Worker v. Employer, 2015 CanLII 57387

Appeals Resolution Officer Decision

Decision Number: 20150092 Decision Date: August 21, 2015

Objecting Party: Worker Represented by: Worker Representative

Respondent: Employer Represented by: Employer Representative

Hearing: Hearing in Writing Heard by: M. Elliott, Appeals Resolution Officer

Issue

The worker is requesting entitlement for:

Recognition of a workplace accident occurring April 24, 2013. Entitlement to benefits with the WSIB for a workplace accident on that date have been denied as outlined in decisions from an Eligibility Adjudicator dated June 18, 2013, July 17, 2014 and April 9, 2015.

Background

An Employer's Report of Injury dated May 10, 2013 states that the worker claimed she had an onset of pain in her left shoulder while performing her regular employment duties on April 24, 2013. This was not reported to the employer on that date. The worker did not tell her employer until May 6, 2013 after she was assessed by her family physician. The worker's manager was not aware of an injury until a physician's first report (Form 8) was completed and submitted to the employer.

The physician's report of May 6, 2013 does not provide a specific accident history. The date of incident or date when symptoms started is simply listed as April 2013. The worker indicated repetitive use of her left arm caused pain to the left shoulder and arm. A diagnosis of left shoulder strain was provided. Subsequent radiological testing demonstrated degenerative changes in the worker's neck, including disc bulges and moderate-to-severe right C4-5 neural foraminal stenosis.

In assessing the evidence in this case, the Eligibility Adjudicator found insufficient evidence to prove a work-related accident occurred or that the worker suffered a personal injury as a result of her regular employment duties.

Worker's Position

This worker submitted a report indicating that when she came to work for the 11:00 p.m. shift on Tuesday, April 23, 2013, the shift prior to hers was behind. Overall, in the past three shifts before hers, her employer was understaffed with a total of six people calling in sick and no replacements called in. The worker provided other information regarding why they were running behind in their job duties. It is the worker's position that since she was running behind, she was not able to take her regular breaks and she felt stressed out and over-exerted preparing equipment for the following day. The worker considers her duties repetitive in nature and at the end of the shift while putting linen away, she noticed pain in her left arm, wrist, elbow and shoulder. In memorandum #7 dated June 18, 2013 the worker told the Eligibility Adjudicator that she did not seek medical attention immediately as her doctor was on vacation.

Employer's Position

On behalf of the employer, the employer representative provided a submission June 10, 2015. The employer has indicated that no specific work incident has been identified and the worker has simply attributed pain to her regular work duties. Her job title is a (redacted), and her job duties consist mainly of decontaminating, inspecting, assembling, wrapping and distributing instruments.

The employer's submission indicates that there is no proof of accident according to WSIB criteria. In addition to the fact that the worker did not report any specific event within a reasonable timeframe or seek medical attention when there was an onset of pain, there has been nothing documented in the file to prove that an accident or disablement situation existed.

It is the employer's position that sick calls on April 23, 2013 would have no effect on the worker's actual job duties. The employer has also indicated that it is a widely known policy that if there is a high volume of workload in the department, an employee can automatically call in for overtime and the employer noted that there had been no call or request for overtime.

Also, the job duties themselves are not actually considered repetitive or forceful and the job provides the opportunity for the worker to perform different activities. Laundry duty would only consist of small items to be picked up. This would be five pounds at a time. It is the employer's position that workers do whatever they can do on the shift, and if there is an abundance of work, overtime can be requested.

The employer has expressed great concern over the fact that there was a delay of nearly two weeks in time between the worker reporting an accident and seeking medical attention and the worker has not provided a valid reason for this.

Authority

The following WSIB Operational Policies apply:

11-01-01; Adjudicative Process

15-02-01; Definition of an Accident

Analysis

Entitlement to a personal work-related injury as a result of a workplace accident on April 24, 2013.

I find that this case does not meet the WSIB criteria for an allowable claim. WSIB Policy 11-01-01 states that an allowable claim must have the following five points:

an employer;
a worker;
personal work-related injury;
proof of accident;
compatibility of diagnosis to the accident.

Employer/Worker

It has been established that this worker was employed with the employer on April 24, 2013. Therefore, an employer/worker relationship does exist.

A worker experiencing pain while performing work activities does not meet the WSIB criteria for proof of a personal work-related injury. Had this worker had a significant onset of pain related to a particular event, this should have been reported on the day that it occurred and the worker could have sought medical treatment at a walk-in clinic or in a hospital emergency room. As it stands, I see no proof that this worker actually sustained an injury on April 24, 2013.

This worker was performing her regular employment duties. Her position that there was increased work activity has not actually been confirmed by the employer, and I am not satisfied there was anything sufficiently different about the worker's activities on April 24, 2013 that would have resulted in a personal work-related injury on that day.

Proof of Accident

Policy document 15-02-01 indicates that an accident includes:

a willful and intentional act, not being the act of the worker;
a chance even occasioned by a physical or nature cause, and
a disablement arising out of and in the course of employment.

The definition of disablement includes:

a condition that emerges gradually over time;
an unexpected result of working duties.

I do not find there is proof of a work-related accident occurring April 24, 2013. In memorandum #5 dated June 5, 2013 the Eligibility Adjudicator received a phone call from the employer. The employer indicated there had been no request for overtime on that particular day. The worker's supervisor was unaware that the worker endured any discomfort from that shift in particular and there was no evidence of a high workload. Although the worker mentioned that a machine broke down, this is a regular occurrence and processes are in place if this happens. Two people work the midnight shift in the worker's role and there is no mandated production in this role. Everybody performs whatever tasks they are able to do. The only situation that would require a worker to stop and do something immediately or do something on an emergency basis would be if there was a trauma and certain tools were required. If there is ever an abundance of work that has to be done, there is a standing policy that states workers can call and be approved for overtime which was not done on the worker's shift.

The physician's diagnosis from examination May 6, 2013 was that of a left shoulder strain. I am unable to find any basis to relate a strain to the worker's employment duties from April 24, 2013. Further documents demonstrated significant degenerative changes in the worker's neck. These degenerative changes are common in the general public and can cause acute and spontaneous symptoms. They are not, however, related to the worker's performance in her regular employment duties on April 24, 2013.

Compatibility of diagnosis to accident history

In this case, there really has been no accident history confirmed. The worker has only claimed she felt pain on April 24, 2013. I have difficulty substantiating that an injury occurred in the workplace to have caused pain. In addition, the main ongoing diagnosis in this case relates to significant degenerative changes radiating from the neck down the arm. The worker has degenerative disc disease and stenosis which is an underlying degenerative condition having no relationship to a workplace accident described by the worker.

This worker does have bulging discs and these are due to softening of the discs in conjunction with associated degenerative changes in the fibers of the covering annulus of the discs. Unfortunately, the condition can cause acute and spontaneous flare-ups of pain and once the degenerative process begins, the condition can be painfully symptomatic due to the onset of stenosis. This worker is just as likely to have symptoms related to the degenerative changes outside the workplace as in the workplace, and I am not satisfied there has been any diagnosis in this case which I can specifically relate to an accident history occurring in the workplace April 24, 2013.

Conclusion

I conclude the following:

There is insufficient evidence to prove this worker sustained a personal work-related injury as a result of a workplace accident on April 24, 2013.

The worker's objection is, therefore, denied.

DATED: August 21, 2015

M Elliott Appeals Resolution Officer Appeals Services Division