation date the 9 March 2015, there is adequacy care, an anatomical deficit-physiological 2 % and functional limitations, all as Recommended by doctor Morris Duhaime, doctor who examined the worker its application dated 9 March 2015.

 

record 558137-71-1411

[14]        The worker says have no representations how in this and leave while at discretion of the court.

FACTS

[15]        the tribunal clarifies beginning that the worker is suffering from mental health problems and was accompanied, to hearing, a speaker psychosocial from a body communal Mental Health. The worker was médicamenté and the court could see that was fit to witness, and this, all along hearing.

records 535855-71-1403 and 552762-71-1409

[16]        the worker occupied function daily with the employer.

[17]        the 10 June 2013, before event alleged, the worker benefits a study in magnetic resonance Lumbar spine in related a diagnostic suspecté herniated disc. examination shows protrusions disc multiétagées of the3-L4 to L5-S1, the protrusion being greater the level L5-S1 and s'accompagnant a tear radial with contact disc on root left S1.

[18]        the 15 August 2013, always before event alleged, Dr. Pierre Giroux meeting the worker to to make a medical examination préemploi for employers. In its review physics column, he ... not found no deviation, mobilization the cervical spine is ample. At the lumbosacral spine, rotations side are 40/40, the forward flexion is 90 degrees, right side and left to 30 degrees, extension to 35 degrees and muscularity qualified good. the sign of Lasègue and the tripod negative, index modified from Schöeber is of 20/15. under « remarks », Dr. Giroux written « normal examination except lumbar disc herniation (personal condition proven by resonance) ».

[19]        dated 15 August 2013 also, a « protocol d'imagerie medical » is done at the request of Dr. Giroux which indicates what follows to the column lumbosacral :

COL. LOMBOSACRÉE

 

Discrète scoliosis dorsolumbar to convexité right. light pinch L4-L5, pinch a bit more Mark L5-S1, without further degenerative phenomenon or other anomaly visible.

 

 

[20]        dated 27 August 2013, after considering the results home medical, Dr. Giroux corresponds to the issue whether the worker's health is compatible with requirements post, and he places a crochet to indicate that this is the case, and this, without restrictions.

[21]        the 29 September 2013, the worker spends magnetic resonance of the column without lumbar contrast, reported by doctor Rafat Zand :

printing :

 

Decreased size of the disc extrusion at L5-S1 ace Described Above.

Stable Findings at L3-L4 and L4-L5.

 

 

[22]        dated 25 October 2013, the worker alleges that he raised a box and felt pain lumbar. in the document « Worker's Claim », this last described event alleged as follows :

sprain dorsal following has a raising box during my shift of work. [sic]

 

 

[23]        At the hearing, the worker says it is gone assist a colleague to lift a box. it has occurred to 15 h. the colleague raised at the same time as to him box that mesurait between 12 and 20 feet length. The worker says « Perhaps that is not synchronisés and I have lâché ». he takes the box between nombril and there chest. he adds « then he must walk a little, two or three not ». it lifts then box up to chest. it testifies need file the box in the « rack », must flex legs and try down vertically, according to that told the worker to hearing. he has felt difficulty in her back, it has « claqué ». guest to say At what moment he had felt pain in, the worker answers : « in rising the box and the depositor ». he said a little later : « in rising the box I felt The pain, in the depositor I have able hold Longer and I am fell crouching ». He says the evil was more left only right, in the lower back. it testifies have continued to work thereafter on saying that « it happen ». He added that not remained not much to do for end the day.

[24]        The worker says also that « that takes a rotation with the box, otherwise you rentres in the wall; tone back he must lean to file the box and you do rotation ». A bit later, the worker says : « you descends vertical and after you you penches a little because of rack, We have to do rotation and do a angle ».

 

[25]        He does not know exactly weight of the box, but said that « You can not here lift all single, it takes two people ». The worker says he talk about his pain overseer Who lives next to home and that it giving of the « lifts » and to gentleman Yvon Tousignant.

[26]        The worker says that he worked about for 12 hours and started to work with the employer in August 2012. Prior to that he says he worked also for them, being employee d'agence.

[27]        Arriving at home the evening 25 October 2013, he goes pharmacy at and s'achète medication without prescription for fight his pain, but it is not effective, according to his testimony.

[28]        the next day, 26 October 2013, he resumes the job but is not able to « end his shift ».

[29]        The worker says event the employer the 26 October 2013 and stopped working. he says this day-there, the pain was more intense that the eve.

