Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100043
Objection By: Worker
Worker: Participating
Employer: Not Participating
Representative: Worker
Resolution Method & Process
The worker’s representative elected to receive a decision based on written submissions instead of convening an oral hearing.
Issue
The worker is objecting to the claims adjudicator’s decision dated June 10, 2009 which denied initial entitlement for a left knee injury.
How the Issue Arose
The worker is a 49-year old food service worker in a Swiss Chalet restaurant. On March 4, 2009 she filed a Form 6 claiming a left knee injury on December 23, 2008. The claim was denied because there was no proof of accident.
Authority
11-01-02 Decision Making
11-01-01 Adjudicative Process
11-01-04 Determining the Date of Injury
Submissions
Submissions from the worker’s representative are set out in a facsimile transmission dated April 20, 2010.
Assessment of the Evidence
The worker claims that on December 23, 2008 she struck her left knee on a chicken drawer that was left open. The rationale for denying her claim is set out in the decision letter dated June 10, 2009.
In coming to his decision, the claims adjudicator pointed out there were no witnesses to the event; there was no lost time from work; no modified duties were required; there was delay in seeking medical attention and delay in reporting the matter to the employer.
I note, however, that on July 16, 2009 the worker called the claims adjudicator and left a message advising there was a witness to the accident named “xxxxxx” (see memo 4).
On July 29, 2009 the worker sent a letter to the claims adjudicator again advising that “xxxxxx” was a witness to the event. The worker also provided a telephone number where “xxxxxx” could be reached. On August 23, 2009 the worker wrote a second letter to the claims adjudicator reporting the witness “xxxxxx” and providing a telephone number where “xxxxxx” could be reached. The claims adjudicator attempted to contact the witness on a “couple of occasions” but was not successful (see memo 5).
The submissions from the worker’s representative include a sworn affidavit from yyyyy yyyyy. Ms.yyyyy is a manager at the Swiss Chalet restaurant where the worker was employed. Ms. yyyyy swears that:
I am employed as a manager at the Swiss Chalet restaurant located at _______, London, Ontario.
On or about December 23, 2008. I was present when (worker), also an employee of Swiss Chalet, injured her left knee.
I can confirm that the said injury continued to affect (worker) thereafter because she continued to complain of pain in her left knee.
Given Ms. yyyyy’s affidavit, I find there is sufficient proof the worker injured her left knee at work on December 23, 2008 as claimed. Because the manager of the restaurant actually witnessed the event, that constitutes immediate, de facto reporting to the employer. I note also the diagnosis; “patello-femoral pain secondary to acute traumatic injury/contusion” is compatible with the accident history provided.
Conclusion
The worker’s objection is, therefore, allowed.
Entitlement is accepted for a left knee injury, the date of accident being December 23, 2008.
There are no submissions regarding any benefits the worker is claiming so that matter will be for the case manager to decide.
Dated: April 30, 2010
F. J. Mackin Appeals Resolution officer Appeals Branch