APPEALS RESOLUTION OFFICER DECISION
decision number:
20220111
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
VIDEOCONFERENCE – June 14, 2022
HEARD by:
N. mazza, appeals resolution officer
ADDITIONAL ATTENDEES:
interpreter
Witness 1
Witness 2
ISSUE
The worker is objecting to the eligibility adjudicator’s decision of January 21, 2020 that denied initial entitlement for a left leg injury.
BACKGROUND
On September 24, 2019, this now mid forty years old roofer, reports attending the employer’s yard to pick up a kettle for a job assignment. The kettle was hooked up to the vehicle using two chains and one of the chains was overstretched. The driver attempted to reverse the vehicle to give the chain some slack; however, accidently placed the vehicle in drive, causing the kettle to move closer to an adjacent kettle. As a result, the worker reports their left knee and lower leg were crushed between two kettles.
The worker claims to have reported the incident to the driver, who informed the employer of the accident that same day. The worker was unable to complete their shift and stopped working.
The worker reports resuming regular duties on approximately September 30, 2019, but experienced difficulties coping and continued to miss sporadic time from work. On October 7, 2019, the worker sought medical attention at a walk-in clinic and advised the employer.
A Health Professional’s Report (Form 8) dated November 13, 2019, documents a “vehicle accident” causing a left knee contusion. X-rays were ordered and the worker remained capable of resuming modified work.
An Employer’s Report of Injury (Form 7) was completed on January 21, 2020 indicating the employer was unaware of an injury.
The decision dated January 21, 2020, denied initial entitlement for a left leg injury, as there was insufficient evidence to support that a personal injury arose out of the course of employment. It was noted that witnesses were contacted but were unable to corroborate the worker’s report of injury.
On July 14, 2020 the worker objected to the initial entitlement decision. A signed affidavit from a witness was provided, explaining their account of what happened on September 24, 2019. Also, translated text messages from colleagues were submitted. Finally, a copy of a receipt for medical treatment, with a noted referral from the employer was submitted as additional evidence.
On July 24, 2020, the decision was reconsidered and upheld. The decision explained after reviewing the new information, there remained insufficient evidence to establish proof of a work-related accident.
AUTHORITY
Section 13(2) Workplace Safety and Insurance Act (WSIA)
Operational Policy Manual
Published
11-01-01 Adjudicative Process
November 3, 2008
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is entitled to benefits for a left knee injury.
Worker’s Position
The submission dated August 31, 2020, states the case should be allowed and argued that proof of accident has been established. To support their argument, the representative noted the following:
Text messages between co-workers offers evidence to support proof of accident. Contrary to their statements to the WSIB, the text messages corroborate that the worker’s colleagues were aware of the injury.
A witness completed a sworn affidavit, confirming they were in the adjacent yard on the date of accident. The witness recalled hearing a man yelling and witnessed, what they would later realize to be the worker, with their left pant leg rolled up.
Pay documentation in the period following the accident demonstrates that the worker was absent following the accident, as evidenced by their reduced pay.
Witness 2 referred the worker to a chiropractor and paid for the worker’s treatment.
Combined, it is argued that the above notes support that there was immediate reporting, pain and layoff from work.
The representative further argues that the balance of criteria under WSIB policy 11-01-01, Adjudicative Process, has been met. To support their argument, the representative noted the following:
The MRI findings are consistent with a serious injury to the left knee. Only a severe accident, such as a crush injury, could explain the findings. It is argued that the diagnosis is compatible with the accident history.
The worker’s status with the employer was that of a “employer-employee relationship”, as there was a “contract of service”, between both parties, as defined in WSIB policy 12-02-01, Workers and Independent Operators.
Finally, the representative questions the employer’s veracity. The representative highlights that the worker was “undocumented” and alleges that other employees were of the same status. The representative argues that the employer may have been seeking to avoid the possible repercussions of hiring “undocumented” workers.
Employer’s Position
The employer’s representative argued that a work-related accident or injury was not reported. It was not until November 2019, that the employer became aware of an alleged accident at work. The employer argues that the witnesses identified did not corroborate the worker’s claim of injury, therefore, the company did not file a report of injury with the WSIB. They employer objects to entitlement in this case noting there is no evidence to support a work-related accident occurred.