[30]        A document declaration accident, filled by Mr. L'Écuyer and signed by the worker, is on file. the date where accident was declared is indicated as the 26 October 2013, around 10 h 30. this form signed dated 31 October 2013 and a witness named Yvon Tousignant is mentioned. The details accident are written as follows :

Said working on his line. Yvon Tousignant has called for to help put the box in the rack (of the trépied). Said is headed the trépied took box (that ranged on the trepied to height between nombril and there chest) for the put in the rack in before. he has  taken box and there filed in the rack. in the putting in the rack, felt a pain (claqué) in the back. [sic]

 

 

[31]        the 29 October 2013, the worker consults Dr. Cheryl Garber who diagnosed a sprain lumbar and recommends work stopping. this same diagnosis is resumed 1st November 2013 by Dr. Garber. The worker says hearing he had not from Family doctor, in order that he had visit several doctors different.

[32]        the 5 November 2013, the doctor G. butcher poses the diagnostic « low back bread » and prolongs stopping working.

[33]        The progress notes of the 7 November 2013 report that told the worker the agent compensation CSST about in the event alleged:

T mentions that event is arrived end of his shift work Friday in helping a colleague to lift a box very pesante. T says he felt strong heat in the back, that thought leave quickly. T says it is returns Saturday hand worked all in thinking that bougeant the most as possible The pain going disappear. T mentions that pain was so much intense he did not able finished the day. he has notified his supervisor and is returns his home. T says he tried to himself cure, but in vain.

 

T says that the Monday he had pain atroces, was not able to move, he took drugs and at the time it felt able to move they are visited urgency. [sic]

 

 

[34]        dated 15 November 2013, the doctor Michael Golgoon does not consolidate the lesion and continues physiotherapy.

[35]        the 20 November 2013, the doctor May poses a The disc herniation diagnosis3-L5 and heads the worker urgency to remove syndrome Dick from horse.

[36]        the 25 November 2013, the doctor Golgoon poses a sprain diagnosis lumbar and The radiculopathy3-L5 without improvement.

[37]        the 5 December 2013, the doctor Buch poses a diagnostic sciatica, prescribed Lyrica and one corset.

[38]        the 3 March 2014, CSST, in a decision made following a administrative review, confirms that the diagnostic The herniated disc3-L5 is not relationship with the event 25 October 2013.

[39]        the 25 March 2014, the doctor Peter Jarzem, orthopedic surgeon, a diagnosis of « left sciatica secondary to The herniated disc5-S1 ». He recommends electromyogram (EMG) and one block épidural.

[40]        dated 27 March 2014, the doctor stud Boivin, orthopedic surgeon, examines the worker on the request of the CSST in order to decide on the diagnosis, care, the permanent impairment and the functional limitations.

[41]        the doctor Boivin questions the worker over exactly on the way installation symptomatology painful. the individual worker mentions that can not determine the weight of the load he manipulée and despite its back pain, it was measurement complete its shift.

 

[42]        In the area the « discussion », the doctor Boivin wrote :

[…]

 

Subjectivement, Monsieur said very symptomatic and strongly limited on the plan functional meet its activities everyday.

 

On the plan purely goal, I am in the presence of a worker shows incoherently and reactions exaggerated palpation and when attempt Assessment amplitudes articular at the spine lombo-sacred and members lower. D'importantes discrepancies and inconsistencies were rated inter alia during the examination of two hips when considered in Monsieur Ben Abbou can to sit on the table while two hips and both knee are fléchis to 90 degrees then that decubitus dorsal, it me been impossible d'amorcer any motion. all the maneuvers tensioning root lower limbs performed sitting and in position lying have caused quickly pains then no constraint was applied both in lumbar at the level lower limbs themselves. the hardship from Waddell proved strongly positive, all as there maneuver Hoover. finally, reviewing Neurological members lower did not permit neither d'objectiver any achievement root sensitivomotrice home organic.

 

[…]

 

 

[43]        the doctor Boivin concludes a diagnosis lumbar sprain, the date of consolidation is the 27 March 2014, care sufficient and there is no permanent impairment or limitations functional to remember.

[44]        the 10 June 2014, the doctor Peter Jarzem says in agreement with the conclusions doctor Boivin.

[45]        dated 26 June 2014, is the tower of the Dr. Jacques Demers, neurosurgeon, and member of the Evaluation Office medical, to examine the worker. he must decide on the date of consolidation, care, the permanent impairment and functional limitations. his anamnesis, the doctor Demers indicates that the worker « it's done back pain the 25 October 2013, lifting a box heavy and has not able complete its shift ». under « condition current », the doctor Demers indicates that the worker he expressed his mental state who has summer questioned and has hospitalized for this reason. The worker says doctor Demers his House has summer destroyed by chats and its dog is death. the doctor Demers reports a Note the urgency of Hospital general Juif of Montreal, dated 20 November 2013, who does mention in the antecedents a diagnosis of schizophrenia.

