APPEALS RESOLUTION OFFICER DECISION
decision number:
20220114
OBJECTING PARTY:
WORKER
REPRESENTED by:
worker representative
RESPONDENT:
EMPLOYER
HEARING:
HEARING IN WRITING
HEARD by:
Kelly Gordon, appeals resolution officer
ISSUE
The employer objects to the decision made by the Operating Area on February 6, 2019. Specifically, the employer objects to the allowance of initial entitlement in this claim.
PRELIMINARY ISSUE
This appeal was scheduled to be an In Person Hearing at the WSIB London Office on September 7, 2022, at 9:30 am. However, on September 7, 2022, at 8:45 am, the employer called and advised that their car broke down on the way, and they would not be able to attend the In Person Hearing. I spoke to the employer, and gave the options of having the hearing the same day by teleconference, having the hearing at a later date by teleconference or video, or having the employer and worker representative provide written submissions in place of an In Person Hearing. The employer advised they would like to provide written submissions. As the worker and their representative were already at the London office for the hearing, I advised them of the employer’s situation, and informed them the hearing would proceed with written submissions instead of oral testimony. The worker representative and the employer agreed they would both provide written submissions by September 21, 2022.
BACKGROUND
On February 5, 2019, this tow operator was winching a forklift onto the flatbed of their tow truck, when the forklift started to roll forward. The worker jumped into the forklift in an attempt to engage the emergency break. The forklift then rolled sideways off the truck, and fell eight (8) feet to the ground. The worker was in the forklift when it fell. 911 was called, and the worker was taken to the hospital by ambulance. The employer was notified of the accident the same day. As per the reports received to file from the emergency department at Hamilton Health Sciences, the worker was diagnosed with a left shoulder dislocation, fracture of the glenoid, and a grade 2 open fracture of the left elbow. The worker underwent left elbow surgery the same day.
In the decision dated February 6, 2019, the Operating Area allowed initial entitlement to the injuries sustained as a result of the February 5, 2019 workplace accident.
The employer submitted the Appeal Readiness Form (ARF) dated September 26, 2019, confirming their objection to the allowance of initial entitlement.
The employer’s objection to the allowance of initial entitlement forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process 15-02-01 Definition of an Accident 15-02-02 Accident in the Course of Employment 15-02-03 Pre-existing Conditions
November 3, 2008 October 12, 2004 October 12, 2004 November 3, 2014
ANALYSIS
For the reasons that follow, I find the worker does have initial entitlement to the February 5, 2019 workplace accident. In reaching this decision, I have carefully considered all of the available information on file, the employer’s submission, the worker representative’s submission, and the relevant operational policies.
Attached to the ARF, the employer provided submissions dated May 29, 2019 and May 30, 2019. In these submissions, the employer argues the worker was not in the course of their employment at the time of the accident. The employer states the accident occurred during a non-scheduled, non-dispatched call that the worker took on their own, and without the employer’s authority. The call for service did not come through official company channels, or the employer’s phone line. The employer was not aware of the worker taking the call, and the call was not taken during official company hours. The employer also argues the worker has a pre-existing left arm condition, and as such, the left arm injury is not solely a result of the workplace accident.
In place of oral testimony, the employer provided a written submission dated September 16, 2022. In this submission, the employer states that at the time of the accident, the worker was acting on their own while using equipment owned by the employer. As such, the worker was not performing work for the employer at the time of the accident. The employer states that although the employer’s dispatcher gave the client the worker’s phone number to confirm their arrival time, it is against company policy for the dispatcher to give out the worker’s number. The employer states the worker and all other drivers have always been instructed that if someone calls them for a job, the driver must have them call the office. The employer states there is no record of the client calling the office on the day of the accident. The employer goes on to provide multiple examples of incidents throughout the worker’s employment in which the employer found the worker to be dishonest. The employer is requesting this appeal overturn the allowance of initial entitlement in this claim as the employer argues the worker’s actions at the time of the accident were not in the course of their employment. To support their position, the employer included a letter from the client whose forklift was being towed at the time of the accident, and emails that discuss concerns with the worker’s prior jobs with the employer.
In place of oral testimony, the worker representative provided a submission dated September 21, 2022. In this submission, the representative refers to the Employer’s Report of Injury, the memorandums on file, and the correspondences submitted by the employer. The representative states that as per these documents, the employer initially argued the accident was a result of the worker’s neglect to use the proper chains to hold the forklift. The employer then argued the worker has a pre-existing condition, and the accident was a result of a non-scheduled and non-dispatched call. In November 2019, the employer argued entitlement should not be accepted due to issues not relevant to the allowance of initial entitlement. The representative states the relationship between the worker and the employer is strained, and there are no objective findings to support the employer’s arguments that initial entitlement should not be accepted. Instead, all facts and circumstances relating to the accident have been taken into account. The representative refers to Policy 15-02-02, and states the evidence supports the accident occurred in the course of the worker’s employment, as the accident occurred while the worker was engaged in the performance of their regular job duties. As the criteria outlined in Policy 11-01-01 and Policy 15-02-02 have been met, the representative argues the allowance of initial entitlement should be upheld in this appeal.
