2022 CanLII 44777

20220038

employer

REPRESENTED by:

Employer representative

worker, not participating)

HEARD by:

Stephanie Waters, appeals resolution officer

DATED:

february 4, 2022

ISSUES

The employer objects to two decisions made in the claim:

The Eligibility Adjudicator’s (EA’s) decisions dated May 19, 2020 and May 27, 2020, which:

a. Allowed initial entitlement to healthcare benefits for head and upper back contusions as well as an acute subarachnoid hemorrhage;

b. Allowed entitlement to loss of earnings (LOE) benefits from May 15, 2020 onward.

The Case Manager’s (CM’s) decision dated February 24, 2021, which denied entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).

BACKGROUND

The employer documents that the worker was employed with them for six months before the accident. On May 14, 2020 while working as a drywall taper they were standing on a 6ft high scaffold. They reported stepping backwards, missing the platform, and falling back onto the concrete floor. The worker briefly lost consciousness and a co-worker found them on the ground. The accident was reported to the employer and the worker was taken to the hospital the same day. The employer objected to the claim because they believed the worker fell while standing next to the scaffold due to a diabetic medical episode.

In a Health Professional’s Report (Form 8) dated May 14, 2020, the hospital doctor documented the worker injured their upper back and brain due to a fall from scaffolding. They diagnosed the worker with a subarachnoid bleed and indicated the worker was physically unable to work due to their workplace injury. The employer offered modified duties on May 19, 2020, but the worker remained off work based on the doctor’s recommendation from May 15, 2020 until they returned to their regular duties on June 15, 2020.

In letters dated May 19, 2020 and May 27, 2020, the EA granted entitlement to healthcare benefits for upper back and head contusions as well as an acute subarachnoid hemorrhage. They explained there was no evidence to suggest the worker fell due to a medical episode. The EA also granted LOE benefits from May 15, 2020 onward because medical reporting stated the severity of the worker’s injury made them fully impaired and unable to work.

The employer requested SIEF cost relief on July 16, 2020. They argued the worker’s diabetes may have contributed to the accident and prevented the worker from recovering from their injury sooner. On February 24, 2021, the CM wrote a letter denying SIEF cost relief. The CM explained there was no evidence to support a pre-existing condition caused the accident, enhanced the worker’s degree of impairment, or directly impacted the worker’s recovery.

The employer’s representative objected to both of these decisions and submitted additional information and arguments to file. In a letter dated June 16, 2021, the CM confirmed the denial of SIEF cost relief. In another letter dated June 23, 2021, the EA confirmed the allowance of healthcare and LOE benefits. The employer’s representative then submitted an Appeal Readiness Form to object to both decisions.

AUTHORITY

Workplace Safety and Insurance Act, 1997 (The Act) Section 13(2)

Operational Policy Manual

Published

11-01-01 Adjudicative Process

14-05-03 Second Injury and Enhancement Fund (SIEF)

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

November 3, 2008

February 20, 2006

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:

Entitlement to healthcare benefits is in order for head and upper back contusions and an acute subarachnoid hemorrhage;
Entitlement to full LOE benefits is in order for the period of May 15, 2020 to June 14, 2020 inclusive;
Entitlement to SIEF cost relief is not in order.

The employer’s appeal is denied.

Worker’s Position

The worker did not return the Participant Forms and they are not participating in the appeal.

Employer’s Position

It is the employer representative’s position that entitlement to benefits is not in order because the worker fell from a standing position or fell from the scaffold due to low blood sugar. In the alternative, it is the employer representative’s position that the employer is entitled to 100% SIEF cost relief because the worker’s pre-existing diabetes and low blood sugar caused the accident or delayed the worker’s recovery.

The employer’s representative argued the worker losing consciousness and falling due to their blood sugar level is the most logical causation of the injury because a co-worker did not hear the worker fall or cry out for help, the worker’s hard hat stayed on, and the taping compound remained on the worker’s tool and did not splatter. They also argued the brain CT findings were consistent with a fall from a standing position, not a fall from 6ft high scaffolding.