[46]        the doctor Demers can not achieve reviewing physical goal, considering the positivité a many signs not-organicity. he writes moreover, in its report :

DISCUSSION

 

I am bound diagnostics sprain lumbar. it's the diagnosis of occupational injury retained by the CSST. note that sprain occurs in a context spondylo-discarthrose demonstrated magnetic resonance in a person who suffers likely schizophrenia. In evaluating present-day, gentleman Ben Abbou did not mention that takes pharmaceuticals antipsychotics. His behavior was rather strange. it poster a behavior pain severe. he consults his I Phone all along interview and bears much attention at that little device that holds in his right hand. […]

 

 

[47]        the doctor Demers establishes date of consolidation the date of the review, either 26 June 2014, all in noting that doctors Jarzem and Boivin agree relative to fact that additional treatments were not required for the worker. it indicates as the worker no longer treatment active right now and that as a according to literature scientist, Administration treatments extended in context a sprain diagnosis is not recommended. as for « care/treatments », the doctor Demers indicates that if the condition of psychiatric worker was stabilized, it would be possibly more easy to an assessment adequate. As for deficit anatomical-physiological, the doctor Demers written it is impossible to do evaluation objective of l'ankylose the lumbar spine in workers. it notes, however, the doctor Peter Jarzem, orthopaedist, agrees with the doctor Boivin when mentions that no continuing breach physical integrity. As for functional limitations, the doctor Demers mentions :

In the same way, it seems like all the world means to lack thereof functional limitations rattachables to sprain with M. Ben Abbou. Given the finds the resonance magnetic, I believe that gentleman Ben Abbou will have to Pay attention to his back as anyone is a physical work. dated present-day, I can not see reason medical objective for him impose limitations permanent functional. [sic]

 

 

[48]        the 9 January 2014, is the tower doctor Vladimir Koniouchine to examine the worker at the request of employer. it must decide the diagnosis, the date of consolidation, care required, the permanent impairment and functional limitations.

[49]        the doctor Koniouchine relates the description Event that he did the worker :

This was because gentleman Ben Abbou m'indique that the 25 October 2013, he has raised box, as it does in a way usual, help of any of its colleagues. it m'indique he fléchi the knees he raised the box. It is this moment that m'indique have felt a discomfort lumbar, mostly left. it m'indique it was in measurement end his working day. […]

 

[50]        in its file review, the doctor Koniouchine notes that, previously, dated 19 December 2013, the worker had introduced to his clinic to stand expertise. In evaluating, the worker had a state of decompensation psychiatric and the survey was very difficult and laborieux. the survey, the doctor Koniouchine noted that the worker was taking medication antipsychotics and had no follow active. it was also in waiting having a assessment psychiatric, whose date was unknown. the doctor Koniouchine had requested transport ambulance with police to the closer hospital when evaluated of the 19 December 2013, holding that the worker could submit a danger and in the purpose that suffers assessment psychiatric.

[51]        under « condition current », the doctor Koniouchine reports that the worker told him his condition did nothing improved and capable worse. it accuses lower back pain important and a pain in the member lower left in a way broadcasts, without compliance with dermatomes, according to Dr. Koniouchine.

[52]        under « summary », the doctor Koniouchine shows :

[…]

 

it was famous for disc disease slight L3-L4, L4-L5 and L5-S1. He was evaluated herein by Dr. Giroux in August 2013 and it was found capable employment.

 

the 25 October 2013, it seems raising a box and having felt a discomfort lumbar. It was in measurement end his working day and has even worked on next day. TO Note that description of event residence difficult specify and nébuleuse.

 

[…]

 

examination goal present-day shows a worker has a gait d'allure catastrophique, amplitude dorsolumbar complete bending when it is able to to sit square on Table Examining with the legs déclives, and discrepancies important when pressure axial and rotations in block.

 

 

[53]        the doctor Koniouchine passed a Radiographic column lumbosacral the worker the same day of his review. the doctor Pierre Boulianne, radiologist, in fact interpretation next :

slight incurvation towards the left spine lumbar, who was incurvé to the right on review previous, which seemed so only positionnel. One notes always slight pinch from space L4-L5 and one pinch moderate L5-S1.

 

 

 

 

[54]        As regards the diagnosis, the doctor Koniouchine written :

➢  Considering description mechanism the accidental 25 October 2013, form a job normal when raised box, without had any motion sudden and sudden;

 

➢   considering that that worker carries lumbar disc disease multistage;

 

➢   Considering that the this worker from multiple discrepancies between reviewing objective and the complaints subjective;

 

the diagnosis to remember in the present folder is LBP secondary to lumbar disc disease home personal.

 

 

[55]        According to Dr. Koniouchine, date consolidation the 9 January 2014. As there is no diagnosis lesional, again according him, notions permanent impairment and limitations not functional not apply in this case. If the CSST holding a diagnostic lumbar sprain, the doctor Koniouchine recommanderait no permanent impairment is recognized related this diagnose.

