Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Claim: 20180003
Objecting Party: Worker
Represented by: Legal Representative Services
Respondent: Employer
Hearing: January 30, 2018, Toronto, Ontario
Heard by: L. Mansueti, Appeals Resolution Officer
Date: February 16, 2018
Additional Attendees: Worker’s Spouse, Observer Legal Representative Services, Observer
Issue
The worker objects to the decision dated December 7, 2016 denying initial entitlement for a right foot/ankle injury sustained on August 31, 2016.
Background
The worker claimed that on August 31, 2016 he was on top of a trailer chaining down a load when the binder let go which caused him to fall a distance of 5 to 6’ to the ground, fracturing his right foot/ankle. The worker was 42 years of age at the time of injury, working as an AZ Driver. He had worked with the employer for approximately 2 months.
The employer objected to the allowance of this claim citing the worker injured his right ankle when he fell off a ladder in his own backyard. The employer submitted the injury was not reported until November 22, 2016.
The worker was terminated from his employment on November 11, 2016.
The decision letter dated December 7, 2016 communicated there was no entitlement to benefits for a right ankle/foot injury as proof of accident had not been established. The worker objected to the decision dated December 7, 2016, and this is now before the Appeals Services Division.
Authority
Section 2 and 13 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policies:
11-01-01 Adjudicative Process
11-01-02 Decision Making
15-02-01 Definition of an Accident
Analysis
I have reviewed and considered the information contained in the record, as well as the testimony provided by the worker, in accordance with the above noted legislation and operational policies.
Worker Statement
The worker testified that on the evening of August 30, 2016 he received a dispatch call to pick up a trailer on August 31, 2016 in Brampton, Ontario. On August 31, 2016 at approximately 5:00am he arrived at the company’s yard to pick up a truck. He advised he did not see anyone in the company’s yard. He drove the truck to Brampton and picked up an empty flatbed trailer. He testified he was dispatched to go to ABC Steel in Stoney Creek, Ontario, and he left Brampton at approximately 8:00am. He arrived at ABC Steel at approximately 9:30-10:00am. The shippers and receivers proceeded to load the trailer and advised the worker to chain down the load outside. The worker indicated the process of chaining down a load is a physical task which involves climbing on top of the trailer to secure each chain individually with binders. The worker advised he had secured 9 chains, and while he was securing the last chain the binder let go, causing him to fall off the trailer to the ground and injured his right foot. The worker indicated the yard was full of people; however, he did not know if anyone saw him fall because no one came over to him. The worker indicated he limped back into the truck and proceeded to deliver the load to XXX Inc. in Orton, Ontario. He advised the load was secured; he did not have any concerns with the safety of the load. The worker advised the drive from ABC Steel to XXX Inc. would normally take one hour; however, given the injury to his foot, it took him 2 to 3 hours to drive to XXX Inc. The worker indicated the truck is standard, thus he would normally use both feet to drive, but with his right foot injury, he drove with his left foot only. He indicated he arrived at XXX Inc. at approximately 2:00 to 3:00pm. Typically the worker would proceed to offload the shipment; however, he indicated he could not offload because of his right foot injury. The worker asked the shippers and receivers at XXX Inc. to unchain the load, and they obliged. The worker testified these shippers and receivers encouraged the worker not to drive with his injury, but the worker proceeded to drive off. The worker indicated he left XXX Inc. at approximately 3:00pm with intentions of returning to the employer’s yard.
The worker indicated he was unable to continuing driving due to his right foot injury, and he exited at Trafalgar road and called the employer to advise them of what happened. The worker indicated the owner and operations manager met him and the operations manager drove the truck back with the worker in the passenger seat. The owner drove his personal vehicle back to the employer’s site. Once at the employer’s site the owner drove the worker to a medical clinic. The worker testified the owner had advised the worker not to file a WSIB claim. The employer reportedly advised the worker they would pay the worker for lost time from work, put him on the company benefits, and the worker would be covered for anything he needed in terms of treatment. The worker expressed he was concerned about losing his job and agreed to comply with the employer’s request not to file a WSIB claim.
