DECISION NUMBER:

20230130

OBJECTING PARTY:

WORKER

REPRESENTED by:

SELF

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

STEPHANIE WATERS, APPEALS RESOLUTION OFFICER

OCTOBER 13, 2023

ISSUE

The worker objects to multiple Eligibility Adjudicator (EA) decisions on file dated January 25, 2023, February 15, 2023, June 19, 2023, July 12, 2023, and August 21, 2023. These decisions determined:

1. The worker missed the six-month time limit to file a claim and an extension was not in order;

2. Initial entitlement for a left shoulder injury was not in order.

BACKGROUND

On June 19, 2003 while working as a lifeguard, the worker stated they experienced a left shoulder dislocation when they were walking down a hallway and a group of running students knocked into them. The worker reported the incident to their employer the same day, who submitted an Employer’s Report of Injury/Disease (Form 7) on June 26, 2003.

The worker contacted an Adjudicator on July 8, 2003, stating they did not seek medical attention for the injury, did not lose time from work, and did not intend to pursue a claim for benefits. The Adjudicator sent a letter to the worker on July 9, 2003, indicating benefits were not payable in the claim because the worker did not receive healthcare for the injury.

The worker submitted a Worker’s Report of Injury/Disease (Form 6) for this incident on May 4, 2022. The worker stated they first sought medical attention on June 19, 2003. The worker also provided a written statement with their Form 6. The worker stated their left shoulder caused problems over the years but they never lost time from work and only recently noticed mobility issues that may force them to retire.

In a letter of January 25, 2023, the EA denied initial entitlement to benefits for a left shoulder injury. The EA explained they could not establish proof of accident, continuity, or determine the June 2003 incident was the significant reason for the worker’s continued impairment. The worker submitted an Intent to Object (ITO) Form and Appeal Readiness Forms with additional statements to appeal this decision.

The EA confirmed their denial of entitlement to benefits in letters dated February 15, 2023 and

June 19, 2023. In letters of July 12, 2023 and August 21, 2023, the EA again confirmed their denial of

entitlement in the claim. The EA also indicated the worker missed the six-month time limit to file a claim for benefits, and determined a time limit extension was not in order.

AUTHORITY

Legislation

Workplace Safety and Insurance Act, 1997 (WSIA), Section 22.

Operational Policy Manual Published

11-01-01 Adjudicative Process

15-01-03 Workers’ Requirement to Claim and Consent

November 3, 2008

April 9, 2021

ANALYSIS

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

1. There are exceptional circumstances warranting an extension of the time limit to file a claim, but

2. Initial entitlement to benefits for a left shoulder injury from the June 19, 2003 work incident is not in order.

The worker’s appeal is denied. Worker’s Position

It is the worker’s position that they had a left shoulder dislocation due to a work incident in June 2003, and they coped with ongoing issues for the next 20 years. The worker stated they are seeking benefits now because they are no longer able to work due to their ongoing left shoulder issue.

Employer’s Position

It is the employer representative’s position that benefits are not in order in the worker’s claim. They stated the worker did not provide any objective medical evidence to link their current shoulder issues to the work incident, or provide any reason for why their claim should be considered nearly 20 years after the incident. The employer’s representative added the WSIB sent a letter denying benefits due to a lack of medical attention in July 2003, which was not challenged within the six-month time limit to object.

Assessment of Entitlement

1. A time limit extension to file a claim is in order.

It is the worker’s position that they are entitled to benefits because they had a left shoulder injury at work in June 2003 and had ongoing issues since that time. It is the employer representative’s position that the worker has not met the time limit to object to the July 2003 decision in the claim. To clarify, my jurisdiction is limited to the operating area’s determinations that the worker missed the time limit to file a claim under section 22 of the WSIA, and that initial entitlement to benefits is not in order.

I understand the Adjudicator sent a letter in July 2003 indicating no benefits were payable because the worker did not receive healthcare. However, I note the EA’s January 2023 decision (and subsequent reconsiderations) was based on new information provided by the worker that they did in fact receive healthcare treatment. The worker met the time limit to object to the January 2023 decision with their ITO Form in February 2023.

For the reasons that follow, I find there is evidence of exceptional circumstances warranting an extension of the time limit to file a claim. When making this decision, I considered the relevant legislation and policy.

Section 22 of the WSIA states that a worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident. The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so.