[56]        the doctor Koniouchine testifies hearing. it told the worker that, in its review, he expressed his condition is worse, that sleeps evil. The worker déplaçait with cane and when the doctor Koniouchine conducting a palpation of the lumbar column, it was very sensitive. While he was doing tests Crusaders, the worker could to sit in a angle 90 degrees; according to him reviewing physical was not reliable.

[57]        the doctor Koniouchine said after heard from the worker witness, his vision is the same as to sprain lumbar, that is to say it is not agree with this diagnose, now rather hers, which is one of the lumbago secondary to disc disease home personal (diagnosis not lesional). There was no, in the case the worker, a elongation brutal to severe level of the column. 

[58]        the doctor Koniouchine says, according to description what is the worker hearing event alleged, from even that, from the video view hearing, the mechanics of production a lumbar sprain are not present. He added that the box was not by earth, the worker is not leaning, he had the back and right did a movement who has sought plus and arm not the lumbar spine. it also says that on video « at most we see a motion bascule, but it's not lumbar ».

[59]        the doctor Koniouchine told the worker that suffered already lumbago for five or six years, It is not new. the worker had even had a complete work stoppage because of pain disabling.

[60]        According to Dr. Koniouchine, in that the worker has pain in working is only a simple coincidence. it is a lumbago purely mechanical and not an event traumatic; there has been no torsion, weight manipulated was little demanding, there no production mechanism a sprain, the worker has not escaped the box, there has been no breakage equipment. At most, There was five degrees of flexion of the column.

[61]        the doctor Koniouchine compares what happened the worker like this that would arrive at someone who do one accident vascular cerebral (AVC) where a infarct on the workplace : it reaches the job but there is not any link to work.

[62]        the doctor Koniouchine believes that its review and that of doctor Boivin are identical or almost to all views and Evidence no signs organicity. thus, even palpation slight fact ache worker, according to him.

[63]        he notes that, with respect the spine of the worker, measures obtained are low over time : to his review he has 15 degrees, the doctor Boivin gets five degrees and when considering doctor Demers, he gets 0 degree.

[64]        the doctor Koniouchine does not agree with the findings of the doctor Duhaime, because according to him, it base only on the allegations of worker to grant anatomical deficit-physiological and functional limitations. as its review was not reliable, it should not have grant it. He says the doctor Duhaime has never makes tests Crusaders such as test rotation passive.

[65]        too, the doctor Koniouchine testifies that growth that worker demonstrates that this is not a sprain lumbar. according to him, the « peak » a sprain lumbar himself product in from 24 to 48 hours and disappears in in eight weeks, whereas now the worker much symptomatic otherwise worse; it must be a other diagnosis, It is not lumbar sprain par.

[66]        the doctor Koniouchine indicates to have a mechanism accidental to get lumbar sprain; must have a jerk, the worker perde foot, it to do a fake motion. When the pain arrive simply, it can not be question lumbar sprain, must there was a mechanism accidental.

 

[67]        invited to express oneself on the opinion doctor Giroux, given before the accident alleged, that concluded that the health status of the worker was compatible at the end August 2013 with the requirements job, believing also the worker could work with no restrictions, the doctor Koniouchine replies that « it is fair a questionnaire where the said worker some things, I do not not know if the worker all declared. I when I have seen, he ... not me not spoken its history ». A bit later hearing, the doctor Koniouchine recognize he knew that the worker had spent magnetic resonance examination in June 2013 and was « possible employer m'avait forwarded a copy it ».

[68]        As regards the limitations functional recommended by the doctor Duhaime, the doctor Koniouchine is believes that it This is not functional limitations preventive and what are based only on pains alleged by the worker.

[69]        invited to say if knew that the worker had placed the box after have launched, the doctor Koniouchine replies that cannot give more information which is wrote in his report.

[70]        questioned whether the worker had raised and launched the box, as it is shown in video view hearing, the doctor Koniouchine replies that has no certainty and it was not there.

[71]        dated 19 March 2015, is the tower of the doctor Morris Duhaime to examine the worker his request. he has to decide on the relationship between event reported and diagnosis sprain lumbar and he is questioned whether the worker suffered an accident of the work and, if appropriate, What is the diagnosis to remember. too, he is request decide on points 2 to 5 Article 212 of law.

[72]        under « history disease current », the doctor Duhaime reports this the worker himself said as to event the alleged 25 October 2013 :

that day-there it raises a box weighty 50 to 60 lb with help a colleague and feels lumbar pain. It is this that described in his complaint of worker.