To support their positions, the employer’s representative referenced a written witness statement from a co-worker, investigation notes following the accident, and medical reports from the paramedics and hospital. The employer’s representative also submitted a MedlinePlus article titled “Low blood sugar – self-care", which lists symptoms an individual may experience due to low blood sugar.

Assessment of Entitlement

I find entitlement to healthcare benefits is in order for head and upper back contusions and an acute subarachnoid hemorrhage.

It is the employer representative’s position that entitlement to benefits is not in order because the worker fell due to low blood sugar. Information on file does not support this position. For the reasons that follow, I find entitlement to healthcare benefits is in order for the injuries the worker sustained on May 14, 2020. When making my decision, I considered the policy that explains the criteria that must be satisfied to allow entitlement to benefits.

Policy 11-01-01 (Adjudicative Process) provides the five criteria an allowable claim must satisfy:

An employer
A worker
Personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history

There is no dispute that the first two criteria are satisfied. The Worker’s Report of Injury/Disease (Form 6) and the Employer’s Report of Injury/Disease (Form 7) on file confirm an employer-worker relationship existed when the accident occurred on May 14, 2020. There is also no dispute regarding proof that an accident occurred on this day. Instead, the employer’s representative has argued the worker’s injury was not work-related, and the medical findings were not compatible with the accident history as described. For these reasons, I will focus my analysis on the third and fifth criteria.

The third criterion looks to establish the worker had a personal injury resulting from an accident that happened because of the worker’s job (arising out of employment) while they were working (in the course of employment). Section 13(2) of the Act 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.

Briefly, this means that when a chance event accident results in an injury during the course of the worker’s employment, it is presumed the injury arose out of the employment unless the contrary is shown. In this case, the worker was in the course of their employment noting they were at a designated work location, on a scheduled shift, and performing their regular duties when the accident occurred. Noting this, it is presumed the worker’s injury arose out of their employment unless the contrary is shown.

The employer’s representative made multiple statements to support their argument that the worker’s injury did not arise out of their employment. They indicated the worker’s hard hat remained on, and the taping compound remained on the worker’s tool and did not splatter. The employer’s representative argued these details support the worker fell from a standing position, not from 6ft high scaffolding. However, these details do not confirm exactly how the worker fell, and even a fall from a standing position does not imply the fall and resulting injury did not arise out of the worker’s employment.

The employer’s representative stated the accident did not happen as described because a co-worker did not hear the worker fall or cry out for help. I considered the written witness (co-worker) statement on file dated May 15, 2020 and it appears the detail regarding the co-worker not hearing the worker fall was written in different handwriting. I am unable to place any weight on the written statement or the resulting argument from the employer’s representative because I cannot verify who added this detail to the written statement or when.

The employer’s representative also argued the injury is not work-related because the worker lost consciousness and fell due to low blood sugar. They noted medical records documented the worker’s blood sugar level was low at 3.0 upon arrival at the hospital and the paramedics gave the worker glucose paste shortly after the fall. Based on this, the employer’s representative stated it was more than likely that the worker’s blood sugar was below 3.0 when they fell. On their Form 6, the worker stated they fell at approximately 1:45 PM.

I understand medical reports on file confirm the worker has a history of type 1 diabetes, uses insulin, and was on a diabetic diet. The hospital triage report documents the worker’s blood sugar was 3.0 when the worker arrived at 3:06 PM. However, the paramedic report documented the worker’s blood sugar was 3.5 at 2:39 PM when they arrived at the scene of the accident, and 4.0 at 2:54 PM. The worker stated they fell due to stepping off the scaffold, their blood sugar level did not cause the fall, and they felt fine and normal despite the low blood sugar level. After giving the worker oral glucose, the paramedic documented the worker’s sugar increased slightly but the worker did not have any effects from their sugar being lower.

I also reviewed the submitted MedlinePlus article regarding low blood sugar, which lists symptoms an individual may experience due to low blood sugar. The article does not establish that every individual will experience any particular symptom(s) – including fainting, a seizure, or a coma – in every instance when their blood sugar is low. While this article indicates that low blood sugar could lead to a loss of consciousness, it does not provide evidence to support this happened to the worker and caused their fall on May 14, 2020.