The worker completed a Worker’s Report of Injury/Disease (Form 6) on November 14, 2016, a few days after he was terminated from his employment. The worker indicated he injured his right foot/ankle on August 31, 2016 while he was chaining down a load at a customer’s site and fell from the top of the trailer to the ground, falling a distance of 5 to 6’. The worker indicated he reported the accident to the employer the same day.
The worker indicated he did not submit a WSIB claim for benefits at the time of the injury because he was afraid of losing his job. The worker indicated the employer advised him that if he did not submit a WSIB claim, they would compensate his pay and work with him while he recovered. The worker agreed with this plan, and did not submit a WSIB claim. The worker kept the employer informed of his recovery, and advised them he was medically cleared to return to work on October 31, 2016 to perform light driving duties. The employer reportedly requested the worker to return to work on October 24, 2016. The worker returned to work on October 24, 2016 and worked a 14-hour shift. The worker indicated he experienced a great deal of pain and swelling and he was unable to report to work the following day. The employer advised the worker they were no longer going to compensate the worker for his lost time from work, and he would only be paid the hours he actually works.
On November 23, 2016 the operating area obtained a statement from the worker. The worker indicated he injured his right foot/ankle while at a customer’s site on August 31, 2016 at approximately 1:30-2:00pm. The worker indicated he was chaining down a steel plate on a flatbed tractor trailer. He was standing on top of the steel and he was pushing down the binder forcefully with a metal bar when the metal bar slipped and caused the binder to give way, which caused the worker to fall from the trailer to the ground landing on his right foot. The worker indicated he was working alone and could not confirm if anyone was in the truck behind him that may have witnessed the accident. The worker indicated he experienced immediate pain and limped back to the truck. The worker indicated he completed his run, and delivered the load to XXX Inc. in Orton, Ontario. When he arrived at XXX Inc., he indicated he was in so much pain that the employees at XXX Inc. unchained and unloaded the steel for him. The worker indicated he proceeded to drive back to the employer’s site, but he was in so much pain that he called the owner to advise him he was unable to drive because of his foot/ankle injury. The worker indicated the owner and operations manager went to pick up the worker on August 31, 2016. The employer reportedly advised the worker not to file a WSIB claim. They advised the worker he would be added to their benefits and they would pay his wages if he required time off work.
The worker indicated he was seen by Dr. P. Philbrook, his family doctor, on August 31, 2016. The worker advised Dr. Philbrook he injured his right foot/ankle at work; however, he advised he did not want to file a WSIB claim, instead he would indicate he fell off a ladder in his backyard instead. The worker stated Dr. Philbrook advised him that he should be filing a WSIB claim.
The worker remained off work following the accident, and he received pay from the employer; however, not in full. The worker testified the owner would come to the worker’s house each week to deliver a cheque to him. He indicated he began receiving phone calls from the employer the week of October 10, 2016 requesting he return to work on light duties. The worker attempted to return to work on October 24, 2016, though he indicated he was not assigned light duties. He was assigned to complete a 14-hour run on October 24, 2016. The worker experienced swelling of his foot and remained off work on October 25, 2016. The worker reported to work on October 26, 2016, October 27, 2016, October 28, 2016, November 1, 2016, November 2, 2016, November 3, 2016 and November 4, 2016. The worker contacted the employer on November 5, 2016 stating he was unable to work because his foot was very sore. The employer reportedly advised the worker to take the following week off work. The worker reported to work on November 11, 2016 to pick up his cheque and was provided with termination papers.