 

 

[73]        under « discussion », the doctor Duhaime mentions again About worker on event the alleged 25 October 2013 :

the patient conducting a job physical and important we has described event occurred on 25 October 2013; he has had to raise cans, cans that levait with a fellow worker, many times per day a cadence important. At one point given, in rising one of cans for the to drop a place accurate, that is to say by a bender and rotation with effort, he has feel pain at the bottom of back, lumbar region low.

 

 

[74]        The worker says doctor Duhaime he a pain constant, this 24 hours 24 and that locates the lumbar region lower with irradiation inguinale left left knee, calf Left and heel left. The worker himself also relates that the pain can manifest without reason apparent and without relationship with any activity.

[75]        In its review goal, the doctor Duhaime written only clinical examination, despite the state suffering the worker, He had his full collaboration. He noted that the worker march tranquillement with stiffness of the hinge lumbosacral, but without lameness. there's no d'atrophie the mensurations both lower limbs. the tripod Law and tripod are left voted negative and in decubitus dorsal, he ... not can interpret nor the Lasègue right or the Lasègue left since the lesser elevation legs beyond a 30 degrees causes back pain important with irradiation pain both buttocks posterior.

[76]        the doctor Duhaime, always its review goal, does not find deficit segmental engine in the myotomes of the2 to S1 lower limbs right or left.

[77]        the doctor Duhaime examines the Mobility hinge lumbosacral written what follows :

[…]

 

At the exam Mobility of the hinge lumbosacral, despite all the maid willingness patient as it arrives not flex the hinge lumbosacral beyond a 60 degrees, extension is also limited to 10 degrees, lateral bending right and left himself mobilisent to 30 degrees as well as right and left rotations to 30 degrees. these values are obtained with insistence and reproduced to the repeat, confirmed during tests Crusaders when considering in decubitus ventral and dorsal.

 

[…]

 

 

[78]        the doctor Duhaime also indicates that the worker consultation the 25 April 2013 in emergency Hospital Centre General Lakeshore to lumbago. he writes on this subject :

[…] The doctor says this patient has a lumbago from 5-6 years, increased with the change working and one deterioration since a year. It presents a back pain left with irradiation until calf. the patient find that foot is left more low. […]

[79]        the doctor Duhaime concludes a diagnosis lumbar sprain Whereas in the following :

-clinical examination current demonstrating limitation of the mobility lumbar, unsigned d'irritation root;

-event described by patient as likely to cause lumbar sprain;

-the file reviewed;

-the fact that this pain persists in the time

-the different imageries which are reported file;

-in that the this patient a spine lumbar very precarious and is carrier disc disease tiered;

 

 

[80]        the doctor Duhaime writes that clinical examination demonstrates that the patient trauma in the lumbar region dated 25 October 2013 and continues showing be believes that event traumatic caused lumbar sprain this patient.

[81]        the doctor Duhaime believes that the date of consolidation in its examination, either 9 March 2015, care are sufficient, he grants an anatomical deficit-physiological 2 % according to code 204 004 to sprain with lumbar functional limitations. it recommends the following functional limitations, after considering his physical examination and by based on of the « functional sequelae objectified :

this patient must :

-avoid lifting, wear, push, shoot load exceeding 20 kg;

-avoid working squatting;

-avoid situations vibration to the lumbar spine and kickbacks in column lumbar;

-avoid movements extreme bending, rotation and d'extension-rotation the hinge lumbosacral.

 

 

[82]        Jean-Sébastien L'Écuyer is also come testify hearing. he is Human Resources Director for the three factories that has employer. It is this post since October 2013.

[83]        Mr. L'Écuyer said that at Factory St-Laurent there's no d'assemblage which is. he said « one extrude of the profilés from PVC to the industry of the fenestration », and next, it is envoy at the customers are manufactures from doors and windows. There is about 90 employees St-Laurent.

 

[84]        In St-Laurent, different functions exercised, the main being that d'opérateur, as the did worker. he has there different degrees d'opérateurs, whether D, C, B and TO. The Operator D is one that begins. Mr. L'Écuyer states that it is requested the Operator D to be able to maintain the machine according.

[85]        Mr. L'Écuyer said there has a formateur to full-time which gives classes operators to.

[86]        The worker was a operator D. As, he had to do from l'emballage, check the cleanliness of the machine (who was powered in powder or granules), ensure that not lack no materials first and if there is a issue, be called the overseer, make controls visual to ensure that the coins were correct, make controls from quality.

[87]        Task on which the incident alleged is product is here task l'assemblage. This is the latest the step of line. if is small coins, between six and 30, they are updates in a box. for coins greater, the boxes are updates on rack.