Testimony from worker
The worker testified that they began their employment with the employer in approximately March or May of 2018. The worker learned of the employer through the previous employer. The former employer sold their company and began working for the current employer, taking the worker along with them, as well as the worker’s son. The worker was employed as a roofer with the new employer and a new foreman.
The worker testified they were remunerated weekly, by cheque with source deductions and WSIB dues removed. The worker was paid under their personal company, which was a requirement of the employer. The worker registered their company with the aid of the foreman. The worker was told, given their circumstance as an undocumented worker, they would only be eligible to receive up to $30 000 in wages under this company and then would need to register a new one.
On September 24, 2019, the worker was picked up by the driver in the company vehicle at 7:00am. It was noted that the driver generally drives the worker to and from work each day. They proceeded to the employer’s yard to collect material for work. They arrived at approximately 9:00am then proceeded to a second yard to retrieve a roofing kettle. The worker testified that there were two kettles beside each other, which required manoeuvring to remove. The kettle chains were attached to the work vehicle, which was being operated by the driver. One chain was overstretched; therefore, the driver was told to reverse the vehicle to create some slack. Instead of reversing, the driver drove forward, causing one of the kettles to move forward as well. The worker’s left leg ended up between the two kettles, at the section where the tires protrude. The worker recalled screaming in pain. The accident occurred between 10:00am and 11:00am. The worker explained this was witnessed by their crew which included the driver, foreman, and the two Mexican workers.
After the accident, the driver drove the worker to a pharmacy, where Advil and Voltaren were purchased. The worker noted they did not seek out treatment at a hospital or a clinic, because of their undocumented status.
The worker testified that they remained off work for the balance of the week. The worker then attempted 2-3 days at work, but could not tolerate work and went off. The worker tried to resume work again thereafter and was paid for the hours they worked. While off, they managed their pain with medication and alcohol. The worker described that their leg was very swollen, painful and there was difficulty standing. On October 7, 2019, the worker visited a walk-in clinic and was provided with additional medication and a referral for x-rays.
For the month of October 2019, the worker confirms they did attempt work. The foreman provided the worker with light duties and additional assistance was provided by the worker’s colleagues. The worker reports that the crew was aware of the ongoing status of their left knee during this period. The worker testified that the colleagues would have viewed their swollen left leg, as they often changed clothing on site. Further, the crew would check in to see how the worker was feeling and if they were attending work/needed to be picked up.
Around the last week of October 2019, they could no longer tolerate work and went to the office to speak with the employer. The worker spoke with the office administrator, the owner and the owner’s son. The worker testified that a conversation took place and the accident was reported. The worker explained that the owner’s son asked what the worker wanted the employer to do about it. The worker explained that someone needed to take responsibility for their injury. The worker reports that the office administrator advised the worker should be paid for the crew’s hours, until they get better. The worker noted that the owner’s agreed that they could pay the worker for the week, but that this could not go on forever. The worker reports receiving a full weeks pay, but that the last cheque received from the employer was for the period ending in the first week of November 2019.
The worker testified that they did not have any further discussions with the employer until they were in contact with the co-owner of the business in early November. The worker testified Witness 2 called the worker and explained their awareness of what happened. While in conversation it was noted that they were from neighbouring towns in Portugal and Witness 2 did not want to leave someone from the same region with problems. The worker testified Witness 2 offered to send the worker to a doctor who could treat their knee it would be paid for. The worker reports attending treatment with Dr. Moreira in early November and confirms the treatment was paid for by Witness 2.
The worker testified that they did seek treatment with Dr. Moreira in early November 2019. The worker advised Dr. Moreira that their injury was work-related and Dr. Moreira explained Witness 2 had advised them of this as well. The worker confirmed attending two appointments and then stopped due to the coordination of other medical assessments at that point.
The worker was questioned about a second accident as documented under the eligibility adjudicator memo dated July 22, 2020. The worker agreed that since the accident, they had two falls. One was prior to attending a session with Dr. Moreira, the other was close to home. On each occasion, the worker reports their left knee gave out causing them to fall.
The worker reports eventually completing an MRI for their left knee and was advised they required surgery. The worker completed two surgeries and was unable to attend treatment due to COVID 19 related clinic closures. The worker reports that the condition of their left knee remains swollen, painful and there is ongoing difficulty ambulating. The worker is now employed in landscaping, but misses several days due to their ongoing, injury-related difficulties.
