Worker v. Employer, 2021 CanLII 133822

20210018

REPRESENTED by:

employer

REPRESENTED by:

TELECONFERENCE – september 21, 2021

HEARD by:

m. haughton, appeals resolution officer

DATED: SEPTEMBER 30, 2021

ISSUES

The worker is objecting to the following decisions:

The Case Manager’s (CM) decision dated March 9, 2020, which denied entitlement to loss of earnings (LOE) benefits following a permanent work disruption under claim A.
The Eligibility Adjudicator’s decision dated April 25, 2018, which denied initial entitlement to the lower back under claim B.

BACKGROUND

Claim A

On December 19, 2013, this personal support worker was repositioning a resident to pull down their nightgown, when they experienced pain in their right shoulder. The worker reported the incident to the employer on December 19, 2013 and sought medical attention on December 20, 2013. Initial entitlement was accepted for a right rotator cuff strain/sprain. Entitlement was subsequently extended to include a right shoulder supraspinatus tear and subscapularis tendonitis.

The CM determined the worker reached maximum medical recovery for the right shoulder on

June 14, 2014 and a permanent impairment was identified. On September 18, 2014, the worker received a three (3) per cent Non-Economic Loss (NEL) award for the right shoulder. On October 7, 2014, the employer confirmed they were able to accommodate the accepted permanent functional precautions for the worker’s right shoulder.

On May 4, 2018, the worker’s employment was terminated. The employer noted they had investigated two (2) personal injuries reported by the worker. Based on the findings of their investigation, the employer was of the opinion the claims were fraudulent and the worker’s employment was terminated for a breach of the employer’s trust. The worker claimed entitlement to LOE benefits following termination.

On March 9, 2020, the CM denied entitlement to LOE benefits subsequent to May 4, 2018. The CM noted the employer had continued to accommodate the worker’s right shoulder impairment and the worker’s termination resulted from an employment situation and was not due to the work-related injury.

Claim B

On April 5, 2018, this personal support work tripped over a carpet mat as they entered the building. The worker reported the incident to the employer and sought medical attention on April 5, 2018. The worker did not initially lose time from work as they returned to modified work.

On April 25, 2018, the EA denied initial entitlement to the lower back as the diagnosed lower back strain was not compatible with the reported mechanism of injury. The EA noted the video of the incident provided by the employer, which was captured on a security camera, demonstrated the worker caught one foot on the carpet and they immediately regained their balance and continued to walk forward with a normal gait. The EA indicated there were inconsistencies between the worker’s report of the incident and the video and there was no evidence the worker jarred her entire body. The EA also noted the worker had been diagnosed with an upper back strain after seeking medical attention on the date of accident; however, subsequent medical reports referenced the mid to lower back.

The worker’s objection to the EA’s decision dated April 25, 2018 in claim B and the CM’s decision dated March 9, 2020 in claim A, form the basis for this appeal.

AUTHORITY

Workplace Safety and Insurance Act, 1997 (The Act), Section 40(1), 40(2)

Operational Policy Manual

Published

Policy 11-01-01 Adjudicative Process

November 3, 2008

Policy 15-02-01 Definition of an Accident

October 12, 2004

Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, the worker’s testimony, legislation and relevant operational policies in reaching this decision. I find the worker has initial entitlement to a lower back strain under claim B. Further, I find the worker has entitlement to LOE benefits following the termination of her employment on May 4, 2018 under claim A. My findings and analysis are explained below.

The Appeal Readiness Forms dated April 9, 2021, did not include submissions for consideration. During the oral hearing, the worker representative submitted proof of accident had been established under claim B and the diagnosed low back strain was compatible with the accepted mechanism of injury. As a result, initial entitlement to the lower back should be accepted under claim B. The worker representative also submitted the worker’s permanent right shoulder impairment accepted under claim A impacted the worker’s ability to secure employment. As a result, the worker was entitled to LOE benefits beginning May 4, 2018.

The Respondent Forms dated July 13, 2021 and August 18, 2021, did not include submissions for consideration. During the oral hearing, the employer representative submitted there were inconsistencies in the worker’s report of injury under claim B and there was no evidence of a “running fall” and the worker did not break stride after tripping on the carpet mat. The representative also noted there was no indication the worker put their arm out to steady themselves and this was not previously reported. Additionally, the clinical records referenced the worker’s upper and mid back rather than the lower back. The representative also submitted the diagnosed back strain was not compatible with the mechanism of injury and initial entitlement to the lower back should not be accepted. The representative stated the employer had permanently accommodated the worker for her right shoulder impairment under claim A; however, after investigating two (2) false claims of injury, the worker’s employment was terminated with cause. The representative noted there were no re-employment rights under this claim and the worker’s permanent restrictions were minor in nature. The representative noted there were many no lift facilities where the worker could have sought employment following the termination and there was a demand for employees in this field. The employer representative submitted the worker was not entitled to LOE benefits beginning May 4, 2018.

