ISSUE

The employer is objecting to the allowance of secondary entitlement for an infected burn of the left upper thigh, including loss of earnings (LOE) benefits from March 21, 2023, in the Eligibility Adjudicator (EA) decision of March 31, 2023.

BACKGROUND

The worker was employed as a mechanic. On March 16, 2023, the worker backed up against a plasma torch handle and burned the back of their left thigh. The worker was 47 years old when the injury occurred. The worker sought medical attention the same day and was diagnosed with a thermal burn injury of the left upper thigh.

The worker initially returned to work and did not lose time due to the injury. The worker started losing time from work as of March 21, 2023. Chart notes from the worker’s doctor showed that the worker was seen on March 21, 2023 and had developed infection in the wound, with yellow drainage, redness and inflammation. Antibiotic treatment was started for the infection.

The EA decision of March 31, 2023, accepted that the burn injury had become infected. Full LOE benefits were paid from March 21, 2023 to April 10, 2023.

A reconsideration decision dated September 11, 2023, confirmed that entitlement was in order for an infection of the worker’s deep thermal burn as a secondary condition. The decision also confirmed that the worker was unable to work from March 21, 2023 as a result of the injury and infection.

AUTHORITY

Operational Policy Manual

Published

15-05-01 Resulting from Work-Related Disability/Impairment 15-05-03 Non-Work-Related - Second Accidents

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

April 9, 2021

November 3, 2008

September 1, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement for the infection and the resulting lost time remains in order. My reasons are explained below.

The employer submitted an Appeal Readiness Form dated August 15, 2023, with an attached submission. They are objecting to the allowance of lost time, based on their position that the infection was a secondary condition that was not work-related and developed outside of work hours. They noted that the infection set in after the weekend. The employer argued that the worker was provided with sterilized uniforms, ensuring that the wound was shielded from any external agents during work hours. They claimed the worker was also provided with extra sterilized uniforms to change into before leaving the worksite. The uniforms were worn on top of the worker’s clothes and bandages. It is their position that the infection did not occur due to any exposure or negligence at the workplace and must have developed outside of work. They relied on operational policy 15-05-03 regarding non-work related second accidents to support their position that entitlement should not have been allowed for the infection and the resulting lost time.

The worker is not participating in the appeal and did not submit a Respondent Form.

According to operational policy 15-05-01, workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work- related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.

I have considered the arguments raised by the employer, but I find the infection was causally linked to the work-related burn injury. Although it is not known exactly how the wound on the left upper thigh became infected, it is not necessary to establish that the infection occurred at work in order to accept entitlement. It has been accepted that the worker sustained the left thigh burn at work and no dispute has been raised on that issue. The infection set in a few days after the injury, which is a potential complication for a significant burn. If not for the work-related burn, there would have been no wound to become infected and the worker would not have been subject to the risk of infection. On that basis, I am satisfied that the infection was causally linked to the work-related burn injury on the left upper thigh.

The employer relied on operational policy 15-05-03 to support their position that the WSIB does not accept entitlement for an injury as a result of a second accident that is due to a non-work-related cause. I have considered the employer’s argument but I find operational policy 15-05-03 is not applicable to the facts of this case because the worker did not sustain a second accident due to a non-work-related cause.

I also accept that LOE benefits were appropriately paid from March 21, 2023, because the worker was completely unable to work. According to operational policy 18-03-02, if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

The medical evidence supports that the nature and seriousness of the injury caused the worker to be completely unable to work as of March 21, 2023. A Functional Abilities Form (FAF) and a letter completed by the worker’s doctor on March 21, 2023, indicated the worker was unable to work. An FAF from the worker’s doctor dated March 27, 2023, confirmed the worker was still unable to work. The report

indicated that the worker had sustained a deep thermal injury of the left thigh, which may have damaged deep muscles and nerves. In a conversation with a Case Manager on April 3, 2023, documented in claim file memo X, the worker reported they had been using a heavy dose of antibiotics to deal with the infection. The worker said the wound was on the back of the thigh and was approximately the size of a palm. The worker had difficulty sitting due to pain and was walking with a limp.

Because I have determined that the infection was causally linked to the thermal burn injury of the left upper thigh, I find entitlement remains in order for the infection and the resulting lost time beginning March 21, 2023.

CONCLUSION

I conclude secondary entitlement remains in order for an infected burn of the left upper thigh, including LOE benefits from March 21, 2023.

The employer’s objection is denied.

DATED November 27, 2023

Helen Shaw

Appeals Resolution Officer Appeals Services Division

Employer v. Worker, 2023 CanLII 122873

Case Summary

ISSUE

BACKGROUND

AUTHORITY

CONCLUSION