DECISION NUMBER:

20230033

OBJECTING PARTY:

EMPLOYER

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

CONRAD FLATMAN, APPEALS RESOLUTION OFFICER

FEBRUARY 1, 2023

ISSUE

The employer objects to the Eligibility Adjudicator (EA) decision dated March 31, 2022, which granted initial entitlement under this claim for the diagnosis of Welder’s Flash and granted one (1) day of loss of earnings (LOE) benefits for March 15, 2022.

BACKGROUND

On March 14, 2022, this Welder/Boilermaker was doing some practice welding and looked at the welding light several times using the shaded lens. The light caught them out of the corner of their eye a few times and they felt a slight irritation while at work. After going to bed that night, the worker woke up in the middle of the night with a burning sensation in both of their eyes. The worker reported this incident to their employer on March 15, 2022 and sought initial medical attention on March 15, 2022. The initial diagnosis was Welder’s Flash. The worker lost one shift at work on March 15, 2022 and then returned to work on March 16, 2022.

On March 31, 2022, an EA reviewed the claim and granted initial entitlement to the diagnosis of Welder’s Flash and granted entitlement to LOE benefits for the lost shift on March 15, 2022. The employer objected to this decision.

On April 12, 2022, an EA reconsidered and upheld the prior decision dated March 31, 2022. The employer’s objection to the decision dated March 31, 2022 forms the basis of this appeal. AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) September 1, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that will be explained, I find that the worker has initial entitlement for the diagnosis of Welder’s Flash and entitlement to LOE benefits for March 15, 2022.

Position of the Parties

The employer’s position is outlined in their submission dated November 24, 2022. The employer asks that this claim be reviewed for the initial entitlement and lost time as the employer feels that the incident in question was reported late to them. The worker reported the incident on March 15, 2022 which the employer feels was late. From their perspective, this contributed to the employer not being able to provide modified duties that would have mitigated the lost time.

The worker did not participate in the appeal; therefore, no additional information or arguments were put forth for consideration.

Assessment

In determining initial entitlement, the appropriate policy is 11-01-01 Adjudicative Process, which outlines that it is necessary to establish five points: an employer; a worker; a personal work-related injury; proof of accident; and compatibility of the diagnosis to the accident or disablement history.

Consideration of proof of accident may include examining whether an accident or disablement situation exists; whether there were witnesses; whether there were discrepancies in the date of accident and the date of layoff; whether there was a delay in the onset of symptoms; and whether there was a delay in seeking medical attention.

Consideration of compatibility of the diagnosis to the accident history or disablement history includes examining whether the diagnosis was the result of the accident or disablement history described. It must be established on the balance of probabilities of the diagnosis arose as a result of the mechanism of injury (MOI) accepted under the claim.

For a claim to be allowed under policy 11-01-01 all five points of the five-point check system must be met. In this case, I have focused my analysis on proof of accident and compatibility of the diagnosis to the accident.

With regards to proof of accident, the accident history involved the worker practice welding and looking at the welding light several times using the shaded lens. The light caught them out of the corner of their eye a few times and they felt a slight irritation while at work. From my perspective, this is an accident history that could have reasonably caused a workplace injury. Further, the worker reported the incident to the employer on the next day and sought initial medical attention on the next day. I find that this reporting and seeking of medical attention is prompt enough to establish proof of accident.

I acknowledge the perspective of the employer who stated that they felt the worker reporting on the day after the incident was late reporting. However, I find that I am not in agreement with the employer on this point. Reporting a workplace incident the day after it occurred is not an unreasonable delay. Further, the worker claimed that their symptoms worsened after their shift concluded so it was reasonable that they reported on the next day. As there was very little intervening time between the welding incident at work

and the initial reporting and initial medical, I find that on the balance of probabilities proof of accident is established in this claim as required by policy 11-01-01.

With regards to compatibility, I find that the diagnosis of Welder’s Flash is compatible with the MOI as described by policy 11-01-01. There was no intervening activities that would otherwise explain the worker’s diagnosis of Welder’s Flash as provided in the Health Professional’s Report (Form 8) dated March 15, 2022. From my perspective, compatibility is established between the accident history of welding and the diagnosis of Welder’s Flash. Therefore, I find that the worker does have initial entitlement for Welder’s Flash.

Policy 18-03-02 is the appropriate policy to review the worker’s entitlement to LOE benefits. This policy states in part;

Full LOE

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, see 19-02-08, RTW Co-operation Obligations, 19-02-09, Re-employment Obligations, and 22-01- 03, Workers’ Co-operation Obligations.

In this claim, the worker was paid one (1) day of LOE benefits for the lost shift on March 15, 2022. The employer feels that the late reporting of the worker contributed to them not being able to provide modified work which resulted in the lost time.

I find that the worker is entitled to one (1) day of LOE benefits for the lost shift on March 15, 2022. First, I note that the aforementioned Form 8 dated March 15, 2022 stated that the worker could return to full regular duties on March 17, 2022. The doctor who completed this Form 8 stated that the worker should be off work for two days. In this particular case, the worker returned earlier than the doctor had prescribed and only lost one day at work. From my perspective, it was reasonable that the worker would be totally impaired and unable to work for this shift immediately after the date of injury. As the worker had clinical authorization to be off work, I find that it is reasonable to approve LOE benefits for March 15, 2022.

Second, I do not agree with the employer’s position that the worker’s reporting contributed to the lost time. According to the Worker’s Report of Injury/Disease (Form 6), they reported the incident to their employer at 5:00 AM on March 15, 2022. The worker spoke with an EA on March 31, 2022 as noted in the memorandum on file and indicated that they sent a text message to the employer on March 15, 2022. The Employers’ Report of Injury/Disease (Form 7) was not fully completed and did not indicate the exact time when the incident was reported. However, the employer’s submission dated November 24, 2022 did indicate that the worker reported on March 15, 2022. From my perspective, I find it reasonable to accept the worker’s version of events as there is no confirmed evidence to the contrary and the employer’s statement confirms the date if not the exact time of the reporting.

Third, the worker is allowed to seek initial medical attention after sustaining an injury. Therefore, it is not always possible to avoid lost time in a claim. It is reasonable that the worker be able to seek medical attention after the injury and that contributed to them missing the shift on March 15, 2022 in this case. I find that the worker returned quickly to work on March 16, 2022 and so I conclude that the worker acted in a reasonable manner and ought to be compensated for their one (1) lost time shit on March 15, 2022.

For the foregoing reasons, I find that the worker had clinical authorization to be off work on March 15, 2022 and they sought medical attention on this date. Further, I find that the worker was co-operative in returning to work promptly and therefore as provided by policy 18-03-02, I find that they are entitled to LOE benefits for the lost shift on March 15, 2022.

The employer’s appeal is therefore, denied.

CONCLUSION

The worker has initial entitlement to the diagnosis of Welder’s Flash and has entitlement to LOE benefits for March 15, 2022.

The employer’s objection is denied.

DATED February 1, 2023

Conrad Flatman

Appeals Resolution Officer Appeals Services Division