Worker v. Employer, 2022 CanLII 44784

decision number:

20220041

OBJECTING PARTY:

RESPONDENT:

HEARING:

HEARD by: Kelly Gordon, appeals resolution officer

Dated: April 22, 2022

ISSUE

The worker is objecting to the Case Manager’s (CM) reconsideration decision dated November 5, 2021. In this reconsideration decision, the CM overturned the October 19, 2021 decision that allowed initial entitlement to a left arm sprain/strain.

BACKGROUND

On September 10, 2021, this worker was unloading and carrying metal sheets with a co-worker. When they lowered the sheets to the ground, the worker released their right arm from holding the sheets, but before releasing their left arm, they heard a “pop, pop, pop” in their left arm. The worker reported the accident, and sought medical attention at the hospital the same day. The worker lost time from work as of September 11, 2021. On October 19, 2021, entitlement was accepted in this claim for health care and loss of earning (LOE) benefits. At the time of this decision, no medical reports had been received.

Following the allowance of entitlement, hospital medical reports pertaining to the worker’s left arm injury were received to file. As stated in these reports, the worker advised the treating doctors that their left arm injury occurred while they were at home and not at work.

After reviewing the medical evidence, the CM reconsidered the allowance of entitlement accepted in this claim. As per the reconsideration decision dated November 5, 2021, the CM states they are unable to establish a personal work-related injury and proof of accident as the medical evidence did not support a workplace injury. Therefore, the CM overturned the October 19, 2021 decision, and the CM denied entitlement to a left arm injury in this claim. In the same decision, the CM confirms LOE benefits will be stopped as of November 5, 2021. Although the CM considered the new information the worker submitted for review, the CM upheld the denial of entitlement in the reconsideration decision dated November 26, 2021.

The worker submitted the Appeal Readiness Form (ARF) dated December 30, 2021, confirming their objection to the denial of initial entitlement for a left arm injury.

The worker’s objection to the denial of initial entitlement for a left arm injury forms the basis of this appeal.

AUTHORITY

Workplace Safety and Insurance Act (WSIA) Section 13 (1) (2)

Operational Policy Manual	Published
11-01-01 Adjudicative Process	November 3, 2008
15-02-01 Definition of an Accident	October 12, 2004
15-02-02 Accident in the Course of Employment	October 12, 2004

ANALYSIS

For the reasons that follow, I find the worker does have initial entitlement to a left biceps tear. In reaching this decision, I have carefully considered all of the available information on file, the worker’s submission, and the relevant operational policies.

On the ARF dated December 30, 2021, the worker provided a submission for my consideration. As per this submission, the worker states that in a misguided attempt to protect their job, and not knowing the severity of their injury, the worker lied to the emergency doctor by saying the injury occurred at home. However, the worker states they told their surgeon the truth that the injury occurred at work, and the surgeon has provided a report stating there is clear evidence that this is a workplace injury. The worker states their co-worker is a witness to their left arm injury, and the worker reported the injury to their employer immediately after the accident. The employer has also provided evidence to support this is a workplace injury. For these reasons, the worker is requesting initial entitlement be accepted for the left arm injury.

The employer has not submitted the Respondent Form, and no submissions have been provided for my review.

In reviewing the evidence on file, I note the employer submitted the Employer’s Report of Injury, Form 7 dated October 18, 2021. On this form, the employer states that on September 10, 2021 at 11:30am, the worker reported a workplace injury. The worker reported that at 11:00am the same day, they were carrying metal sheets with a co-worker, and they slowly lowered the sheets to the ground. The worker released their right arm from the sheets, but was still holding onto the sheets with their left arm when they heard a “pop, pop, pop”. The worker looked down at their arm to see the injury. On this form, the employer provides the name of the co-worker who witnessed the accident.

As per the memorandum on file dated November 18, 2021, the CM contacted the employer and advised that entitlement in this claim has been overturned as the medical evidence did not support a workplace injury. The employer stated they believe the worker did injure them self at work, and advised there was a witness to the accident. The employer also confirmed the worker reported the accident to them on the day of accident.

The worker submitted the Worker’s Report of Injury, Form 6 dated October 22, 2021. On this form, the worker states they suffered a left arm injury while working on September 10, 2021, at 11:00am. The worker states they were working with a co-worker unloading and carrying roof panels that were piled in the back of a truck. They pulled the panels out, and the co-worker put their end down on the ground first.

As the worker put their end down, their left arm started “popping”. The worker then had to drop the sheets on the ground, as they could no longer hold them. The worker and the co-worker then looked at the worker’s left arm, and compared the worker’s biceps. This made them think the worker’s left arm tendons were torn. The worker reported the accident and injury to their employer at 11:30am, and the worker left work early to go to the hospital. The worker underwent a left arm MRI that confirmed a left biceps tear, and the doctor put the worker’s left arm in a sling.

As per the memorandum dated November 5, 2021, the worker and the employer confirmed the co-worker was a witness to the accident. As such, the CM contacted the co-worker who advised they were working with the worker at the time of the accident, and the witness confirmed the mechanism of injury as reported by the worker.

The reports from the hospital are on file confirming the worker’s visit on September 10, 2021. As per the emergency report, the worker advised the treating physician that they were doing heavy lifting, and suddenly heard a pop, and felt immediate left elbow pain. The worker reported they were lifting something at home at the time of the injury. After undergoing diagnostic testing, the worker was diagnosed with a partial tear of the biceps tendon.

I find it significant to refer to the hospital triage report in which the worker advised they tried to lift something heavy with their left arm a couple hours prior to being seen in triage on the same day. The worker reported that at the time of injury, they heard a pop, and they were then unable to raise their left arm. As per the hospital reports, the worker was seen in triage on September 10, 2021 at 14:24. This is approximately three (3) hours after the injury. The emergency report also confirms the left arm injury occurred hours before being seen at the hospital the same day.

