WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100148
OBJECTION BY: The Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: October 7, 2010
PARTICIPANTS: Worker, Worker Representative, Employer
ISSUE
The worker objects to the decision made that he did not meet the time limits to claim.
HOW THE ISSUE ARISES
On April 22, 2007, while in pursuit of a suspect, the worker attempted to jump over a fence but miscalculated the jump and hit the fence falling backwards, injuring his hips and leg. A claim was not submitted until June 17, 2008 as the worker felt the pain would subside. Given the delay in submitting the claim, it was concluded in a letter of July 9, 2008 that the worker did not meet the time limits to claim the accident. He objected to the adverse decision made and his file was referred to the Appeals Branch for consideration.
AUTHORITY
15-01-03 – Worker’s Requirement to Claim and Consent
ASSESSMENT OF THE EVIDENCE
Worker Testimony:
He is a Constable with the employer and has been with the employer just over 20 years. He works in 41 Division in Uniform Services on the road. He has been on the road for quite a few of the 20 years. He listed the other jobs he has performed with the employer. He was under the understanding that if there had been serious damage or injury, a claim would be reported. He did submit a shoulder claim in the past. He injured it as a result of wear and tear attributed to taking the saddle off the horses. He also injured his knee chasing a suspect down the road. He had a car accident wherein he injured his back and neck. He indicated there may be others, but he does not recall them. He does not recall any delays in reporting these other incidents and recalls reporting them to his supervisor. The supervisor completed an IOD report for these incidents and he recalls seeking medical attention for these other injuries. He does understand there is a need to submit a report for an injury at work but thought it was up to the worker to decide with respect to the nature of the injury. He is not aware of all the policy with respect to submitting paperwork. He was aware of the need for his doctors to submit reports in relation to his prior claims.
On April 22, 2007, he received a radio call for a robbery that was taking place. He was on day shift. He and his partner responded to the call. They were in pursuit of a robbery suspect who was running through the backyards in a residential area. They drove down to a residential street where they thought the suspect might be. He came running out. They got out of the vehicle and began pursuit. He ran back over a fence and he was in pursuit. He went to hop the fence and his foot hit the top and he fell on his left hip. The fence was approximately four feet high. He was stunned and had pain in the area. He thought it was a bruise or a muscle but he was more concerned about his partner who was still in pursuit of the suspect so he got up and continued to pursue. He mentioned the fall to Sargeant Morin who was his immediate supervisor at the time. He was embarrassed that it had happened and some of the officers present were laughing. He advised him to see how it went to determine whether or not to put in an IOD claim (Injured on Duty). This was reported the same day on the scene late morning. They arrested the suspect and went back to the station. He completed his shift. He felt embarrassed as he was a senior officer with experience. He should have been setting an example for the younger officers and he feels he didn’t so the others began laughing at him. He was 43 years old at the time of accident and the other officers would have been in their early 20’s. This was part of the reason he did not submit a claim.
At the time of the incident, he felt he had just pulled a muscle and bruised it. He did not consider this worthy of submitting a claim because he felt it was just a bruised hip and the pain would go away with time. He did not feel it was worthwhile to submit a claim for a bruise. If they are to put in a claim for every incident at work, a claim can be submitted every night. He did not believe the incident was so serious that it would warrant a claim. He felt he could take some Tylenol and it would heal itself. He did not seek medical attention at that time. He denies any prior hip problems. Gradually over time, the condition progressively worsened and he started physiotherapy in June, 2007. The hip started to bother him when he was walking. He told his doctor about the incident and that he had fallen on his left side. The doctor felt that he was bruised and pulled a muscle. The doctor prescribed Mobicox and he was advised to continue with physiotherapy. The doctor did not discuss submitting a claim and he did not ask the doctor to do so either.
At the time of the accident, he was involved in playing the odd game of golf probably two or three times through the summer. He does not recall the physiotherapist advising him at that time (June, 2007) that a tear was suspected. Treatment did not resolve the problem. A few months later, the physiotherapist indicated that he might have a tear as he was not responding to treatment. He therefore went back to see his doctor. He explained to him what the physiotherapist believed but the doctor did not believe this was the issue at all and that it was probably bursitis (an inflammation of the bursa). He did not provide an opinion on whether or not the condition was related to his fall. He does not think the doctor believed it was related to the fall.