Testimony from Witness 1
The witness testified that they did not know the worker prior to their introduction in November 2019. The witness was introduced to the worker through their nephew. The witness learned of the worker’s accident and agreed to offer them support. The witness connected the worker with their representative that same day, offered transportation to and from medical appointments, and financial support.
The witness further testified they attended the employer’s yard, where the accident happened. The witness reports speaking with the owner of the yard. The witness advised the owner of the accident from September 2019. The witness testified that they were then connected with the yard’s grounds keeper who recalled the date of accident because the driver of the employer’s vehicle was reprimanded for speeding in the yard; however, they did not witness an accident.
The witness testified that they knew someone else “around there” who had a yard. This witness was advised who the person was and went to speak with them.
The witness told this person about the worker’s accident and they recalled the date of accident. This person advised the witness that two things occurred on that date. The first was that that the driver of the employer’s vehicle was reprimanded by the grounds keeper for the way they had entered the yard. Secondly, this person recalled, a few hours later, someone was screaming. The witness testified that this person explained that they saw someone in the employer’s yard with their pant rolled up and was screaming about what had happened. The witness stated, realizing later on that the person yelling was the worker. The witness noted by the time they spoke with this person, they no longer were a tenant of the adjacent yard.
Testimony from Witness 2,
This witness confirmed they are a signing officer of the business since 1989 and are primarily responsible for the administrative functions including the handling of WSIB matters. The witness testified that there is an internal policy for reporting work-related accidents. The process generally begins when the worker reports an injury or incident to a foreman or the employer directly.
The witness confirmed that on September 24, 2019, they were away and returned towards the end of October 2019. The witness testified, upon their return, they were not notified of an accident.
The witness testified that they first spoke with the worker during the week of November 2019. The witness reports the office administrator advised that the worker was previously in the office seeking an advancement, due to rent issues. A work-related injury was not reported. The office administrator mentioned this to the witness who then looked into the matter.
On November 8, 2019, the witness called the worker and asked what was going on. The worker reported needing rent money. The worker reported having a leg injury, but did not report it was work-related. The worker reported to the witness that x-rays had been completed to date and nothing showed up. The witness then suggested that the worker’s issue may be tendon related and recommended the worker see Dr. Moreira. The worker was agreeable but noted they did not have money to pay for treatment. The witness testified that they would pay for the worker’s treatment as a good will gesture.
The witness confirmed that they called the office of Dr. Moreira and spoke with the secretary. The witness explained their friend had a leg injury and required treatment. The secretary booked an appointment for the worker. The witness confirmed they did not speak with Dr. Moreira at that time.
On November 11, 2019, the witness provided the worker with the address of Dr. Moreira and their appointment time. That evening, the worker called the witness upset. It was explained that following their appointment, the worker ran to catch the streetcar and fell, sustaining injuries. The worker told the witness that they returned to Dr. Moreira’s office and were sent home in a taxi which cost $30. The witness testified that the worker was upset and advised that they needed to take care of this.
The following day, the witness called Dr. Moreira’s secretary who confirmed the worker returned to their office injured after the appointment. The receptionist noted that Dr. Moreira wanted to speak with the witness. The witness testified that the doctor advised that they were no longer willing to treat the worker. The worker attended the office sobbing in the lobby and escalated their behaviour. The worker was described as being intoxicated and it was noted that this would not be tolerated. Dr. Moreira told the witness that an ultrasound was ordered for the worker and that billing would need to be arranged, but they were no longer willing to treat the worker. The witness agreed to pay for the bill. The witness confirmed this was the only time they had discussed the worker’s situation with Dr. Moreira and did not advise that their treatment was related to a workplace accident.
The witness reports that evening, the worker called and again and it was noted that their demeanour had changed. The witness testified that it appeared as though the worker was being coached during their call. The worker requested $60 per day for taxi. The worker further apologized to the witness for what they were about to do to the company, as the witness had been nice to the worker. The witness reports this was the last time they spoke.
The witness maintained that the worker had not reported a work-related accident to them or any other staff. They were aware of a leg injury but the worker had not reported that this injury resulted from work. The employer first learned that the injury was being claimed as work-related when they received notification of the worker’s report through the WSIB. The witness noted it is in the interest of the employer to report everything, whether an incident or an accident.
