WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180016
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer
REPRESENTED by: Representative
HEARING: Hearing in Writing
HEARD by: K. Gowans, Appeals Resolution Officer
Dated: March 29, 2018
ISSUE
The worker objects to the February 21, 2017 Eligibility Adjudicator (EA) decision which denied initial entitlement to a pelvis and left knee injury she claims occurred on January 11, 2016.
BACKGROUND
On January 11, 2016, this then 57 year old letter carrier reported to her employer that she slipped and fell on her left side while delivering mail, injuring her left knee and pelvis. As she did not lose time from work, or seek medical attention at the time, there was no claim established with the Workplace Safety and Insurance Board (WSIB).
On February 2, 2017, the worker sought medical attention for her pelvis and subsequently underwent a surgical procedure on February 4, 2017. She contacted her employer on February 6, 2017 to claim that the surgical procedure was related to the slip and fall incident from January 2016.
In a decision dated February 21, 2017, entitlement to a pelvis and left knee injury occurring on January 11, 2016 was denied as it was concluded that proof of an accident had not been established.
The worker disagrees with the EA decision and has brought the case forward to the Appeals Services Division for further consideration. The worker representative completed an Appeal Readiness Form (ARF) on October 13, 2017 requesting that the objection be resolved through an oral hearing. However, in the administrative decision by an Appeals Registrar dated February 16, 2018, the allowance of an oral hearing was denied. Instead, it was determined that a decision would be rendered through a Hearing in Writing.
AUTHORITY
Policy Document: 11-01-01 Adjudicative Process
Policy Document: 15-02-01 Definition of an Accident
Policy Document: 15-02-02 Accident in the Course of Employment
ANALYSIS
For the reasons set out below, I find I am unable to accept initial entitlement to the pelvis and left knee in this claim.
In reaching this conclusion, I note that the file evidence establishes that the worker is employed as a postal carrier for the Federal Government. As outlined in the Employer's Report of Accidental Injury (Form 7) on file dated February 9, 2017, it is undisputed that the worker contacted the employer on January 11, 2016 to report having slipped and fallen on ice while delivering mail. The employer documented that the worker advised them that she slipped and fell at 12:24 pm and subsequently reported the incident at 15:25 that same day.
In an attached "Employee's Report of Injury" dated January 11, 2016, the worker wrote that she fell on ice while delivering mail. When asked to describe what injuries she suffered, the worker identified a "bruised knee and buttock" and a tender left wrist. She also stated that she fell on the same knee a couple of houses later as well.
The document specifically asked if the worker required medical attention for the injury, to which she indicated "no".
The information on the Form 7 goes on to indicate that the worker called into work on February 6, 2017 to advise that she had undergone a surgical procedure two days earlier to repair a fracture in her pelvis. The worker claimed that the fracture occurred at the time of the slip and fall incident in January 2016.
In memo#A0003, the worker confirmed for the EA that she slipped and fell on ice on January 11, 2016. She stated that she was able to continue performing her regular duties following the incident and did not seek medical attention for any injuries until she saw a doctor in early February 2017.
In the intervening period, the worker confirmed that "the pain got better during the summer and fall of 2016, however the pain started getting worst (sic) during the winter of 2016". When she saw the doctor in February 2017, she stated that she was told there was a "crack in her pelvis area". She felt that the January 2016 slip and fall was the cause of the pelvic fracture.
In the same memo, the EA spoke to the employer. She confirmed that the January 2016 incident was reported to them at the time however the worker was able to perform her regular duties immediately following and throughout the remainder of 2016. The employer confirmed they were "not aware of any ongoing issues or concerns".
The EA considered the information provided by the worker and employer and denied the claim citing that proof of accident could not be established given the significant delay in seeking medical attention and lack of continuity.
In support of her appeal, the worker attached additional medical information to her ARF which was not on file at the time of the EA decision. Of note is the chart entry from the worker's family doctor, Dr. Chung, dated January 31, 2017. It referenced the worker complaining of left knee pain for the past "few mos" as well as a cramp in the hip / upper thigh since the fall. This led to the worker undergoing left hip x-rays on February 2, 2017 and February 3, 2017. The latter report identified that the worker had a "chronic appearing incomplete stress fracture at inferior left femoral neck margin".
On February 3, 2017 the worker saw orthopaedic surgeon Dr. MacEwan who indicated that the worker was seen for "pain in her left hip and knee region for approximately the last year". He stated that the worker "can trace this back to a traumatic incident where she fell while carrying a bag on her route, hard on her left hip".
He went on to confirm that imaging performed on the hip revealed "obvious sclerosis with an obvious fracture on the compression side". Surgery to repair the fracture was recommended and took place on February 4, 2017.
Following the denial of the claim, Dr. MacEwan submitted a report to file dated February 27, 2018. In his report, he summarized his discussions with the worker and how she was able to recollect the events surrounding her slip and fall in January 2016. He did not provide any medical continuity for the period between January 2016 and February 2017 but did suggest that the "fracture was entirely in keeping with a chronic injury".