He continued with physiotherapy and he was referred to a rheumatologist for bursitis. Dr. Ali gave him a cortisone injection the first time he saw him and he believed there was an inflammation of the bursa sack and a tightness of the IT band that was causing the problem. The physiotherapist was trying to deal with the tightness and stiffness within the joint. He agreed his IT band was tight. He was also treating him for the pain in the joint as it was progressively getting worse and was bothering him while he was walking. The physiotherapy treatment was not working. They were convinced there was a labral tear and they felt an MRI should be done. The worker therefore returned to see his family doctor but he did not believe that he had a tear. He asked if an MRI could be done but he said he did not believe an MRI could be done on the hip and even if it could, he did not feel the MRI would show a tear. He referred him back to the rheumatologist. This took a few months and he did not see the orthopaedic surgeon until the winter of the following year. The doctor then referred him for an MRI. When the results came in, he met with him again and he advised him that there was a tear in the hip but he wanted him to see Dr. Whelan at St. Michael’s as this was his area of expertise. He was referred for another MRI and a CT scan. He then met with him again to discuss the results. It was explained that he had a labral tear and he had some arthritic problems in the hip as well. Surgery was recommended. A full hip replacement was discussed but because of his age, it was decided to hold off on dealing with the arthritic problem and just fix the damage caused by the tear. The doctor advised him he believed trauma led to the tear.
Dr. Goodhew had been his family doctor for approximately 15 years. He had not seen him for the back and neck injuries, but had for the other two injuries. He had confidence in him and had no reason to doubt him. He was angry that it took so long for the condition to be properly diagnosed and that he had to argue with him to get an MRI done. He believed there was a misdiagnosis of what actually happened. He went to the health practitioners and saw specialists whom he believed would find the problem but they did not. It took so long to get certain testing done and had he known the extent of the injury, he would have put in the IOD when it occurred.
He is not familiar with the injury reporting policy provided by the employer and he denies having read it throughout his career.
He does not know exactly how many claims he has submitted throughout the course of his career. He recalls submitting a claim for irritable bowel syndrome and one for a groin injury and he was not embarrassed to submit these claims. He indicated it was different as people did not witness him falling. There were about ten officers in pursuit of the suspect at the time. He submitted a claim for someone spitting in his face. He was not embarrassed by this as it was a totally different incident as the suspect had hepatitis. Other than his partner, nobody else saw him trip over the fence. His partner told the platoon about the incident as he thought it was funny. He himself has heard of incidents involving other officers that he felt were humourous. It is also reasonable to assume younger officers would make mistakes but they look to the senior officers to set an example.
He is aware of certain procedures and rules within the Service but he is not aware of any police officer who is aware of every procedure and rule. He did not comply with submitting an IOD report at the time but he did speak with his supervisor. He also did not seek immediate medical attention as he thought the incident was minor. He also did not submit a TPS 765 form providing a diagnosis at the time and did not follow the procedures outlined in the injury reporting procedures submitted by the employer.
He has taken a number of courses throughout his career and he was asked why he would not submit a claim prior than when he did even just as a First Aid incident and he indicated that he believed he should put in an IOD only if he had seriously injured himself. You would tie up the system if you put in an IOD for every bruise or cut. He sought physiotherapy treatment in
June, 2007 but he still did not complete an injury on duty report as he was told it was bursitis or a tightness in the hip and it was minor in nature. He thought with physiotherapy, the condition would resolve and there was no need to put in an IOD report. Physiotherapy was covered through ManuLife. He explained to the physiotherapist what had happened but they did not suggest he contact the WSIB.
The IOD report was not completed until June 17, 2008. It was completed on this date as this is when the orthopaedic surgeon confirmed a tear. He explained to the doctor what had happened and the doctor then advised he believed the problem was related to the trauma from the fall. He was asked about the form 8 that appears to list the date of accident as February 14, 2007; however, he denies having seen the doctor before April, 2007 for a hip injury. When he advised Sgt. Morin of the fall, the sergeant just told him to see how it went. He did not advise him to see the doctor. You see so much and you get minor bruises and you don’t think anything of it. When he fell, there was no concern over his safety as the suspect was ahead of him. His only concern was to get up and help his partner and his adrenaline was running at that point. The suspect was not compliant when the arrest was made, but it was his partner, not he who made the arrest.