Worker’s Testimony

The worker testified they were hired by the employer in March 2012 as a personal support worker. The worker stated that it was their job to provide care to the residents, including assisting with serving meals, bathing and toileting residents, assisting residents with their hygiene needs and pushing wheelchairs. The worker confirmed the nursing home where they were employed had a no lift policy, which meant that there was no lifting of the residents. The worker indicated that their job duties did require some lifting, such as lifting laundry bags to drop them down the laundry chute.

The worker stated that in December 2013, they sustained a right shoulder injury, while putting a resident to bed and assisting them with their personal care routine. The worker stated that they pulled the resident toward them and up off the bed to adjust their nightgown when they experienced pain in their right shoulder. The worker stated that they were unable to continue to provide care to the resident and a co-worker completed the task.

The worker indicated that following the injury they received physiotherapy; however, they did not fully recover from the work-related injury. The worker stated that the employer provided them with modified work following the injury. The worker reported they were assigned to a wing with lighter, more mobile residents. They indicated they were unable to push wheelchairs, move lifts or complete any work at or above shoulder height. The worker indicated they had difficulty bathing and dressing and undressing residents. Additionally, they found it difficult to feed residents and the employer provided them with a stool to complete this task.

The worker reported they sustained injuries to their lower back on January 27, 2018 and April 5, 2018. The worker stated that on April 5, 2018, they were coming in the staff entrance of the work site with a co-worker when their foot hit the carpet edge and they stumbled forward. The worker stated that they reached for the wall and took a few steps to prevent themselves from falling. The worker explained that when they had reported a “running fall”, they had meant that they had taken a few quick steps to prevent a fall.

The worker indicated that they rested in the staff area before their shift began and they began to have pain in their back. The worker indicated that they started to complete some of their job tasks and then reported to the dining area for a shift change report. The worker stated that during the shift change report they notice their back was sore and seizing up. They mentioned the issues with their back to a co-worker and the co-worker advised them they needed to report the injury as it occurred on the employer’s premises. The worker reported the incident and the employer ask/encouraged them to seek medical attention. The employer subsequently called a taxi to take the worker to the hospital.

The worker stated that while at the hospital they were assessed for their lower back; however, they noticed after the fact that the physician had identified the area of injury as the upper back on the Health Professional’s Report (Form 8). The worker indicated they were subsequently seen by their family physician for their lower back. The worker indicated they were unclear why their physician had noted the mid back on a Functional Abilities Form as the issue had always been their lower back. The worker stated they had no problems with their lower back prior to January 2018. The worker indicated they had ongoing issues with their lower back and they managed their symptoms with medication, stretches and by using a TENS machine at home.

The worker stated that on April 26, 2018, the employer requested a meeting with them and they were sent home. The worker indicated they were confused by the employer’s demeanour and they asked if they were being fired. The worker stated the employer advised them to go home and they would call them. The worker reported that three (3) or four (4) days later they were contacted by the employer and they were advised that an investigation had been completed. The worker stated the employer told her that they did not feel the injuries that had been reported were true and as a result their employment was being terminated. The worker confirmed they continued to perform modified work at the time of the termination.

The worker indicated that following their termination, they initiated a grievance through their union and the grievance was resolved. The resolution of the grievance was that the worker resigned from their position versus having been terminated.

The worker reported that they looked for work and found a private client, working one (1) hour per day, one (1) day per week. The worker stated the work was very light and they worked with this client for approximately two (2) years. The worker stated they had looked for work in customer service, but they were unable to complete the lifting that most of the jobs required. The worker also identified their age as a barrier to employment. The worker indicated that they had worked for a tax preparation service for

one (1) tax season; however, they had not returned to this position as they couldn’t manage the upgrading and courses that were required as they were dealing with a personal situation and they were unable to concentrate. The worker indicated that they received Employment Insurance (EI) benefits following the termination and they were now in receipt of Canada Pension Plan benefits as they had retired.