Employer Statement
The operating area contacted the employer on November 22, 2016 and spoke with the operations manager. The employer indicated he was not aware the worker sustained a workplace injury on August 31, 2016. He indicated the worker had been off work intermittently due to a foot injury; however, he could not provide specific dates at that time. The employer indicated it was his understanding the worker injured his right foot/ankle at home when he fell off a ladder. The employer confirmed the worker was paid advances while he was off work recovering from his foot/ankle injury.
The operating area obtained a statement from the owner on November 22, 2016. The employer indicated he was aware the worker had injured his foot at home when he fell off a ladder. He could not recall whether he saw the worker in the morning of August 31, 2016, though he indicated he would not have sent the worker out on a job if he knew his foot was in bad shape. The employer indicated the worker came to see him after his shift stating he could not tolerate the pain in his right foot/ankle any longer; however, he could not confirm the date of this interaction. The owner indicated he drove the worker to the doctor’s office. He indicated the worker subsequently returned to work and continued to perform his regular duties.
The employer’s submission dated October 23, 2017 indicated the worker’s employment was terminated on November 11, 2016. The employer submitted that in the short period of time the worker was employed he failed to show up for work on 2 occasions, he damaged a vehicle, he directed profanity toward management, he made disparaging remarks about management to other employees, and demonstrated quickness to agitation and poor temper. The employer is of the positon the worker submitted a claim for WSIB benefits as a retaliatory tactic in an effort to disrupt business.
The employer pointed to the fact the worker reported on 3 different occasions to 3 different health professionals that he fell and injured his foot at home. It was only after he was terminated that he claimed he was injured at work. The employer highlighted the fact that there were no witnesses to the alleged work accident at ABC Steel. It was noted ABC Steel is one of the largest steel distributors in North America, employing approximately 150 people. The employer is of the view that an unwitnessed fall from a truck was extremely unlikely. Furthermore, the employer pointed to the fact the worker managed to deliver the load from Stoney Creek to its destination in Orton 90km away, which would have required all the chains to be secured prior to departure.
The employer submitted that when the worker returned from his shift on August 31, 2016, after driving a 13-speed tractor trailer for 250km, he complained about his foot and asked someone to give him a ride to the medical clinic where his spouse is employed. The owner agreed to drive the worker to the clinic. The employer clarified they are not disputing the worker has an injured foot; they are disputing the accident happened at work. The employer is of the view the worker injured his foot at home prior to August 31, 2016, and reported to work on that date regardless of his injury.
The employer indicated they learned the worker had submitted a WSIB claim for his right ankle/foot on November 22, 2016.
Medical Evidence
Dr. Philbrook assessed the worker on August 31, 2016. A chart note indicated the worker fell 5’ onto his right heel and he was experiencing a great deal of pain. The right ankle was swollen medially and there was tenderness across the heel. It was suspected the worker sustained a right calcaneus fracture. X-rays were taken which confirmed the presence of a right calcaneus fracture. The worker was referred to a specialist. It is noted Dr. Philbrook made no mention as to how the injury was sustained or where it occurred.
Dr. R. Chakravertty, Specialist, assessed the worker on September 2, 2016. The report indicated the worker fell off a 5’ verandah at home approximately 2 days prior. The worker had suffered a right heel injury. The worker was fitted with an air cast and was advised to remain non-weight bearing.
A computed tomography (CT) scan of the worker’s right foot/ankle was completed on September 7, 2016. A comminuted intra-articular joint depression fracture of the calcaneus was observed. On September 9, 2016 Dr. Chakravertty reassessed the worker. The consultation report indicated the worker had a comminuted fracture of his calcaneus with depression was noted. The worker was referred to a surgeon to review surgical options.
Dr. C. Lu, Orthopaedic Surgeon, assessed the worker on September 22, 2016. The report indicated the worker had fallen off a ladder in his backyard, and sustained a right calcaneus fracture. The worker was advised to commence physiotherapy.
Dr. Philbrook submitted a letter dated November 4, 2016 indicating the worker sustained a serious fracture to his right foot and was not to work his regular duties. The worker was advised to work no more than 8 hours per day performing modified duties.