He was not present when his partner advised others of his fall. There may have been joking back at the station. He thought as well that while it was embarrassing, it was funny. When he submitted his prior claims, usually the supervisor submitted the forms. He is not aware the Police Service does not have a right to submit a form without medical treatment.
Closing Statements:
The worker’s representative argued that it is clear the worker did not report in normal timelines but he provided a straightforward explanation of why this was not done in terms of his testimony. He did not believe there was anything significant and did not seek health care because of that reason. It was only when things got a little worse that he saw his doctor who advised him he had some tightness and bursitis and prescribed conservative treatment. He noted there was opportunity for both the physiotherapist and doctor to advise the worker to submit a claim or submit a form themselves but they did not do this. The worker clearly had experience with the compensation system so he understood that there was a requirement to report an injury to your supervisor and ask them to do something about it administratively. The fact that he did not do it on this occasion underscores how minimal he believed the initial fall to be. This explains why there was no initial reporting. If we combine this with what the doctor told us about his relationship with his doctor, whom he had confidence in and had seen over a number of years, and did not make any connection to a work-related incident, this further explains the delay in the reporting process. If we then add to that the number of months it would take to get a specialist referral to obtain a clear diagnosis, this explains the delay in submitting the claim.
The policy requires a worker to submit a claim within six months. The worker did not have any concrete reason to connect his ongoing problems to the fall until he got the diagnosis, particularly since his family doctor did not believe this to be the case and dismissed the opinions of the physiotherapist. The policy does recognize that there are some circumstances that would allow a decision maker to extend the six month deadline. Policy 15-01-03 recognizes that in some cases some employers are disinclined to report claims. He is not suggesting this is the case with this employer as they are very good at fulfilling their obligations. However this does not translate down to the front lines of supervision at times and the worker testified to the fact that he did not get the correct response from his supervisor. In fact, it was a situation where they were laughing about the incident. In this context, the hesitancy to jump into the claims process is reinforced. He suggested there are a number of explanations that justify treating this as an exceptional circumstance.
He referenced the policy and noted that the examples listed under exceptional circumstance are not exhaustive but there is one that is quite clear; specifically ‘whether the worker reported the accident to the employer, health care professionals or co-workers’. In this case, the worker reported to all of these. He noted the worker reported to the employer virtually immediately, to at least two health care professionals within about five weeks and certainly co-workers were aware of it. He suggests all these things were done within a six month period and in terms of whether this is sufficient for me to recognize an exceptional circumstance, he referenced WSIAT decision 1291/07, specifically paragraph 16 to support his argument that the worker reported the incident to a health care professional within the six month period. The key issue is whether the worker reported the onset and work-relatedness to a treating health care specialist within the six month period and not simply filled in the paperwork. He noted that paragraph 21 of the decision in that instance noted that there were exceptional circumstances. In this case, the worker testified to the fact that the fall was reported and he advised the physiotherapist that he felt the problems may be related to a fall at work. He discussed this with the doctor who did not believe the problems were related to the fall until he was proven wrong by the MRI at which time the formal reporting took place. He therefore requested that the worker be provided consideration for exceptional circumstances and requested that the claim be allowed to proceed.
The employer on the other hand argued that the situation was not reported in a timely fashion. First with respect to policy 15-01-03, a worker is required to file a claim for benefits as soon as possible after an accident. There is no comment made with respect to the severity of the accident. This worker had prior knowledge of how to submit for an accident. There are numerous accident submissions on the database running the gamut from soft tissue injuries to other allegations and he also suggests that as a police professional, that he would be able to comprehend a statute or WSIB operational policy because this is part of his job in that he is familiar with federal and provincial statues and municipal by-laws. He should therefore be able to read and interpret applicable legislation and policy. In this case, a report was not submitted in a timely manner. The employer has a longstanding procedure that when there is a workplace injury, the worker is required to report it, ensuring forms are completed and ensuring the process is completed. The worker did this in other situations but not in this one.