The worker stated they had continued difficulties performing their activities of daily living. The worker indicated that grocery shopping was difficult as it was hard to carry heavier items and standing too long caused their back to ache. The worker also indicated that they had difficulty vacuuming and washing their floors; however, they stated that as they lived alone they put these tasks off when they were in pain and completed household tasks at their own pace.

Other Pertinent Information

As a result of the accepted shoulder injury, the worker met with an occupational therapist (OT) for job coaching on May 15, 2014. The OT noted the worker was observed to work with a partner to transfer some of the heavier residents using a ceiling lift. The worker was also observed taking meal orders in the dining room. The worker documented the orders from the residents on a clipboard. The worker indicated that they found this activity challenging as they needed to stoop over the tables to speak to the seated residents. The worker was advised to stretch periodically while performing this task. The worker also reported difficulty giving residents a bath. The OT recommended that two (2) staff always be engaged in moving the tub chair to and from the tub when loaded with a resident. The worker agreed they were capable of completing one (1) or two (2) baths per shift; however, they did not feel ready to be assigned to the “bath shift”, where bathing was the predominant duty and was completed repetitively. The worker was also noted to have difficulty lifting the leg rests of a residents wheelchair while the resident’s legs were in the leg rests.

Under claim A, the worker has a recognized permanent impairment and permanent functional precautions for the right shoulder. The recognized functional precautions, as outlined in the decision dated September 16, 2014, include:

occasional bilateral lilting/lowering from waist to shoulder, 9.1 kilograms (kg)
occasional unilateral lifting/lower from waist to shoulder, 2.3 kg on the right and 5.7 kg on the left
occasional bilateral lifting/lower from floor to waist, 11.4 kg
occasional unilateral lifting/lowering from floor to waist, 4.5 kg on the right and 9.1 kg on the left
occasional bilateral carry for 20 metres: up to 11.4 kg
occasional bilateral push force: 12 kg
occasional bilateral pull force: 11.4 kg
no sustained work above shoulder level with the right upper extremity beyond one (1) minute and 30 seconds.

A letter from the employer dated October 7, 2014, addressed the worker’s accommodations. The employer confirmed the worker was employed in no lift facility. The worker was noted to be able to trade off residents who required heavier care, which caused the worker difficulty in moving the resident’s legs into the slings. The employer noted that the worker had confirmed that other staff on their assigned floor had no issues trading tasks with them. The employer confirmed there was no expectation to lift heavy legs and a machine lift should be used for all residents who were unable to lift their legs. The employer also noted that the worker was not expected to work above shoulder level for more than one (1) minute and thirty seconds and a feeding stool would be provided, which would allow the worker to adjust to the correct height to feed the residents.

The employer provided an authenticated video of the April 5, 2018 incident captured on a security camera. The worker is seen entering the building with another staff member. The worker caught their left foot on the edge of a carpet mat on the floor causing the edge of the mat to roll. The worker stumbled slightly and raised their right arm in the air in what appeared to be an attempt to regain their balance. The worker did not reach out to the wall for support and they continued to walk forward with a normal gait. The other staff member stopped to adjust the mat, which had rolled at the edge.

Clinical records which pre-dated the work-related injury indicated the worker was seen by their family physician on February 27, 2018 and March 13, 2018 for their lower back. The worker reported ongoing back ache on February 27, 2018. On March 13, 2018, the worker indicated their lower back had improved and the pain was nearly gone.

A Health Professional’s Report (Form 8) dated April 5, 2018 provided a diagnosis of a muscle strain of the upper back. The worker was advised to manage their symptoms with Tylenol, ice and stretching. Functional precautions for the back were provided for three (3) to seven days and the worker was noted to be able to return to modified work on April 6, 2018.

An Eligibility Template dated April 10, 2018, noted the worker reported they tripped on a weather mat. The worker indicated that they did not see it until they tripped on it. The worker stated that while they did not hit the ground, they had a “running fall” and jarred her entire body. Shortly after the fall, the worker sat down and noticed a pain in their lower back, which increased over time. The worker reported the incident was witnessed by a co-worker.

A clinical record dated April 10, 2018, noted the worker tripped over a carpet at work and went to urgent care. The worker indicated they “jarred” their back when they tripped on the carpet. The worker stated that their feet kicked up the mat. The worker confirmed they did not fall, but minutes later they were sore and the pain increased. The worker indicated that they were icing their back for 20 minutes every hour. The worker also reported they returned to work on April 5, 2018 and had worked their shifts since. The worker was noted to have sustained a musculoskeletal injury. The worker indicated that they were off work on April 9, 2018 due to a migraine and stress.