The worker was referred to Dr. Catre, orthopaedic surgeon who submitted a consultation report dated September 30, 2021. Dr. Catre states the worker reported the left elbow injury occurred while curling some weights at home. The worker felt popping and sought medical attention at the hospital emergency room the same day. Dr. Cartre provides the opinion that the worker now has a complete bicep tendon tear, and surgery is recommended.

Initial Entitlement

In reviewing entitlement in this claim, I refer to Policy 15-02-01, “Definition of an Accident”, that states 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 work duties. In this case, the worker is claiming a left elbow injury that resulted from performing their regular job duties on September 10, 2021. As the worker is claiming a specific incident caused the injury, I find the evidence supports a disablement type accident due to an unexpected result of work duties.

As per WSIA section 13 (1) (2), the presumption clause does not apply when determining entitlement in disablement cases. Consequently, the onus is on the worker to demonstrate the injury occurred during the course of the employment and arose out of the employment. It is not sufficient to establish a possible relationship with the workplace activities. The evidence must support, on the balance of probabilities, that the work duties made a significant contribution to the development of the injury.

Policy 11-01-01 states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident, and compatibility of the diagnosis to the accident or disablement injury. For the reasons that follow, I find all criteria in Policy 11-01-01 have been met.

Worker and Employer

I have reviewed the Worker’s Report of Injury and the Employer’s Report of Injury, and I accept the evidence supports there is a worker and an employer in this claim. I also note that neither the employer, nor the worker object to the determination that there is a worker and an employer. I find the criteria under Policy 11-01-01 regarding a worker and an employer has been met.

Policy 15-02-02 states that a personal injury by accident occurs in the course of employment if the place, time, and activity indicate that the accident is work-related. The importance of the three (3) criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker.

In this case, the worker is claiming the accident occurred while performing their regular job duties at their assigned place of work, and during their regular working hours. The employer has submitted the Employer’s Report of Injury, Form 7 confirming the worker immediately reported the accident, and the employer states that at the time of accident, the worker was performing their assigned duties, during their regular hours of work at their assigned work location. Specifically, the employer and the worker confirm the accident occurred at 11:00am on September 10, 2021, while lifting sheets of metal off a truck. A co-worker who was witness to the accident supports the worker’s description of accident. This witness confirmed the accident occurred while the worker was performing their regular job duties, at 11:00am at their assigned place of work.

While I note the medical information on file indicates the worker advised the treating physicians that the accident occurred while at home, I accept the worker’s statement that they told this to the treating physicians, as they were worried about the security of their job. In making this determination, I have placed significant weight on the employer’s report that indicates the accident occurred at 11:00am and the worker reported the accident at 11:30am. A co-worker who witnessed the accident supports this. I also find it significant that when seen in the hospital emergency room at 2:24pm, the worker reported the left arm injury occurred approximately two (2) hours before being seen. Therefore, I find the time of the accident, and the timing as provided in the hospital reports are consistent, and support the accident occurred at work as reported by the worker and the employer.

For the reasons stated above, I find the criteria for place, time, and activity have been met. As such, I find the worker’s injury occurred in the course of the worker’s employment.

While I accept the injury occurred in the course of employment, the evidence must also support the accident arose out of the employment. The requirement for an accident to arise out of employment refers to the need to show a causal connection between the injury and the employment. Therefore, proof of accident and compatibility must be established.

Proof of accident

For the following reasons, I find proof of accident has been established.

Policy 11-01-01 allows decision-makers to consider the following when examining proof of accident:

Does a disablement situation exist?
Are there any witnesses?
Are there any discrepancies in the date of accident/disablement and the start of lost time?
Was there any delay in the onset of symptoms or in seeking medical attention?

As noted above, the worker reported the accident to the employer approximately a half hour after the accident occurred, and a co-worker provided a statement to the CM confirming they witnessed the accident as described by the worker. The worker experienced an immediate onset of pain, and left work early in order to seek medical attention a few hours after reporting the accident. The worker started to lose time from work as of September 11, 2021. While I note the initial medical reports submitted to file indicate the worker reported the accident occurred at home, I accept the worker’s statement that they reported this as they were worried about job security. I also find the time of the reported workplace accident is consistent with the time of accident as noted in the medical reports. For these reasons, I find the balance of evidence supports the injury occurred at work, and I accept proof of accident has been established.

Compatibility

The worker is relating their left elbow injury to lifting heavy sheets of metal with a co-worker. The worker states they experienced a popping and immediate left arm pain while lowering the sheets of metal to the ground. The information on file indicates the weight of the sheet metal is approximately 60 to 70 pounds, and two (2) people are required to lift the metal. At the time of the injury, the co-worker had placed their side of the metal on the ground. Therefore, the worker was holding the sheet metal on their own at the time of the injury. As per the medical evidence, the worker was initially diagnosed with a left biceps partial tear, and when seen by the orthopaedic surgeon on September 30, 2021, a complete tear was diagnosed.

Noting the heavy lifting involved at the time of the accident, I find the diagnosed left biceps tear is compatible with the mechanism of injury being claimed.

In summary, I accept the worker’s left biceps tear arose out of and in the course of employment. I find all criteria to allow entitlement under Policy 11-01-01, 15-02-01 and 15-02-02 have been met. Therefore, I find the worker does have entitlement to the left biceps tear in this claim.

CONCLUSION

I find the worker does have initial entitlement to the left biceps tear.

The worker’s objection is allowed.

I ask the operating area to determine entitlement to benefits flowing from this decision.

DATED April 22, 2022

Kelly Gordon Appeals Resolution Officer Appeals Services Division