He argued that the employer does not have to report but this decision is made when certain information is before them. If the employer is not aware of anything like an official report in this workplace then of course nothing would be submitted. They cannot report on the presumption that an accident happened. A claim has to be reported through the internal procedure. The employer reviews the report and if it meets reporting protocols then of course a claim is submitted. Thousands of claims are submitted on a yearly basis and thousands of first aid incidents are stored in the database in case it is not reported. This is so that the claim is there if in the future a worker requires medical treatment. This is what should have transpired in this situation.
With respect to the exceptional circumstance, he noted the worker has more knowledge of legal requirements than other workers and he had the ability to understand the time limit and consequences of not reporting the situation. With respect to the form 8, the dates on the first page are unclear but it appears first medical treatment was in December and the accident was in April and this would exceed the six month timeframe as well. With respect to the argument that the worker was embarrassed, the policy does not speak to this and this does not prove to be an exception. There is an official procedure on how to submit claims. This procedure was not followed and the worker did not meet the statutory guidelines with submitting the claim within the six month time period.
In response, the worker’s representative noted that further, there was no lost time in the claim until the surgery, nor was there a request or need for modified duties. There was reporting to the health care practitioners and the question needs to be raised regarding their obligations to report. There is no evidence the worker was aware of claim filing deadlines and finally, with respect to the information provided on the form 8 dated July 10, 2008, there appears to have been a correction indicating the worker’s first treatment was in June, 2007. This corresponds with the worker’s testimony and the commencement of his physiotherapy.
Decision:
Policy 15-01-03 and Section 22 of the Act stipulate that a claim must be filed within six months of an accident, or in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six month deadline, or waive the dual requirements altogether if in the WSIB’s opinion it is just to do so. The policy does go on to indicate that there are exceptional circumstances where the six month time limit can be waived. These include:
- Compelling personal reasons, such as serious health problems or accident (experienced by the party or the party’s immediate family), or the party leaving the province/country due to the ill health or death of a family member
- The worker’s ability to understand the time limit requirements and consequences of not meeting them (e.g. was the worker made aware at the workplace of the requirement to claim and consent; were language difficulties a factor?), and
- Whether the worker reported the accident to the employer, health care professional, or co-workers.
In this case, there were no compelling personal reasons, such as serious health problems or accident experienced by either the worker or his family that would warrant consideration as an exceptional circumstance. The worker cited embarrassment as a personal reason for not filing the claim. However, this reason does not qualify as an exceptional circumstance as is intended by legislation and policy. The worker indicated that co-workers were already aware of the fall and filing a claim would not have added to the embarrassment he had already been exposed to.
With respect to the worker’s ability to understand the time limit requirements and consequences of not meeting them, it is noted the worker had several other incidents and he was aware of his obligation to report an incident. He is a police officer and does have the ability to understand legislation and policy and there are no language barriers that would have impeded on his ability to understand these requirements.
In considering the third point however, I find that the worker does meet the criteria necessary to extend his time limit to claim as an exceptional circumstance. The worker did report the accident to his immediate supervisor, Sargeant Morin at the time that it happened. Co-workers were aware of the fall as well at the time of the incident. The doctor also confirms that when he first saw the worker on June 9, 2007, he reported the accident to him and this was within two months of the date of accident. The worker did not submit a claim as the doctor did not seem convinced that the worker had a tear and did not make a connection to this incident. This appears to have greatly impacted on the worker’s decision not to file a claim sooner. However, since the employer, health care professional and co-workers were aware of the incident, I am satisfied that there is an exceptional circumstance in this case and as a result, I find that the time for filing a claim should be extended to allow the worker to file a claim with the WSIB.
CONCLUSION
Based on the evidence outlined in this decision, I am extending the worker’s time limit to file a claim with the WSIB. As a result, the operating area is free to make the necessary enquiries to make a determination on initial entitlement in this case.
The worker’s objection is granted.
DATED October 19, 2010
S. Marangoni
Appeals Resolution Officer
Appeals Branch