Considering the above details, I am unable to accept the employer representative’s arguments that the worker’s injury did not arise out of their employment. The worker consistently reported the same mechanism of injury to the employer, the paramedics, hospital staff, and on their Form 6. Although medical reports confirm the worker’s blood sugar was low when the paramedics arrived and afterward, there is no evidence establishing the worker’s blood sugar level at the time of the fall. There is also no objective evidence to establish the accident did not happen as described, or that the worker’s diabetes and blood sugar level caused or contributed to the fall and resulting injury. For these reasons, I am satisfied the worker had a personal work-related injury that arose out of and in the course of their employment.

The fifth criterion considers whether the accepted accident history (mechanism of injury) as described could cause or result in the medical diagnoses on file. The employer’s representative argued the findings on the brain CT reports were consistent with a fall from standing height, not from a 6ft fall, considering the worker’s weight and the potential force of impact from a height of six feet. Information on file does not support this position. For the reasons that follow, I find the worker’s injuries are compatible with the accepted mechanism of injury.

Medical reports confirm the worker sustained injuries to their upper back and head/brain. The two CT scans of the worker’s brain on May 14, 2020, and the Form 8 on the same date, confirm the diagnosis of a subarachnoid hemorrhage. A fall from height onto one’s back while wearing a hard hat could reasonably cause bruising to the upper back and head as well as a brain hemorrhage. Additionally, medical professionals at the hospital who assessed the worker in person documented the worker’s injuries resulted from a fall from 6ft high scaffolding. There is no medical opinion questioning the compatibility between the accident as described and the resulting diagnosis. I accepted the medical opinions on file that the worker’s injuries were caused by, and are compatible with, the mechanism of injury as described by the worker.

In summary, I find all five criteria are satisfied. As such, in accordance with Policy 11-01-01 (Adjudicative Process), I find entitlement to healthcare benefits is in order for head and upper back contusions and an acute subarachnoid hemorrhage.

I find entitlement to full LOE benefits is in order for the period of May 15, 2020 to June 14, 2020 inclusive.

It is the employer representative’s position that entitlement to benefits is not in order. Information on file does not support this position. For the reasons that follow, I find entitlement to LOE benefits is in order from May 15, 2020 until the worker returned to regular duties without a wage loss on June 15, 2020. When making my decision, I considered the policy that explains when LOE benefits can be paid.

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

If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.

The employer provided a written offer of modified duties dated May 19, 2020. The duties included completing an inventory of tools, equipment, and materials, cutting and bending material as required, assisting co-workers, estimating future material orders, cleaning, painting, cutting grass, and installing insulation. The worker confirmed they received the offer of modified duties but stated they remained off work based on the doctor’s recommendations.

On May 14, 2020, the hospital doctor documented the worker was unable to perform any work due to their workplace injury. On May 22, 2020, the worker’s family doctor completed a Functional Abilities Form (FAF) indicating the worker remained physically unable to return to work due to their injury. In a follow-up report dated June 12, 2020, the family doctor confirmed the worker was able to return to full regular duties as of June 15, 2020. The worker confirmed they returned to regular duties and full-time hours with no wage loss beyond this date.

I find contemporaneous medical evidence supports the worker’s compensable injury prevented them from returning to any type of work from May 15, 2020 until June 14, 2020 inclusive. Multiple clinicians assessed the worker and concluded the worker could not work due to their injury noting medical evidence confirms the worker experienced a significant brain injury. There are no medical opinions on file during this time contradicting the clinicians’ recommendations for the worker to remain off work. I accepted the judgement from multiple clinicians that it was reasonable for the worker to stay off work for one month due to the nature and seriousness of the compensable injury.

Considering the above, I find I am able to establish the worker’s wage loss was a result of their work-related injury because medical evidence shows the nature and seriousness of the worker’s injury prevented them from performing any type of work for approximately one month after the accident. As such, I find entitlement to full LOE benefits is in order from May 15, 2020 to June 14, 2020 inclusive in accordance with Policy 18-03-02 (Payment and Reviewing LOE Benefits).

