WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20172031
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer
REPRESENTED by: Legal Services
HEARING: August 11, 2017 Toronto, Ontario
HEARD by: M. Kimevski, Appeals Resolution Officer
ADDITIONAL ATTENDEES:
Observer: (worker’s son)
ISSUE
The worker objects to the denial of initial entitlement to the left elbow and shoulder.
BACKGROUND
The claim was established with a date of accident of September 7, 2015 for this then 50 year old house keeping worker for a claimed left elbow injury as a result of striking her elbow on the lock of a door.
A decision letter of November 23, 2015 communicated that the Eligibility Adjudicator was able to establish that on September 7, 2015 the worker struck her left elbow on the lock of a bathroom door; however, clear information could not be obtained from the worker on when medical attention was first sought. Entitlement was denied as proof of accident could not be established.
The case was referred to the Appeals Services Division for consideration. The worker’s representative requested an oral hearing to resolve the appeal and it was determined an oral hearing was warranted.
AUTHORITY
Operational Policies
11-01-01 Adjudicative Process
11-01-02 Decision Making
ANALYSIS
In reaching my conclusion I considered all of the available information in the file, the relevant testimony provided and the arguments of the representatives in the context of the relevant operational policy and legislation. For reasons that will follow, I find in favour of the worker.
Exhibits
The worker’s representative provided a package of medical information, including clinical notes from Dr Jacob. The package was accepted and labelled as Exhibit #1.
Arguments
It was the position of both parties that the worker should be granted initial entitlement for the left elbow and left shoulder as proof of accident was evident. The worker was provided with first aid on the date of accident and the fact that the worker did not see her doctor for eight days should not be a barrier to entitlement.
Analysis
In determining initial entitlement, it is necessary to establish five points: an employer; a worker; a personal work-related injury; proof of accident; and compatibility of diagnosis to the accident or disablement history.
Consideration of proof of accident may include examining whether an accident or disablement situation exists; whether there were witnesses; whether there were discrepancies in the date of accident and the date of layoff; whether there was delay in the onset of symptoms; and whether there was a delay in seeking medical attention.
The definition of accident, according to operational policy, includes a wilful and intentional act, but not an act of the worker; a chance event resulting from a physical or natural cause; and disablement arising out of and in the course of employment. Disablement includes a condition that emerges over time, or an unexpected result of working duties.
In this case, taking into account the evidence on file in conjunction with the testimony provided, I find the facts support that there is proof of a chance event type accident having occurred on September 7, 2015 in which the worker injured her left elbow and left shoulder.
The worker’s testimony provided further detail and clarification of the mechanics of the accident. She indicated that the room door behind her pushed the washroom door which in turn pushed her inside. When the door hit her shoulder and pushed her she had things in her left arm; her left arm was bent to hold the items and her left elbow went downward into the door knob/lock. The worker indicated she had pain in the shoulder, but the elbow was swelling and was the primary concern. Her supervisor applied ice to her elbow. She indicated she kept working, she returned to work the next day and took Tylenol; she is a single mother so needed to work. Between September 8, 2015 and September 15, 2015 she continued working with the help of a co-worker and she would have had two scheduled days off during that time period.
The worker confirmed that Dr. Jacob is her family doctor. In accordance with the submitted clinical notes per Exhibit#1, the worker confirmed that the first day she saw her doctor was September 15, 2015.
The Employer’s Report of Injury/Disease (Form 7) confirms that the date of accident was September 7, 2015 and reporting was the same day. The worker reported that she struck her elbow on the lock of the door, and there was an additional comment indicating the worker’s shoulder was swollen.
The Worker’s Report of Injury/Disease (Form 6) was reviewed at the hearing as it did not mention the left shoulder and cited October 14, 2015 as the date of medical attention. The worker clarified that while she signed the report, she did not complete it. It was completed by either her roommate or someone from work. This accounts for the discrepancies and I found it was evident at the hearing that there is a language barrier.
I acknowledge that in the statement obtained from the worker on November 23, 2015 there was mention of an incident at home. The worker was questioned and she testified that there was no other incident and she had no prior problems with either the left elbow or the left shoulder.
Turning to the medical evidence, the earliest report is a Functional Abilities Form (FAF) for an assessment by Dr. Jacob on September 15, 2015. It referenced the left arm and left elbow epicondylitis/tendonitis. It is unfortunate that a Health Professional’s First Report (Form 8) was not completed; however, Exhibit#1 containing the clinical notes confirms the worker was seen on September 15, 2015 in reference to a house keeping injury on the 7th. The entry mentions that the left elbow hit a door knob and ice was applied; and cites painful range of motion of the left arm, requiring x-ray and ultrasound of the elbow and shoulder. The diagnosis was left elbow epicondylitis and shoulder tendonitis.
There is no dispute that an incident occurred on September 7, 2015. Reporting was immediate and first aid was provided. The worker continued to work for a short time by taking over the counter pain medication and by being assisted by a co-worker. Further, the medical information confirms the date of accident and history. Thus, proof of accident is evident. Initial entitlement for the left elbow and left shoulder is in order. The diagnosis of left elbow epicondylitis and left shoulder tendonitis are compatible on a traumatic basis.
CONCLUSION
Initial entitlement for the left elbow and left shoulder is in order. The operating area is to determine any benefits that may flow from this decision.
The worker’s objection is allowed.
DATED August 16, 2017
M. Kimevski
Appeals Resolution Officer
Appeals Services Division