Policy 15-01-03 (Workers’ Requirement to Claim and Consent) provides additional guidance regarding this matter by stating the following:

If the worker does not file the claim for benefits, or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB does not provide benefits unless, in its opinion, it is just to do so.

Workers meet their requirement to claim for benefits by signing a Worker’s Report of Injury/Disease (Form 6) or a Worker’s Continuity Report (Form REO6). Workers meet their requirement to consent to disclose functional abilities information by signing the Form 6, the Form REO6, or a Functional Abilities Form (FAF).

If a worker fails to file a claim by the respective deadline, the WSIB allows the claim to be filed at a later date if the worker can show that exceptional circumstances existed at the deadline. These can include the worker’s ability to understand the time limit requirements and consequences of not meeting them, or whether the worker reported the accident to the employer, health care professional, or co-workers.

The worker did not sign and submit their Form 6 until May 2022, nearly 20 years after the work accident. There is no signed Form REO6 or FAF on file. As such, the worker did not meet their requirement to claim for benefits or consent to disclose functional abilities information within the six-month deadline following the June 19, 2003 work incident. With that said, I find there are exceptional circumstances that warrant a time limit extension under section 22 of the WSIA.

I find the balance of evidence demonstrates the worker likely did not have a clear understanding of the time limit requirements or consequences of not meeting them. I note the worker has represented themselves from 2003 to date. The worker also asked the Adjudicator in July 2003 if they had to complete and submit a Form 6. The Adjudicator documented their response that the worker only needed to fill out the Form 6 if they saw a doctor. The subsequent July 2003 letter indicated benefits were not payable due to the worker not receiving healthcare. There is no documentation on file clearly showing the worker received an explanation of the time limit requirements or consequences of not submitting the Form 6 within the respective six-month period.

Additionally, although the worker did not submit their Form 6 until 2022, I note the worker reported the incident to the WSIB verbally in July 2003. The worker also reported their left shoulder condition as work- related to a co-worker, as confirmed on a written witness statement dated June 20, 2003, and to their

employer, who reported the incident to the WSIB with a Form 7 within the six-month deadline to file a claim. Considering the above, I find there were exceptional circumstances that existed before the

six-month deadline expired that warrant an extension of the time limit to file a claim for the June 19, 2003 work incident.

2. Benefits for a left shoulder injury from the June 19, 2003 incident are not in order.

It is the worker’s position that they are entitled to benefits for their left shoulder injury in June 2003 and ongoing issues since that time including a recent inability to continue working. It is the employer representative’s position that benefits are not in order because there is no objective medical evidence linking the worker’s current shoulder issues to the work incident. Information on file supports the employer representative’s position. When making my decision, I considered the policy that explains the criteria that must be satisfied to grant initial entitlement for a work-related injury.

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

I find initial entitlement to benefits for a left shoulder injury from the June 2003 incident is not in order because I cannot establish the third or fourth criteria are satisfied. The third criterion looks to establish the worker had a personal injury resulting from an accident that happened because of the worker’s job while they were working. The fourth criterion considers circumstances such as an immediate onset of symptoms, need for medical attention, or stoppage of work duties to establish a work-related accident happened as described and caused the worker’s diagnosed injury. Specifically, I find documentary evidence supports the work incident happened as described but there is no contemporaneous medical information to establish the incident caused a work-related injury to the worker’s left shoulder.

Noting the length of time between the work incident in June 2003 and the worker submitting their Form 6 in May 2022, I considered the worker’s written statements regarding their treatment following the incident when making my decision. In voicemail messages to the Adjudicator on July 8, 2003, the worker confirmed they did not seek medical attention or see a doctor for their left shoulder following the incident. Within their May 4, 2022 Form 6, the worker indicated they first saw a chiropractor regarding their left shoulder on June 19, 2003, and they did physiotherapy for six weeks. In an attached statement dated May 4, 2022, the worker indicated they went to a chiropractor to get their left shoulder taped, did physiotherapy for strengthening, and did medical imaging for their left shoulder “over the years”.