The chart note dated November 4, 2016 from Dr. Philbrook indicated the worker was driving 12 to 14 hours and this was causing pain and swelling in his foot at the end of the day. Dr. Philbrook was concerned the worker was doing too much at this point in his recovery.
Dr. Philbrook submitted a Health Professional’s Report (Form 8) on November 11, 2016 indicating the worker fell off a trailer from a height of 5 to 6’ on August 31, 2016 and sustained a right calcaneus fracture. The worker was advised to remain off work until October 31, 2016 and resume light duties at reduced hours. Dr. Philbrook indicated the worker was unable to work from August 31, 2016 to October 31, 2016; however, the worker requested to return to work on October 24, 2016.
On November 23, 2016 Dr. Philbrook submitted a letter dated November 23, 2016 stating:
For clarity, this patient informed me on August 31 that he fell and hurt himself at work, in the course of his work duties. Also, he informed me on November 4 that he worked long hours with this injury, in spite of being advised by his specialist not to, because he was afraid that if he didn’t he would be fired from his job. At the time I thought this was unlikely to be the case, that the employer would surely understand and offer appropriate modified work.
Assessment of the Evidence
Based on the evidence before me, I accept entitlement is in order for a right calcaneus fracture. The reasons for this decision are provided below.
In order to establish initial entitlement to benefits, operational policy 11-01-01 states in part:
Five point check system
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
With respect to the “five point check system,” the issues in dispute in this appeal include whether the worker sustained a personal work-related injury and proof of accident.
The Workplace Safety and Insurance Board recognizes four different types of accidents, two of which are categorized as being disablements. On this issue, operational policy 15-02-01 states in part:
Accident includes
a wilful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.
Chance event
A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
Disablement
The definition of disablement includes
a condition that emerges gradually over time
an unexpected result of working duties.
The worker is claiming entitlement for a disablement-type accident as an unexpected result of working duties. For a disablement-type injury the worker does not have the benefit of the presumption under Section 13(2) of the WSIA, which states:
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
The onus is on the worker to demonstrate the injury not only occurred during the course of the employment, but that it also arose out of the employment. In other words, the evidence must clearly show that the work caused the injury. In accordance with the Section 13 of WSIA, the burden to prove the work-relatedness of the disablement falls upon the worker.
As per operational policy 11-01-01, the following is considered when considering proof of accident:
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
The most difficult aspect in determining proof of accident involves the discrepancies of the accident history. It is noted the worker’s account of the accident history on his Form 6 and what he reported to the operating area was consistent to what the worker testified at the oral hearing, which is corroborated with his driving log for August 31, 2016. I note the times of his deliveries on the driving log are somewhat different than the times he provided at the oral hearing, however, I have not placed significant weight on those variances as the times provided were approximations. As per the driver log, the evidence supports the worker travelled from ABC Steel to Orton, Ontario to drop off a load, which is undisputed evidence.
The worker provided a detailed account of what occurred at the customer’s site on August 31, 2016. It is noted there were no eye witnesses to the accident at the customer’s site on August 31, 2016. The employer indicated they were informed the worker injured his right foot/ankle at home when he fell off a ladder; however, they could not provide any dates as to when this occurred. The employer maintained the worker did not report he sustained a work-related injury. It is the employer’s position the worker injured his right foot prior to August 31, 2016 and reported to work with an injured foot/ankle. I find there is insufficient evidence in the record to support the worker suffered an ankle injury prior to reporting to work on August 31, 2016. I acknowledge the worker provided anecdotal evidence to Dr. Chakravertty that he fell off a 5’ verandah and advised Dr. Lu he fell off a ladder in his backyard; however, I accept the worker did this in an effort to maintain his promise to the employer to not file a WSIB claim. Given the extent of the worker’s right ankle injury, I find it unlikely the worker could have reported to work on August 31, 2016 and engaged in his regular work activities including driving and securing a load with an already fractured foot/ankle, as suggested by the employer.