I find entitlement to SIEF cost relief is not in order.

It is the employer representative’s position that 100% SIEF cost relief is in order. Information on file does not support this position. For the reasons that follow, I find entitlement to SIEF cost relief is not in order. When making this decision, I considered the policy that dictates when, and how much, cost relief under the SIEF can be granted.

Policy 14-05-03 (SIEF) states in part:

If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.

Both physical and psychological disabilities are included.

The policy adds that when determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.

I find the severity of the accident to be moderate in nature.

When considering the severity of the accident, Policy 14-05-03 (SIEF) provides the following definitions:

Minor: expected to cause non-disabling or minor disabling injury

Moderate: expected to cause disabling injury

Major: expected to cause serious disability probable permanent disability

I reviewed the accepted mechanism of injury and found the accident was of moderate severity, which would be expected to cause a disabling injury to any individual. When making this determination I considered the mechanics, positioning and environment of the mechanism of injury.

The worker stated they were standing on a 6ft high scaffold when they stepped backwards, missed the platform and fell back onto the concrete floor. I find this describes a situation with an element of added peril noting the worker had no control of their body movement or placement as they fell. The mechanism of injury also includes a fall with the worker’s body weight adding to the force and impact of the worker’s back and head against the floor. Considering this, I find the mechanism of injury describes the presence of factors expected to cause a disabling injury to any individual, and I find the severity of the accident to be moderate in nature.

I find the period resulting from the accident was not prolonged or enhanced by a pre-existing condition.

When requesting SIEF cost relief on July 16, 2020, the employer argued the worker’s diabetes may have prevented the worker from recovering from their injury sooner. Information on file does not support this position.

Policy 14-05-03 (SIEF) states the medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. The policy defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident.

Medical reports confirm the worker has a history of type 1 diabetes and uses insulin for this condition. However, there is no information on file to show the worker’s pre-existing condition enhanced the worker’s injury or prolonged their recovery. The clinicians assessing the worker did not indicate the worker’s injury was unexpectedly severe or made worse by the presence of a pre-existing condition. Additionally, there are no medical reports or opinions identifying the worker’s pre-existing condition as a factor complicating or delaying their recovery. Considering the above, I find there is no evidence to demonstrate the worker’s pre-existing condition had any impact on the worker’s injury.

I find a prior disability did not cause or contribute to the compensable accident.

Policy 14-05-03 (SIEF) states that full (100%) relief of a claim’s cost (compensation, health care, permanent impairment) is charged to the SIEF when a prior non-work-related condition is the cause of the accident.

It is the employer representative’s position that 100% SIEF cost relief is in order because a prior non-work-related condition caused the accident. The employer’s representative argued the worker’s diabetes and low blood sugar level caused them to lose consciousness and fall. However, as discussed previously, there are no medical reports or opinions or other documentary evidence confirming the worker’s blood sugar level caused symptoms that in turn caused the fall and injury. In fact, the paramedics documented the worker did not have any effects from their low blood sugar level. As such, I find there is no evidence on file to establish the worker’s diabetes and blood sugar level caused or contributed to the fall and resulting injury.

In accordance with Policy 14-05-03 (SIEF), I find entitlement to SIEF cost relief is not in order because the workplace accident was of moderate severity and there is no evidence supporting the worker’s pre-existing condition enhanced the injury or prolonged the worker’s recovery. Additionally, there is no evidence to establish a prior disability or non-work-related condition (the worker’s diabetes) caused or contributed to the compensable accident.

CONCLUSION

I find:

Entitlement to healthcare benefits is in order for head and upper back contusions and an acute subarachnoid hemorrhage;
Entitlement to full LOE benefits is in order for the period of May 15, 2020 to June 14, 2020 inclusive;
Entitlement to SIEF cost relief is not in order.

The employer’s appeal is denied.

DATED February 4, 2022

Stephanie Waters

Appeals Resolution Officer

Appeals Services Division