WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100119
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: Worker, Employer
ISSUE
The employer’s representative defined the issue as an objection to the granting of initial entitlement.
HOW THE ISSUE ARISES
The claim was established for this then 40 year old nutritional aide in a nursing home who on February 2, 2009 developed an onset of gradual left shoulder and neck discomfort related to the nature of her work activities, specifically having to load and unload the dishwasher. It was estimated that during any one shift there would be approximately 32 racks of dishes, with each rack having to be moved twice. Rinsing and scrubbing of the dishes would also be required at times (depending on the meal served). The worker was also responsible for other duties such as cleaning, preparing, pushing and pulling carts, cleaning and mopping. Medically a diagnosis of neck and left trapezius strain was advanced. Entitlement was accepted for health care benefits as no lost time was incurred as the worker was accommodated.
In March 2009 the employer expressed their concern with the granting of entitlement. The Eligibility Adjudicator, as delineated in the correspondence dated April 17, 2009 concluded the claimed condition was as a result of the work activities. The employer is not in agreement and this is the issue for determination.
AUTHORITY
- Workplace Safety and Insurance Act, Section 2(1)
- 15-02-01 Definition of an Accident
- 15-02-02 Accident in the Course of Employment
RESOLUTION METHOD & PROCESS
The employer’s representative submitted a 60 Day Decision Option Form dated July 16, 2010.
ASSESSMENT OF EVIDENCE
The Appeals Resolution Officer has considered the information on record.
On review of the evidence, this is a situation of determining entitlement under the disablement provision of the Workplace Safety and Insurance Act, Section 2(1). Entitlement may be considered for disablement given that there is a causal relationship established between the impairment and nature of the work performed. The onset of the impairment need not be immediate but there must be more than a passing connection between work and injury. Normally one looks to questions of reporting to company officials and seeking medical attention reasonably soon after the onset of the impairment.
Operational Policy Document 15-02-01 speaks to "Definition of an Accident."
Accident includes:
- a wilful and intentional act, but not an act of the worker
- a chance event resulting from a physical or natural cause
- a disablement arising out of and in the course of employment.
A chance event is defined as an identifiable unintended event, which causes an injury. An injury itself is not a chance event.
Operational Policy Document 15-02-02 "Accident in the Course of Employment" states:
"A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related."
If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.
Considering the nature of the work activities and in the absence of no history of a prior similar condition or other known cause, it is more probable than not, the condition (neck and left shoulder strain) for which the worker was treated is seen to be a reasonable sequela of the nature of the work performed.
It is also noted, the worker although employed by the employer dating to 2000, she commenced in the department in February 2008 and as of October 2008 she started on the day shift.
Though there was a disagreement between the worker and employer as to the number of racks the worker was required to handle, a more realistic number would be between 60 and 70 based on the information contained in memorandum 25. The employer’s representative in the correspondence dated August 31, 2009 though confirming the number of racks loaded after breakfast and lunch, those same racks would have to be handled after the wash cycle was completed. Also there was no mention of the dishes utilized for the morning snack which also had to be loaded and unloaded.
Furthermore, there is no evidence to dispute the account and development of the claimed condition or that the onset did not manifest when it did.
In disablement cases the onus is on the worker to show a causal relationship between impairment and work performed. It has been confirmed by medical evidence that there was no prior similar condition, with the work activities viewed as a significant contributing factor in the development of the neck and left shoulder condition.
The documentary evidence supports the worker's position of a causal relationship between impairment and work. The appeals resolution officer concludes the worker did suffer disablement arising out of and in the course of employment by virtue of the nature of the work performed.
CONCLUSION
In the judgement of the Appeals Resolution Officer, entitlement was correctly extended for the neck and left shoulder as proof of a work injury (disablement) arising out of and in the course of employment has not been established.
The employer’s objection is therefore denied.
DATED: August 20, 2010
M. De Marco
Appeals Resolution Officer
Appeals Branch