The witness was questioned if it was possible that any of the staff may have failed to make the employer aware of a work-related accident. The witness noted this is not believed to be the case. They maintained that upon their return, the employer’s staff were not made aware of a report of injury.
Review of Evidence
A Walk-in Clinic receipt dated October 7, 2019, documents a visit fee of $60.00. No records are provided.
Pharmacy receipts from October 7, 2019 and November 13, 2018 acknowledge a prescription for Naproxen and Pantoprazole Magnesium.
A Walk-in Clinic receipt dated October 16, 2019, documents a visit fee of $60.00. No records are provided.
The x-ray report for the left knee dated October 17, 2019, documents no findings.
The Patient Introduction Form dated November 11, 2019, by Dr. Moreira, notes the worker was referred to the clinic by Witness 1, for treatment of their left leg. The note indicates that the worker’s left knee became “smashed” between two metal bars. The leg became contused and imaging produced no findings. Pain was noted.
The Form 8 dated November 13, 2019, by Dr. Hong, documents an accident date of September 19, 2019. The accident history provided is “vehicle accident”, and confirms a “crush injury”. The diagnosis is for a left knee contusion. It was noted the worker is using a cane to ambulate.
The revised Form 8 dated November 21, 2019, documents the accident date of September 24, 2019 with a revised accident history of “crush between 2 roofing kettles.” The diagnosis remains a knee contusion.
The Worker’s Report of Injury (Form 6) documents a left lower extremity injury, which occurred on September 24, 2019 at 8:00am. The incident was reported on the same day to the driver who informed the co-owner. The report notes that the driver and two other co-workers witnessed the event. The form documents that initial medical attention was sought on October 7, 2019 at a walk-in clinic. The form indicates that the worker reported that medical attention was sought that same day to the co-owner. Medical attention was sought again on November 13, 2019. Lost time was reported as sporadic from September 24, 2019 to September 30, 2019.
The x-ray report for the left knee dated December 6, 2019, documents no findings.
The ultrasound report for the left knee dated December 10, 2019, documents mild effusion, a cyst, an irregular meniscus consistent with a post-traumatic tear, and fluid with edema and bulging of the medial collateral ligament.
The x-ray report for the left knee, dated January 15, 2020, documents no findings.
The Bill 119 Coverage Response memo dated January 16, 2020 identified the worker as a worker of the employer.
The MRI report for the left knee, dated January 18, 2020, documents a horizontal tear within the posterior horn of the meniscus, a suspected meniscal tear, non-displaced subchondral fracture, bone contusions
The EA’s memo dated January 20, 2020, documents phone calls placed to the witnesses listed on the Form 6. The foreman claimed an accident did not occur while they were present. The driver indicates they were not the driver on that date and cannot confirm any incident took place. A “kettle man” indicated they were not working on that day and cannot confirm an accident took place.
A sworn affidavit from a witness, dated July 14, 2020, states they rent the storage yard next to the employer. On September 24, 2019, they recall seeing the employer’s truck enter the yard, speeding, causing a considerable amount of dust. They witnessed the assistant to the landlord approach the vehicle and gave the driver a warning to slow down. They witnessed four employees in the employer’s yard, which is within eyesight, separated by a chain-link fence. Sometime later, the witness heard a man screaming loudly. The witness came out and saw a man with their pant leg rolled up, screaming in pain, who they “later” confirmed to be the worker.
The July 15, 2020 submission from the worker’s representative contains two photos. The photos are from a witness from an adjacent yard. The primary photo is taken from the witnesses’ yard, directed towards the employer’s yard. The second photo is a zoomed in version of the first, depicting a fenced off section, presumably of the employer’s yard.
The worker representative’s correspondence dated July 22, 2020 translates text messages between the worker and co-workers are summarized as follows:
- Message transaction with “The Driver Work”
o September 25, 2019: the worker is asked if they are attending work. The worker responds they are not.
o October 8, 2019: the worker is asked how their leg is. The worker responds that it hurts when the medication wears off. The worker comments they will rest for another day and reassess returning to work.
- Message transaction with “Mexican Roofer”
o September 24, 2019: The worker is asked how everything is. The worker responds their leg is swollen and in pain. “Mexican Roofer” advises they will visit the following day if they are not working and bring the worker medication. The worker give thanks. The “Mexican Roofer” wishes the worker well and welcomes a call if they need anything.
o September 25, 2019: The worker is asked how everything is. The worker responds, a bit better.