In my review of the information on file, I note the employer submitted two (2) Employer’s Report of Injury, Form 7s dated February 5, 2019. The first was submitted on February 5, 2019, and the revised Form 7 was submitted on February 8, 2019. On both forms, the employer confirms the worker’s regular hours of work are from 7:00 am to 4:00 pm. On the revised Form 7, the employer states that on February 5, 2019, at 8:29 am, the worker was winching a forklift onto the tilt bed of the tow truck. The worker noticed the forklift was rolling towards the cab, and the worker jumped onto the tilt bed, and into the forklift in order to put the emergency break on the forklift. However, the forklift slipped off the side of the tilt bed. The worker was taken to the hospital by ambulance, and a third party reported the accident to the employer. The employer lists a witness to the accident, and the employer states this witness is also an employee of the employer. Attached to the Form 7, the employer provided a written submission stating the worker is in their third employment term with the employer. As such, the worker has a great deal of experience. The employer states the accident is a direct result of the worker’s neglect in regards to the proper use of chains. The worker failed to chain the forklift to the tilt deck before they levelled the deck off. The worker admitted this to the employer. If the worker had chained the forklift down in conjunction with the winch prior to tilting the deck, the forklift would not have started to roll towards the cab, and the worker would not have had to jump the deck, and get in the forklift to engage the emergency brake.
The worker submitted the Worker’s Report of Injury, Form 6 dated February 7, 2019. On this form, the worker states they were using their tow truck to pick up a forklift weighing 15000 pounds. The worker put the forklift on the flatbed of the truck, but the forklift started rolling forward. The worker jumped on the forklift to try to engage the emergency break, but the forklift started to roll sideways off the truck. The forklift fell eight (8) feet to the ground with the worker in the forklift. 911 was called, and the worker was taken to the hospital by ambulance.
The emergency doctor at Hamilton Health Sciences completed a Health Professional’s Report of Injury, Form 8 dated February 8, 2019. The same accident description provided by the employer and the worker is noted on this form. The hospital emergency reports have also been submitted to file confirming the worker was diagnosed with a left olecranon (elbow) fracture, left anterior shoulder dislocation, and fracture of the anteroinferior glenoid. On February 5, 2019, the worker underwent surgery that involved a plate screw fixation of the olecranon and proximal ulnar.
As the issue before me in this appeal is initial entitlement, and noting the employer argues initial entitlement should not be accepted due to the worker’s pre-existing left arm condition, I find it significant to refer to Policy 15-02-03. As stated in this policy, entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment. Therefore, although the employer argues initial entitlement should be denied due to the worker’s pre-existing condition, Policy 15-02-03 confirms initial entitlement cannot be denied for this reason.
According to Policy 15-02-01, “Definition of an Accident”, an accident includes the following:
a willful 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
Policy 15-02-01 states 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. Based on the mechanism of injury described in this claim, I accept the worker’s injuries are a result of an identifiable, unintended event, which is defined as a chance event accident. While I note the employer argues the worker’s negligence caused the accident, there is no provision in the Workplace Safety and Insurance Act that bars a worker from entitlement due to the worker’s negligence. I also find there is no evidence to support the accident was a result of a willful and intentional act of the worker. For these reasons, I accept the definition of a chance event accident has been met.
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 find it significant to note that in the attachment to the Form 7, the employer provided a written submission confirming the worker is in their third employment term with the employer. Therefore, I find the criteria under Policy 11-01-01 regarding a worker and an employer have been met.
Personal work-related injury
I find the evidence supports the worker sustained a personal work-related injury on February 5, 2019.
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. In this case, the employer argues the worker was not in the course of employment at the time of the accident. Specifically, the employer argues that although the worker was using their equipment, the worker was working for themselves at the time of the accident. As such, the employer argues the criteria for activity has not been met.
Place
As per the description of the worker’s tow truck driving duties, I note the worker’s job involves travelling to different locations in order to tow machinery. On the morning of the accident, the worker drove their tow truck to a pick up location in order to transport a forklift on their truck. As this description is consistent with the worker’s regular job duties, I accept the criteria for place as outlined in Policy 15-02-02 has been met.
Time
In my review of the evidence on file, I note that as confirmed on the Employer’s Report of Injury, and the Worker’s Report of Injury, the accident occurred during the worker’s regular working hours. Specifically, the accident occurred at 8:29 am on February 5, 2019. On the form 7, the employer confirms the worker’s regular working hours are from 7:00 am to 4:00 pm. Therefore, I accept the evidence supports the criteria for time has been met.
Activity
In terms of activity, the employer argues the worker was performing work outside of their regular job duties at the time of the accident. Specifically, the employer argues the worker was working for themselves when the accident occurred. As such, the employer argues the worker’s activity does not meet the criteria under Policy 15-02-02, and as such, the worker was not in the course of their employment at the time of the accident.