A Functional Abilities Form (FAF) dated April 10, 2018, provided functional precautions for the lower mid back, including pushing, pulling, bending and twisting of the lower back, lifting laundry bags and bathing residents. The worker was noted to be able to return to modified work.

A clinical record dated April 17, 2018 noted the worker’s mid back had improved and they had started to do more lifting, pulling and pushing. The worker’s range of motion was noted to be good and the worker had slight tenderness of the lower back. The worker was noted to have returned to the duties they were performing prior to their fall.

A clinical record dated October 16, 2018, noted the worker reported they always had a level of low back pain and occasional flare ups. They indicated they were not back to the same level that they had been before. The worker stated they had three (3) flare ups in the past six (6) months.

A clinical record dated February 15, 2019, noted the worker had pain in their knee and right shoulder and their lower back was achy at night. The worker indicated that activity worsened their shoulder pain. The worker was referred for an x-ray and an ultrasound of the right shoulder.

An ultrasound of the worker’s right shoulder completed on February 26, 2019, showed evidence of partial thickness tear of the anterior fibers of the supraspinatus tendon with associated calcification.

A clinical record dated March 11, 2019, noted the worker had pain in their right shoulder as well as issues with their knee while ascending and descending stairs. The worker indicated they were taking Tylenol Arthritis twice per day and using a heating pad to manage their shoulder symptoms.

A medical report from the worker’s physician dated April 16, 2019, noted that prior to the April 5, 2018 incident, the worker had a back injury on January 27, 2018, when they jerked their back when they slipped on uneven ground while carrying a tray. The physician indicated the worker was on modified work until March 13, 2018, when they returned to their regular job duties. The physician noted that following the April 5, 2018, injury the worker continued low back pain caused by the mechanical back strain. The worker was noted to have a history of back problems and a smaller incident could initiate a flare up.

Initial Entitlement to a Lower Back Strain under Claim B

According to Policy 15-02-01, Definition of an Accident, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable unintended event which causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties. In this case, the worker is claiming entitlement to a low back injury that resulted from a chance event.

With respect to establishing initial entitlement, Operational Policy 11-01-01, Adjudicative Process states that 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

In determining proof of accident decision makers are asked to consider a number of factors including whether an accident or disablement situation existed; whether there were any discrepancies in the date of accident and the date the worker stopped working; whether there was any delay in the onset of symptoms or in seeking health care attention and whether there were any witnesses.

In this case, the worker reported an onset of lower back pain after stumbling on a carpet mat as they entered the work site on April 5, 2018. The worker reported the incident to the employer and sought medical attention on April 5, 2018. The worker did not initially lose time from work as the employer provided them with modified work. I note there are some inconsistencies in the reported mechanism of injury, primarily regarding whether the worker reached for the wall for balance and whether the worker immediately regained her balance or whether it took them a few steps to do so; however, these inconsistencies do not negate the fact that the worker stumbled on the carpet mat. I find proof of accident has been established.

While I note the Form 8 completed by the emergency department physician identified the area of injury as the upper back, this appears to be an error on the part of the physician as the worker has consistently reported an injury to their lower back. I note the worker’s physician made reference to the worker’s mid back on an FAF; however, I interpreted this reference as the middle of the worker’s lower back.

In review of the video footage provide by the employer, while the April 5, 2018 incident appears fairly insignificant, the worker’s physician noted that even a smaller incident could cause a flare up of the worker’s lower back. I find the diagnosed lower back strain is compatible with the reported mechanism of injury.

I find the worker has met all five points for an allowable claim, as noted in Policy 11-01-01. As a result, I find the worker has initial entitlement to a lower back strain.

Entitlement to LOE Benefits Following Termination of Employment under Claim A

The worker testified they were hired by the employer as a personal support worker in March 2012. The worker indicated that they performed their full regular job duties without issue until December 13, 2013, when they sustained a work-related right shoulder injury, which subsequently required permanent accommodation. The worker confirmed the employer continued to accommodate their permanent functional precautions until their employment was terminated on May 4, 2018.