- Message transaction with “The Driver”
o October 6, 2019: the driver asks how the worker’s leg is. The worker asks to speak with the drver
o January 24, 2020: The worker advises it was their understanding that the driver reported the accident to the owner on the day of accident. The worker advised that [the employer] said the driver did not report anything. The worker asks that the driver please take care of this.
o “Sunday”: a visual of a leg is sent. The worker notes, “to console you”, and states one day we will “see” again.
The eligibility adjudicator memo dated July 22, 2020 documents conversations with various parties:
July 23, 2020 discussion with Witness 2: the witness confirms that they paid for two of the worker’s chiropractic treatments. It was noted to be a favour out of compassion, because the worker did not have the funds and they were having difficulty walking. It was noted that this is occasionally done for workers. Witness 2 denied any knowledge of an accident while working with them. The witness indicates that the chiropractor advised that the worker was intoxicated and fell while running to catch the bus. Witness first reports that they were notified of an accident through WSIB. The report they were out of the country until October 5, 2019 and learned about an injury in November 2019. The worker called, demanding to be paid for taxi transportation and $60.00 per day, or the witness would be paying. Witness 2 explained they felt threatened.
July 23, 2020 discussion with Dr. Moreira: It was confirmed that the worker was referred to the clinic by Witness 2. The worker was first treated on November 11, 2019. It was understood the worker’s left knee was smashed or caught between two metal bars. The leg was swollen, however, the imaging did not detect any findings. The worker demonstrated issues weight bearing. The worker was presumed to be intoxicated because they had been slurring their words. When asked, the worker confirmed they had been drinking. Dr. Moreira understood that the injury was work-related. On November 12, 2019, the worker returned and was worse and appeared to be intoxicated. The worker reported slipping in front of the pharmacy and that was why they were worse. The worker appeared to be in excruciating pain. The worker was noted to be crying throughout the assessment and a discussion occurred around pressing charges against the pharmacy. The worker noted they were going for an x-ray and did not return for further treatment.
Assessment of Evidence
The WSIB Operational policy 11-01-01, Adjudicative Process, outlines the criteria decision makers use when rendering a decision on initial entitlement to benefits. The policy explains in part:
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 this case, there is no dispute that there is a worker and an employer. The worker reports that their injury arose out of and in the course of employment on September 24, 2019, when their left leg was crushed between two roofing kettles in the employer’s yard. However, the employer argues that the worker did not report an accident or a work-related injury. As such, I turn to the evidence provided to examine whether proof of an accident exists.
I will first consider any direct evidence to establish proof of accident, starting with the witnesses. In this case, the worker claimed that the accident was witnessed by the members of their crew, comprised of the foreman, driver, and two Mexican workers. I observe the memo dated January 20, 2020, where the eligibility adjudicator placed a call to both the foeman and driver. Neither of the witnesses were able to corroborate the worker’s claim of a work-related injury. The worker did not provide contact for the two Mexican workers. “Kettle man” was also contacted, who reports that they were not present on the day in question.
I next text turn to the July 22, 2020 text message submissions with the witnesses. The worker provided text message exchanges with “The Driver Work”, “The Driver” and “Mexican Roofer”. The text message exchanges do not establish proof of a work-related accident. However, the messages support that the respondents were aware of the worker’s injured leg. The messages appear to demonstrate that the co-workers were checking in on how the worker was feeling and whether they would be attending work.
Finally, I considered the worker’s witness. It is noted that this witness agreed to testify at the hearing and ultimately did not attend. This witness rented a yard adjacent to the employer’s. This witness was sought out by Witness 1, while assisting the worker in their collection of evidence.
While Witness 1 has provided testimony in this case, I would point out that they had no knowledge of the workplace accident, other than through second hand information. While hearsay evidence is admissible, in relation to the worker’s witness, I will defer to the sworn written statement admitted in evidence, over the testimony provided by Witness 1 regarding proof of accident.
The sworn statement from the worker’s witness confirms that on September 24, 2019, they were present in their yard. The witness confirmed witnessing the employer’s vehicle and four employees in the adjacent yard, separated by a chain link fence. The witness recalled hearing a man screaming loudly. The statement notes that they saw a man with their left pant leg rolled up, screaming in pain. The witness’ statement indicates that they later came to realize that the man was the worker in this case. The witness also provided pictures of what appears to be both yards in question.