[88]        a video tour with the employer is shown to the hearing and commentée by Mr. L'Écuyer. he explains that sees from l'emballage in box on video, the profilé fate, go in a box; when the box contains number of coins specified by the customer, she is enveloppée, scellée and then, together people, the box is set on a rack and the rack is then sent. he says the boxes are launched in the rack and that weigh about 40 books. There is five or six cans wide in the rack. If a one person take it box and the lance or whether the box is taken them extremities, it plaice. both workers must place the two-thirds or three quarters of the box. There is between 30 and 40 cans by rack.

[89]        invited to say how proceeded the worker to launch the box in the rack, gentleman L'Écuyer answers « I do not could not say ». he adds « we have never accident Thereupon ».

[90]        Mr. L'Écuyer said that employer factory frames from doors and windows and parts have general between 12 and 16 feet length.

[91]        he said also it is a middle very safe For years. The employer belongs to Axial, a company American, and rules health and security very demanding are presented.

 

[92]        at the begining, the worker was an employee d'agence. Mr. L'Écuyer said « it is learns, is the shape in relates the lifting load, the knives, the driveways to pedestrians ». it there has training also every Fridays and all operators are too summoned once a month. there is a formateur full time which gives classes operators to.

[93]        The worker first of all been engaged in 2012 as employee d'agence to make task base, given that there has « peaks » production in the summer, whether April to October. the worker was subsequently hired in August 2012, because the Director of production had loved his work. He was laid off at the end of the month November 2012, for lack of working. then he was recalled year from when « this is once more more busy ».

[94]        During the period where it was laid off, gentleman L'Écuyer says the worker had a « episode back » from kind that a review from préemploi had to be fact to find out if his condition was compatible with requirements his position. in his case there has been placed « Workforce » without reservation, continues gentleman L'Écuyer.

[95]         Mr. L'Écuyer said that It is him who to the filled report of accident the 31 October 2013. normally it's the overseer, but as He had not was notified, It is him who has filled. Ligne by line, he asked the worker explain what was arrived.

[96]        Once the written version, he shown the worker, that has signed.

[97]        the worker working on line 14, and his Neighbour which has him request ugly was on line 13. The employer 23 or 24 lines.

[98]        When day 25 October 2013, gentleman L'Écuyer demonstrates that the worker has worked from 6 h 50 to 19 h. The day of the 26 October, the worker left his workplace to 11 h 05.

[99]        Mr. L'Écuyer also says that the 25 October 2013, the worker traveled with the overseer, but not the step advised the incident alleged. he ... not has not done so neither the 26 in the morning, while he voyageait with the same overseer to come at work.

[100]     Mr. L'Écuyer asked the foreman question gentleman Yvon Tousignant, but him-even does not have questioned gentleman Tousignant.

[101]     of his investigation, he has su that there was nothing from defective to equipment, it was a day standard.

[102]     The worker testified that, since his accident, he has not more « value added in the community », he feels « very minimal » and heals of the chats errants, it's here only thing it may do side home, says-t-it. he says all of that is very difficult, he ... not longer make household, it falls and has scars everywhere, and account on the bank's for food bring him food.

[103]     The worker says also that since accident, The pain did not resorbed, it goes evil in udder. to sleep, he speaks a « calvaire ». He says The pain varies the circumstances or according to distances. too, when he longer things single, without the speaker CLSC, he has more evil.

records 549328-71-1408 and 549763-71-1408

[104]     the 15 October 2013, the worker alleges that handling a piece of plastic, it brûle at its thorax and of his neck with water hot outgoing of the machine.

[105]     the 5 May 2014, he consults a doctor, the Dr. Laurie Musgrave, which complements a medical report on which it registered as the patient tells have burned with water hot to work October 2013. The doctor says too « no pain, not d'empêchement to work » and adds that the patient wishes see a surgeon plastic. it directs the worker to a plastic surgeon.

[106]     There is nothing else at for medical this event file.

[107]     the 16 May 2014, the worker submits a claim to the CSST an event on 15 October 2013.

[108]     The progress notes of the 21 May 2014 report the content a telephone conversation with the worker during wherein that-this indicates it does not remember the date to exact this event, but says this is before his accident work for back. it also said have videotaped his injury on his phone an intelligent and does could not tolerate his T-shirt on him for some time.

[109]     The employer, according to the notes scalable from 26 May 2014, says no never have been made aware event except May 2014.

record 558137-71-1411

[110]     the 1st May 2014, the worker filed a claim on CSST shows that as of the 20 September 2013, a colleague has accused of have driven and insulted whereas it was false. on the document « Worker's Claim », this last shows :

in month seven 2013 and following a désacord with a colleague who told that I have pushing and insult I received a shock that me so much disturb and following which I have duty consulted a psychologist that me prescribed medicament and me placed line waiting to see a psychologist. [sic]

 

 

[111]     the 18 July 2014, when the CSST contacts employer, this last reports to have no information concerning this event 20 September 2013.