In the intervening period between January 2016 and February 2017, there are 2 chart entries on file from Dr. Chung, dated April 22, 2016 and June 24, 2016. Both are for unrelated medical visits and neither make mention of any left hip complaints.
In her letter dated October 2, 2017, the worker submits that following the fall she continued to experience pain although confirms that she was able to continue with her regular duties. She noted that she has a prior right knee injury and therefore walking with a bit of a limp was not out of the ordinary. When the pain became worse, she sought treatment from her doctor which resulted in the urgent surgical procedure. While she suggested that she had asked for assistance "on many occasions" through her employer, she did not provide objective evidence of this occurring.
Of note, the worker did attach a letter from a co-worker dated October 4, 2017, who advised that he "worked beside" the worker for 2 years. He stated that he witnessed the worker asking "for assistance on her route" which was "mostly denied" by management at work. However, it is unclear as to what period of time he was referring to as well as the fact that the requests for assistance could have been related to the worker's compensable right knee injury. He does not document being aware of pain complaints associated with the left hip.
Submissions
The worker representative on file did not provide any written submissions on the issue. The worker, however, provided an additional submission to file dated March 18, 2018. She reiterated her position that the chronic pelvis fracture identified in February 2017 was caused by the slip and fall incident of January 2016. She described having a high pain tolerance thereby allowing her to continue with her regular job duties. She referenced Dr. MacEwan's February 27, 2018 report as being supportive of her position. She also provided an additional report from Dr. Chung, dated March 11, 2018, which provided essentially the same analysis as the report from Dr. MacEwan. The report, however, did not provide any medical continuity information for the period between January 2016 and February 2017.
The worker asks that entitlement be accepted to the pelvis and left knee injuries she suffered on January 11, 2016.
The employer provided a written submission to file dated March 6, 2018. The employer relied on the 12 month delay in seeking medical attention, as well as the fact that the worker performed her regular duties during this period as being supportive of the denial of initial entitlement in the claim.
Policy
WSIB policy document 15-02-01 relates to the issue of initial entitlement. In part, the policy states the following:
"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.
The policy goes on to advise of the following:
"A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
"The definition of disablement includes:
- A condition that emerges gradually over time
- An unexpected result of working duties.
Furthermore, policy document 11-01-01 describes the process used by decision makers in order to establish if initial entitlement in a claim is in order. In part, the policy reads as follows:
"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."
To determine proof of accident, the following excerpt from the policy is noted:
"Decision makers may consider the following when examining 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 a delay in the onset of symptoms or in seeking health care attention?"
Assessment
When I assess all of the available information in the claim file, I find that I am unable to accept that proof of accident has been established to a pelvis stress fracture and left knee injury in this claim.
In reaching this conclusion, I had regard for the entire claim file however found the following evidence particularly relevant to the issue under appeal:
- The employee's accident report completed by the worker on January 11, 2016 made reference to a bruised knee and buttocks, but no mention of falling hard on the left hip. In addition, the worker confirmed that she did not feel she needed to seek medical attention at that time.
- The record confirms that the worker performed her regular job duties from the period immediately following the slip and fall up to the time she sought medical attention in February 2017. During this period, the employer has indicated that they were unaware of any complaints associated with the January 2016 incident.
- In the intervening period, the worker was seen on two occasions by her family doctor, in April and June 2016. During both visits, detailed chart notes were taken however there was no mention of any lingering hip complaints associated with the slip and fall.
- The worker's co-worker has provided a written statement indicating that he was aware of the worker asking the employer for periodic assistance with her route, however it is unclear as to when the timing of this was, whether the requests were for hip complaints or whether they were related to her prior compensable knee injury.
- The February 27, 2018 medical report from Dr. MacEwan relies on the premise that the worker experienced consistent pain in her hip for the year prior to being assessed, and that the worker fell hard on her left hip in January 2016. However, as noted above, the incident report from January 2016 makes no reference to landing on the hip and the medical information available from 2016 makes no reference to persistent pain complaints in the hip. As such, I am unable to place significant weight on Dr. MacEwan's position.
- For the same reasoning, I am unable to place significant weight on the March 11, 2018 opinion from Dr. Chung.
While I acknowledge that there was a slip and fall incident recorded by the employer as occurring on January 11, 2016, I find that the ability of the worker to perform regular duties, with no confirmed continuity of complaint and no medical attention for over one year makes it unlikely that the documented pelvis stress fracture identified in February 2017 is related to the workplace incident described by the worker as occurring on January 11, 2016. As such, proof of accident has not been established and therefore the worker's appeal is denied.
CONCLUSION
The worker's request for initial entitlement to a pelvic stress fracture and left knee injury occurring on January 11, 2016 is denied.
DATED March 29, 2018
K. Gowans
Appeals Resolution Officer
Appeals Services Division