From a contemporaneous standpoint, I note that the statement collected from the worker’s witness is approximately 10 months post-accident and does not provide an eyewitness account of a work-related accident. It is unclear how the witness came to learn that the man yelling was the worker; however, given the testimony of Witness 1, it appears that the discussion between the two witnesses about the worker’s reported accident led to this realization. I do not discredit the sworn statement provided by the witness, however, it does not establish proof that a work-related injury occurred on September 24, 2019.
I find it significant that none of the alleged eyewitness crew members were able to corroborate that the worker was injured by accident, at work on September 24, 2019 as claimed. However, in the alternative, I note that two of the crew members demonstrate their awareness of the worker’s symptomatic left leg, given the text message exchanges. The text message do not offer evidence to support that the symptoms arose from an injury at work, but questioned if the worker will be working. I find it reasonable that this inquiry would be made, given the worker is transported to and from work each day by their co-workers. However, it would not serve as definite poof of accident.
As such, I do not find that there is any direct evidence of the accident in question. However, this is not uncommon, as many workplace accidents go unwitnessed. In the absence of any direct evidence, proof of accident is generally established through the events and actions that immediately follow the reported accident. An immediate onset of pain, immediate reporting of the accident, immediate layoff from work and immediate medical attention can serve as supporting evidence.
I again turn to the text messages from the witnesses to the worker. The text messages support the presence of immediate pain. The worker was contacted on September 24, 2019 and September 25, 2019, to ask how they were feeling and if they were coming to work. In these exchanges, the worker indicated that they were in pain and were unable to work. The text messages continued into October 2019, to follow-up on the worker’s recovery status.
Following the accident I note that the worker testified that they were taken to a pharmacy, where medication was purchased. The worker reports managing their pain with medication and alcohol until they sought medical attention on October 7, 2019 at a walk-in clinic. Receipts from the walk-in clinic were provided demonstrating prescriptions were dispensed. Although clinical notes are not available for this visit and a Form 8 was not completed, I note the next record is that of a left knee x-ray dated October 17, 2019. As such, I can establish the worker was likely treated for their left knee on October 7, 2019 leading to a requisition for an x-ray of their left knee.
The next medical assessment is on November 11, 2019 with Dr. Moreira. At this assessment the worker is noted to have injured their left knee when it became “smashed” between two bars. This is consistent with the worker’s reported accident. The report also confirms that the worker was referred to the clinic by the employer, which is consistent with their testimony. A diagnosis is not specified, however the left knee is noted to be contused and swelled. The employer argued that the treatment was not for a work-related injury. They further argue that they did not discuss the treatment as being work-related with Dr. Moreira in their testimony. I do not observe this to be the case. I acknowledge the July 22, 2020 memo which confirms Dr. Moreira spoke with Witness 2 on November 11, 2019 and it was the practitioner’s understanding that treatment was for a work-related injury. This is inconsistent with the employer’s testimony.
Following this assessment, on November 13, 2019, a Form 8 is completed. I note that the signing physician operates out of the same walk-in clinic that was visited on October 7, 2019. This appears to be the first documented medical visit for a work-related accident. The Form 8 identified the date of accident as September 19, 2019 confirming a knee contusion from a vehicle accident. The accident date is later revised to September 24, 2019, noting an injury resulting from a crush between two kettles.
I note that the November 11, 2019 and November 13, 2019 assessments are the first two pieces of medical documentation supporting a work-related injury. The worker was diagnosed with a left knee contusion. The medical information is delayed by approximately seven weeks. Although medical records support that the worker sought treatment prior to this.
In considering this evidence, I am able to establish that the worker was treated for a left knee injury, which was acknowledged by D. Moreira to be work-related. While there is a delay in seeking medical attention, I find that this delay is reasonable under the circumstances of this case. The worker noted in their testimony that they were an undocumented worker. From the evidence, it is clear that the worker would need to pay for any medical visits given that they would not be eligible for treatment under the Ontario Health Insurance Plan (OHIP). The worker has provided receipts, which would support this. The worker also explained their attempt to manage their pain with medication and alcohol in the interim. While immediate medical attention was not sought, the combined evidence supports why the worker would have been hesitant to seek medical attention sooner and documents their attempt to self-manage their injury. For these reasons I find the delay in seeking medical attention to be reasonable.