[112]     there is no medical report on the record retains diagnostic for which the worker received care or treatments.

[113]     the worker Product her claim the 1st May 2014, to an incident the 20 September 2013.

NOTICE OF MEMBERS

record 535855-71-1403

[114]     Members from associations union is believes that should uphold the decision of the CSST made following a the administrative review 4 February 2014, because the evidence preponderant militates in this sense.

[115]     Members from associations employers is view contrary; it should reverse the decision of the CSST made after an administrative review the 4 February 2014, because the mechanism production sprain is not present in this folder. The employer, according to him, successfully rebut the presumption.

record 552762-71-1409

[116]     Members from associations union is believes that should change the decision CSST dated 9 September 2014 after a revision administrative and declare that date of consolidation the 27 March 2014 and that there is no permanent impairment or functional limitations.

[117]     Members from associations employers is believes that the contestation of worker is without and object the decision without effect since there would not be recognized an occupational injury the worker in This folder. 

records 549328-71-1408 and 549763-71-1408

[118]     Members from associations union and Members from employers' associations are both believes that the decision dated 7 August 2014 CSST to Following an administrative review should be upheld, the preponderance of evidence activist in this sense.

record 558137-71-1411

[119]     Members from associations union from Just as the member from employer associations are both believes that the decision of the CSST following an administrative review the 20 November 2014 should be upheld, the preponderance of evidence activist in this meaning.

THE REASONS FOR DECISION

record 535855-71-1403 and 552762-71-1409

[120]     The court must first of all whether a employment injury occurred on 25 October 2013.

[121]     a « occupational injury » is thus defined in law :

2. in the this Act, unless the context indicates a different meaning, we hear by :

 

« occupational injury » : injury or illness which arises out of or During a work accident, or occupational disease, including recidivism, relapse or aggravation;

__________

1985, c. 6, to. 2; 1997, c. 27, to. 1; 1999, c. 14, to. 2; 1999, c. 40, to. 4; 1999, c. 89, to. 53; 2002, c. 6, to. 76; 2002, c. 76, to. 27; 2006, c. 53, to. 1; 2009, c. 24, to. 72.

 

 

[122]     a presumption of occupational injury was provided for in Article 28 of law :

28.  An injury that reaches then the workplace the worker is at work is alleged an employment injury.

__________

1985, c. 6, to. 28.

 

 

 

 

 

[123]     as to the industrial accident, his definition himself found in Article 2 of law :

2. in the this Act, unless the context indicates a different meaning, we hear by :

 

« work accident » : an unexpected and sudden event attributable to any cause, happens to a person by the fact or during of his work and resulting in an injury professional;

__________

1985, c. 6, to. 2; 1997, c. 27, to. 1; 1999, c. 14, to. 2; 1999, c. 40, to. 4; 1999, c. 89, to. 53; 2002, c. 6, to. 76; 2002, c. 76, to. 27; 2006, c. 53, to. 1; 2009, c. 24, to. 72.

 

 

[124]     The disease professional and recidivism, relapse or aggravation was not addressed in this matter and facts not it lending not, it does will not mentioned in this Decision.

[125]     The court is believes that it's the diagnosis lumbar sprain which should be retained in this folder. This was because several doctors hold this diagnose, namely doctors Garber, Boivin, Demers and Duhaime. The preponderance of evidence militates this sense.

[126]     this diagnosis is an injury, occurred on the workplace while the worker was to work. the worker reported event alleged the next day on the record, the very same day according to his testimony. He took medication antidouleurs the evening Event. he is gone see a doctor the 29 October. these time are not important and can not come defeat the application of the presumption in Article 28 of law.

[127]     the presumption lying application, did she was reversed Employer? The court not believed. The Employer submits that there is no causal link between the diagnosis and movements performed. gold, the worker us talk about twisting and rotation, this qu'écrit also doctor Duhaime in expertise. a video was us shown, where workers were conducting the launched boxes like that « should be done ». it's here theory, but who told the worker that has actually well acted as shows the the video?

[128]     too, the court holds that a review préemploi has been done (15 August 2013) and the doctor Giroux said the worker was ready to do employment, without limitation (dated 27 August 2013). He also physical examination demonstrating amplitude normal, signs of Lasègue and of tripod negative. it is therefore say at this time, the worker could do its employment and was limited no way, according to Dr. Giroux, though problems in back were it known, problems were the reason even the review of Dr. Giroux and his application for a review d'imagerie medical. gold, review takes place at sentence two months before the accident. 

[129]     moreover, the doctor Koniouchine states that n / A « no certainty » as to how which the worker survey and filed the box, adding « I n'étais not here ». As for Mr. L'Écuyer, he ... not « could not say » how the worker to launched the box in the « rack ». it, obviously, is not enough to rebut the presumption.