The record indicated the operating area obtained witness statements from co-workers. One co-worker confirmed he was aware the worker had injured his ankle at home and another witness indicated he was aware the worker had injured his ankle. I have not placed significant weight on these witness statements as they do not help establish proof of accident in this case, as these were not eye witnesses to the accident on August 31, 2016.
The record indicated that on December 1, 2016 the operating area asked the worker to obtain surveillance evidence from ABC Steel on August 31, 2016 to confirm the worker actually fell off the trailer as he claimed. It was noted the worker was unable to obtain the surveillance evidence from ABC Steel. As per memorandum A0014, it was noted worker had requested witness statements from the shippers and receivers at XXX Inc. XXX Inc. advised the operating area they wanted the worker to sign a consent to release form. The record does not contain any witness statements from the XXX Inc. shippers and receivers that assisted the worker on August 31, 2016. I have not placed significant weight on the fact surveillance evidence was not produced or witness statements were not obtained from the shippers and receivers at XXX Inc. as the worker could not have likely obtained this information on his own. I agree surveillance evidence from ABC Steel and/or witness statements from the shippers and receivers at XXX Inc. could have potentially helped establish proof of accident in this case; however, the fact that surveillance evidence and witness statements could not be obtained does not prove a work accident did not occur, only that the information could not be obtained.
The evidence supports the worker contacted the employer at the end of his shift on August 31, 2016 advising his right ankle/foot was injured, and the employer confirms he drove the worker to a medical clinic. The worker advised Dr. Philbrook he injured his right ankle/foot at work; however, he wanted the record to show that he fell off a ladder at home. As previously indicated, Dr. Philbrook did not indicate in the chart note where the worker sustained the injury or how the injury was sustained. It is noted Dr. Philbrook did not complete a Form 8 at that time, likely at the request of the worker not to file a WSIB claim. The worker testified he wanted to adhere to the employer’s request not to file a WSIB claim because he did not want to lose his job and was assured by the employer they were going to pay him while he was off work and cover any treatment he may need. In review of the facts of this case, I have placed significant weight on the letter submitted by Dr. Philbrook dated November 23, 2016 which corroborates the worker’s statement of reporting a work accident to him on August 31, 2016. Dr. Philbrook confirmed he was made aware the worker injured his right foot/ankle at work on August 31, 2016, thus establishing proof of accident in this case.
The employer indicated the worker was motivated to file a WSIB claim as a retaliation effort given his loss of employment. It is noted the worker was paid advances by the employer while he was recovering from his ankle injury, and the worker was informed he was no longer entitled to advances in October 2016 after he returned to work. The record indicated the worker was subsequently terminated from his employment on November 11, 2016. I make no finding with respect to the worker’s termination as the issue is not properly before me. While I appreciate the employer’s perspective, I agree there is sufficient evidence in the record to support the worker sustained a personal work-related injury on August 31, 2016 as proof of accident has been established in this case. I accept the worker delayed in reporting an accident to WSIB because he was paid by the employer while he was recovering from the injury, and he promised the employer he would not file a WSIB claim.
Based on the foregoing, I accept the worker’s statement in that he injured his right ankle/foot on August 31, 2016 while in the course of his job duties, he reported the accident to the employer that day, he reported the work injury to Dr. Philbrook on August 31, 2016, and began losing time from work on September 1, 2016, thus establishing proof of accident in this case.
On a balance of probabilities, I accept the worker more likely than not sustained a personal work-related right ankle injury on August 31, 2016, as such initial entitlement to benefits is in order.
Conclusion
I conclude the worker is entitled to benefits for a right ankle/foot fracture sustained on August 31, 2016. The operating area shall determine the extent and duration of benefits flowing from this decision.
The worker’s objection is allowed.
DATED February 16, 2018
L. Mansueti Appeals Resolution Officer Appeals Services Division