On January 5, 2023, the worker wrote that their left shoulder dislocated but went back in, and the worker just went to a chiropractor to get it taped following the incident. The worker added their left shoulder dislocated several times over the years but the worker just got it taped and continued working. The worker noted the doctors they saw in the past have since passed away. When speaking to a Customer Service Representative on January 16, 2023, the worker stated they went to Hospital X for an x-ray of their left shoulder sometime in 2003, and had an MRI and tests done at Hospital Y sometime in 2005. The worker also stated they did physiotherapy at one point and then switched to a chiropractor who taped their shoulder, but did not clarify when this occurred. The worker noted they did physiotherapy in winter 2022 approximately once per week for eight weeks. The worker stated their left shoulder dislocated approximately 20 times since June 2003, including when they sneezed, and they received a diagnosis of habitual posterior dislocation.

In a written statement dated January 25, 2023, the worker stated they were diagnosed with a habitual posterior dislocation in both shoulders. The worker noted this was probably caused by swimming “butterfly” for years. The worker stated after work on June 19, 2003, they put a sling on their left shoulder. After one week, they saw a chiropractor to get their shoulder taped. The worker added the chiropractor taped their left shoulder about 20 times over the years every time their left shoulder dislocated. Sometime later the worker went to physiotherapy to get current exercises to help with their shoulder condition.

When speaking to the EA on January 26, 2023, the worker stated they put their left shoulder back into place following the June 2003 dislocation. A few days later, the worker sought medical attention with a chiropractor and used a sling. On their February 6, 2023 ITO Form, the worker stated they got medical treatment the day after the incident from a chiropractor in the form of taping and a sling for eight weeks. The worker added they saw this chiropractor every time their left shoulder dislocated (about nine times) until they passed away. The worker stated they also had medical imaging completed of their left shoulder at Hospital X, and physiotherapy the previous year (2022). In another written statement dated August 31, 2023, the worker stated they did not intend to claim benefits back in 2003 because they were able to work once their left shoulder was taped. The worker clarified they are seeking benefits now because they can no longer work due to their left shoulder problem.

The worker consistently stated they did not lose any time from work following the June 2003 incident until recent mobility issues affected their ability to work as of May 2022. I understand the worker indicated in some of their statements that they sought medical attention from a chiropractor on the same day, the following day, or within one week of the incident. The worker noted they have also received episodic periods of treatment since 2003 when their left shoulder dislocated another 9-20 times following the work incident.

I am unable to place any significant weight on the worker’s statements that they sought medical attention immediately after the work incident in June 2003. This is inconsistent with the worker’s contemporaneous reporting that they did not seek any medical attention for their left shoulder, and did not intend to pursue healthcare or a claim for benefits, as of July 8, 2003. The worker’s statements in 2022 and 2023 are also somewhat inconsistent regarding when they first sought medical attention. There are no clinical records on file to confirm the worker sought medical attention after the work incident. With this in mind, I placed more weight on the worker’s contemporaneous statement that they did not receive healthcare for a left shoulder injury since the worker provided this statement three weeks after the work incident rather than the worker’s inconsistent reporting 19 to 20 years later.

In addition to this, medical evidence is necessary to confirm the worker sustained a work-related injury and review compatibility between the mechanism of injury and diagnosis. The only medical report on file is a Health Professional’s Report (Form 8) dated August 1, 2023. The doctor stated the worker had a left shoulder posterior dislocation when a child ran into them at work on June 19, 2003. I cannot place any significant weight on this report considering the doctor completed it 20 years after the incident. There are also no contemporaneous medical records or clinic notes available to establish the condition of the worker’s left shoulder shortly after the June 2003 incident, or between the incident and the completion of the Form 8 in August 2023.

In summary, I find documentary evidence supports the worker was involved in an incident at work on June 19, 2003 when students knocked into them. The worker immediately reported the incident to their employer, who completed a Form 7, and a co-worker provided a witness statement on June 20, 2003.

However, I find there is insufficient medical evidence to establish proof that this incident caused a

work-related dislocation injury to the worker’s left shoulder. The worker remained at work and there is no

contemporaneous medical report confirming a left shoulder injury before August 2023. For these reasons, I find initial entitlement to benefits for a left shoulder injury is not in order since not all criteria are satisfied in accordance with Policy 11-01-01 (Adjudicative Process).

CONCLUSION

I find:

1. There are exceptional circumstances warranting an extension of the time limit to file a claim, but

2. Initial entitlement to benefits for a left shoulder injury from the June 19, 2003 work incident is not in order.

The worker’s appeal is denied.

DATED October 13, 2023

Stephanie Waters Appeals Resolution Officer Appeals Services Division