As outlined in the letter from the employer dated May 4, 2018, the worker’s employment was terminated. The employer noted they had investigated two (2) personal injuries reported by the worker. Based on the findings of their investigation, the employer was of the opinion the claims were fraudulent and the worker’s employment was terminated for a breach of the employer’s trust. These injuries reportedly occurred on January 27, 2018 and April 5, 2018. The claim related to the January 27, 2018 injury is not before me; however, as noted above, initial entitlement to the lower back has been accepted in claim B, pertaining to the April 5, 2018 injury

The worker testified that following their termination a grievance was initiated which was resolved with an agreement that the worker had resigned from her position rather than terminated from their position. It is unclear if there was a financial component to the agreement. While I appreciate the resolution of the grievance was that the worker resigned from her position versus being terminated, there is no evidence to support the worker had any inclination of resigning from their position prior to the employer altering the worker’s employment status on May 4, 2018. Further, the agreement between the worker and the employer was not provided for review. I find the evidence supports the worker’s employment was terminated. The worker indicated that they made attempts to seek new employment; however, their right shoulder injury impacted their ability to secure employment. The worker indicated they were only able to secure work as a personal support worker for one (1) hour per day, one (1) day per week. The worker also indicated that for one (1) tax season they had been employed with a tax preparation service.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of:

the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.

The issue to be determined is whether the loss of earnings the worker experienced after May 4, 2018, can be said to have resulted from their work-related impairment. In most cases, termination of employment constitutes an intervening event, overwhelming the role of the injury, particularly where the worker’s conduct amounts to a repudiation or fundamental breach of the employment contract, which results in the loss of the employment opportunity. This is similar to other situations in which a worker’s actions are responsible for the unavailability of employment, which would otherwise be available, such as resigning or refusing suitable employment, or being unavailable for suitable employment due to relocation or non‑compensable illness. In these circumstances, there is no entitlement to LOE benefits.

The fact that the worker may have been terminated for reasons unrelated to the workplace injury does not automatically mean that the worker is not entitled to ongoing benefits following their termination. Rather, it is important to consider whether the workplace injury continued to make a significant contribution to that loss of earnings. If the termination of employment is unrelated to the workplace injury, the worker’s actions leading up to the termination need to be reviewed in order to determine whether the worker’s actions broke the chain of causation between the workplace injury and the loss of earnings.

A termination of employment makes further work with the employer unavailable, including any potential suitable modified work. In that sense, it shares some similarity with events such as a worker quitting or refusing suitable modified work or a worker being unavailable due to a non-compensable condition. However, in the case of termination, some inquiry into the reasons for the termination is necessary because both parties have obligations in the ESRTW process. It is, therefore, necessary to the determine the extent to which ongoing work became unavailable due to actions of the employer independent of the worker’s conduct and the extent to which the worker’s conduct contributed to the termination such that the worker may be responsible for the loss of the availability of work.

Cooperation in ESRTW is addressed under section 40 of the WSIA as follows:

40(1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by,

(a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery and impairment;

(b) attempting to provide suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores the worker’s pre-injury earnings;

(d) doing such other things as may be prescribed.

(2) The worker shall co-operate in his or her early and safe return to work by,

(a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery and impairment;

(b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores his or her pre-injury earnings;

(d) doing such other things as may be prescribed.

From the worker’s testimony, I was not left with the impression that the worker was uncooperative in her ESRTW obligations or that their conduct could be considered an intervening cause which broke the chain of causation between the workplace injury and their ongoing loss of earnings benefits. While the employer may believe that their motivation for terminating the worker’s employment was genuine, the circumstances surrounding the termination did not amount to an intervening cause that rendered insignificant the contribution of the workplace injury to the worker’s subsequent loss of earnings. By terminating the worker’s employment, the employer also terminated the ESRTW process resulting in modified work being unavailable to the worker. While I do not believe the employer was non-cooperative in the ESRTW process, I do find that by terminating the worker’s employment, the employer was unable to provide work for the worker that is consistent with the worker’s functional abilities and that restored the worker’s pre-injury earnings. Accordingly, the worker sustained a wage loss as a result of the work-related injury. I find that the worker is entitled to LOE benefits following their termination on May 4, 2018.

CONCLUSION

The worker’s objection is allowed.

The worker has initial entitlement to a lower back strain under claim B. Benefits flowing from this decision are remitted back to the Operating area for further review, subject to the usual rights of appeal.

Under claim A, the worker has entitlement to loss of earnings benefits following the termination of their employment on May 4, 2018. The nature and duration of the LOE benefit is to be determined by the Operating area, subject to the usual rights of appeal.

DATED September 30, 2021

M. Haughton

Appeals Resolution Officer

Appeals Services Division