[130]     this being, what is the consolidation date which should be restraint? The court is believes that this should be that of doctor Boivin, namely 27 March 2014, date with which the doctor Jarzem was Okay.

[131]     moreover, dated 25 March 2014, is in the month that expertise doctor Boivin, the doctor Jarzem believes that the pain the worker this moment are due his herniated disc and not not sprain lumbar. it is therefore say that March 2014, which had relates to sprain lumbar was finished. As for Dr. Demers from the office Medical Evaluation, He recommends consolidation date on the date of its review (26 June 2014), but it seems to be the only motivation, because he written although doctors Jarzem and Boivin are the same notice as to the date of consolidation and treatments which are finished. the doctor Demers shows also that treatments finished. As for Dr. Duhaime, it base mostly on subjective complaints the worker establish a date of consolidation. As for the date set by Dr. Koniochine (9 January 2014), the court 's view the worker followed still treatments Physiotherapy to that time and that his injury was not consolidated, the preponderant evidence activist not in favor of this date.

[132]     With respect deficit anatomical-physiological and functional limitations, there that the doctor Duhaime in which grants. moreover, there are many tests goals that can not achieve. In such a context, it is difficult to withhold achievement permanent and functional limitations, because the doctor Duhaime is based mostly on the alleged pain the worker in emit. the proof casting only not favor of this.

[133]     The court therefore concludes that the worker suffered an employment injury 25 October 2013, The diagnosis is lumbar sprain, lesion consolidated the 27 March 2014 without attack permanent and without disabilities.

 

 

record 549328-71-1408 and 549763-71-1408

[134]     The court must decide whether the worker suffered an employment injury 15 October 2013.

[135]     no evidence having been provided on this burn alleged, the court based on elements in the record. gold, it notes that there is an absence of diagnosis by a doctor, which is essential to eligibility a claim. moreover, such as writing CSST in its decision, the worker taken 211 days before consult a doctor.

[136]     The worker does not have injured the professional 15 October 2013.

record 558137-71-1411

[137]     The court must decide whether the claim of worker is admissible.

[138]     no pattern we did been submitted by the worker explaining the notice he took to challenge the CSST decision; the latter was therefore justified declare worker's claim inadmissible, the latter having filed more than six months after the incident alleged, unlike Article 270 of the law shows :

270.  The worker, because of an occupational injury, is unable to hold his employment for more than 14 full days or suffered injury permanent physical integrity or psychological or, if dies this lesion, the recipient, produces its claim to commission, on the form prescribed, within six months of the lesion or death, according to where.

 

The employer assists the worker or, if appropriate, the recipient, in writing and his claim him provides information required for this purpose.

 

the worker or, if appropriate, the recipient, starts to employer copy of this form completed and signed.

__________

1985, c. 6, to. 270.

 

 

[139]     The request of the worker must be rejected and his claim declared inadmissible.

 

 

 

FOR THESE REASONS, THE COMMISSION OCCUPATIONAL INJURIES :

record 535855-71-1403

DISMISSES the query Profilés from doors and windows royal #9, employer;

CONFIRMED the Commission decision of Health and work safety made to the Following an administrative review the 4 February 2014;

DECLARES that gentleman Said Ben Abbou, the worker, suffered an employment injury the 25 October 2013 and has right to benefits under the The Act accidents and occupational diseases.

record 552762-71-1409

DISMISSES the Mr. query Said Ben Abbou, the worker;

MODIFIED the Commission decision of Health and work safety made to the Following an administrative review the 9 September 2014;

DECLARES that the worker's injury has been consolidated since 27 March 2014, without attack or permanent disability;

DECLARES that the worker is able to hold his employment from 27 March 2014.

records 549328-71-1408 and 549763-71-1408

DISMISSES the Mr. query Said Ben Abbou, the worker;

CONFIRMED the Commission decision of Health and occupational safety dated 7 August 2014 after a revision administrative;

DECLARES that the worker did not sustain the employment injury 15 October 2013 and he did not right to benefits under the Compensation Act of and occupational diseases opposite this lesion.

record 558137-71-1411

DISMISSES the Mr. query Said Ben Abbou, the worker;

CONFIRMED the Commission decision of Health and occupational safety dated 20 November 2014 after a revision administrative;

DECLARES inadmissible the claim of the worker.

 

 

__________________________________

 

Sylvie Lévesque

Me John-François Martin

DUFRESNE HÉBERT COMEAU

representative employer

 

 

Me Daniel Longpré

F.TO.T.TO.

Representative of worker

 



[1]          RLRQ, c. TO-3.001.

Department Civil
Instance First
Country Canada
Region Quebec
Court Commission of occupational injuries quebec
Date 29.6.2015


This is an automatic translation of the document.
Original: France