In relation to immediate layoff from work, I note the eligibility adjudicator’s memo dated July 22, 2020, which documents a discussion with the office administrator regarding the worker’s attendance following the accident. The worker was absent on September 25, 2019 and September 26, 2019. They worked from September 27, 2019 through to October 4, 2019, with October 2, 2019 noted as a rain day. The worker then resumed work on October 15, 2019, October 24, 2019, October 25, 2019 and October 28, 2019 through to November 1, 2019. This remains consistent with the worker’s testimony that they attempted work but ultimately were unable.
I also note the relevance of the text message exchange with the driver. It is noted that “The Driver Work” and “The Driver” are the same contact, under two different messaging platforms. I note that the witness was summoned to attend the hearing and ultimately did not respond to the summons. The worker’s text message of January 24, 2020 questioned the driver asking, “you told me that you had told your boss/owners, on the day that the accident happened. They said you didn’t tell them anything … take care of that, please.” I note there is no response to this message. However, when questioned by the eligibility adjudicator in memo dated January 20, 2020, the witness denies any knowledge of a work-related accident.
In considering this evidence, I am persuaded by the worker’s testimony for the following reasons. The worker offered testimony that was consistent with their original reporting and case record. Their additional evidence, while not offering direct proof, did provide additional merit and credibility to their claim of injury. The text message sent to the driver is consistent with the worker’s Form 6 report and testimony that they immediately reported the accident to the employer. It is clear, that the crew was aware of the worker’s absences due to a leg injury from the follow up text message exchanges. However, it is unclear whether the crew members genuinely relayed the information to the employer. It is curious that the driver of the work truck did not attend the hearing. The witness’ testimony would have added significant value to case and would have filled the gap of time to account for the worker’s pre and post-accident state on the day of accident, as they were responsible for driving the worker to and home from work that day.
Although the employer denied being aware of a workplace injury, it is curious that the employer did not inquire further when the worker raised concerns about a left knee injury and requested compensation in late October and early November. It is further noted to be unconventional, although not unimaginable, for an employer to recommend a worker to their personal practitioner and pay for their treatment. As such, my findings are in favour of the worker’s testimony regarding their report of injury to the employer.
Overall, I note that there remains some uncertainty between the evidence and testimonies provided by either party. However, when weighing the information, I find that I am persuaded to rule in favour of the worker for the following reasons. The worker testified in a straightforward manner and demonstrated consistency in their testimony, as it relates to the facts presented in this case. As such, the worker did appear to be credible and weight was placed on their testimony.
Although their remains no direct evidence of a workplace accident, I find that the circumstantial evidence supports the worker’s version of the events that transpired on September 24, 2019. While none of the worker’s colleagues have confirmed witnessing an accident on September 24, 2019, I note that the worker’s witness confirms they were present on the date in question. In their sworn affidavit, they confirm witnessing the worker with their left pant leg rolled up, yelling in pain. The worker was contacted that same day from the “Mexican Roofer” to check in on how they were feeling. The worker laid off on September 25, 2019 and September 26, 2019. Combined, the evidence supports that the worker demonstrated an immediate onset of pain and layoff from work.
Although the worker did not seek treatment immediately, it was reported that they managed their pain with medication and alcohol. I find the worker’s testimony to be credible, in explaining their delay in seeking treatment. It was noted that the worker is currently undocumented, therefore, it is reasonable that they may have been reluctant to seek immediate medical care. The November 11, 2019 medical supports that the employer referred the worker for treatment with Dr. Moreira who confirmed their understanding that the treatment was related to a workplace accident. The worker was ultimately diagnosed with a left knee contusion on November 13, 2019, resulting from a workplace crush accident.
As such, on the balance of probabilities, I find that the evidence supports that proof of accident is established in this case. I find that the worker was diagnosed with a left knee contusion, which is consistent with the reported injuring process in this case. As such compatibility of the diagnosis has been established.
As all five criteria under policy 11-01-01 have been met, I find that the worker is granted initial entitlement for their left knee injury. I will defer ongoing entitlement and loss of earnings benefits to the operating area to determine the benefits flowing from this decision.
CONCLUSION
I conclude that the worker is granted initial entitlement for a left knee contusion.
The worker’s objection is allowed.
DATED July 4, 2022
Nancy Mazza
Appeals Resolution Officer
Appeals Services Division