I find it significant to refer to the employer’s submission dated September 16, 2022, in which the employer confirms the worker was using the employer’s equipment at the time of the accident. The employer also notes that at the time of the accident, the worker was towing a forklift for client J. Included with the employer’s submission is a correspondence from client J that states the following:
“Client J hired the employer to move a forklift from W to SC. The secretary contacted me to let me know that the driver was running a bit behind schedule, and that I should contact him directly to find out an estimated time of arrival. At that point, (the secretary) provided me with the worker’s cell phone number and said that I could contact him directly. I did not find this unusual as I was aware that many of my colleagues in the masonry business, who use the employer’s towing company to move their machines are also in direct contact with the worker as a means of scheduling pick up and deliveries.”
As per the employer’s September 16, 2022 submission, the employer confirms that although it is against their policy, their dispatcher did give client J the worker’s cell number in order to check on the estimated time of arrival on the day of the accident. While I note the employer argues there is no record of client J in their records, I find it significant that the employer confirms their dispatcher did receive a call from client J on the day of accident. I accept this supports the worker was not in contact with client J prior to the call that client J made to the employer’s office on February 5, 2019. Specifically, I find that if the worker was working on their own, and in contact with client J (as per the employer’s argument), client J would not have had to call the employer to obtain the worker’s cell number. However, as per the employer’s submission, the employer confirmed client J did call the employer’s office, and spoke to the dispatcher who gave client J the worker’s number on the day of the accident.
I also find it significant to note that on the Employer’s Report of Injury, the employer provides the name of a witness to the accident. The employer states that this witness is an employee of the employer. As such, I find this is also evidence that supports the worker was performing their regular job duties for the employer at the time of the accident, as there was a co-worker who was with the worker at the time of the accident.
While I have considered the employer’s argument, I find the evidence supports the worker was performing a work-related activity for the employer at the time of the accident. The worker was using the employer’s equipment, and performing activities consistent with their regular job duties. The information provided by client J confirms that they contacted the employer’s office, and spoke to the dispatcher in order to obtain the worker’s estimated time of arrival. The employer confirms client J did call the employer’s office, and they were provided with the worker’s cell number on the day of the accident. I find no objective evidence on file to support the employer’s argument that the worker was not working for the employer at the time of the accident.
For the reasons stated above, I find the evidence supports the worker was performing their regular job duties for the employer at the time of the accident. Therefore, I find the activity criteria as outlined in Policy 15-02-02 has been met.
In summary, I accept the evidence supports a personal work-related 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. To establish this, proof of accident and compatibility must be determined.
Proof of accident
I find proof of accident has been established in this claim.
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 per the evidence provided by the worker and the employer, the accident occurred on
February 5, 2019. When the worker fell, they suffered immediate pain, and the worker was taken to the hospital by ambulance. The worker was treated in the hospital emergency department, and underwent left elbow surgery the same day. As the worker was hospitalized, a third party reported the accident to the employer the same day. Although not contacted, on the Form 7, the employer indicates a co-worker was a witness to the accident.
Based on the evidence, I find proof of accident has been established. In making this determination, I note the accident was reported to the employer on the day of the accident, and the worker was taken by ambulance to the hospital immediately following the accident. On the Employer’s Report of Injury, the employer also includes the name of a witness to the accident. In my review of the evidence, I find no discrepancies in terms of the date of the accident, and I find no delays in the onset of symptoms, reporting of the accident, or when medical attention was sought. I also find the employer has made no argument in terms of proof of accident not being established. For these reasons, I accept proof of accident has been established.
Compatibility
I find compatibility has been established in this claim.
As per the mechanism of injury described by the employer and the worker, the worker sustained multiple injuries when the forklift that the worker was in fell eight (8) feet off the tow truck and landing on the ground. As per the reports from the emergency department at Hamilton Health Sciences, the worker was diagnosed with a left shoulder dislocation, fracture of the glenoid, and a grade two (2) open fracture of the left elbow. The worker underwent left elbow surgery the same day.
Based on the mechanism of injury described and the diagnoses provided, I find compatibility has been established. I find that it is reasonable to expect multiple injuries from an eight (8) foot fall while in a forklift. Specifically, I find the mechanism of injury accepted is compatible with the diagnosed left shoulder dislocation, fracture of the glenoid, and a grade two (2) open fracture of the left elbow.
In summary, I accept the evidence does support all policy criteria as outlined in Policies 11-01-01,
15-02-01, and 15-02-02, have been met.
For the reasons stated above, I find the worker does have initial entitlement to the left elbow and left shoulder injuries sustained.
CONCLUSION
I find the worker does have initial entitlement to the injuries sustained as a result of the February 5, 2019 workplace accident.
The employer’s objection is denied.
DATED September 27, 2022
Appeals Resolution Officer
Appeals Services Division