DECISION NUMBER:
20230044
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING – MARCH 30, 2023
HEARD by:
C. DA CUNHA, APPEALS RESOLUTION OFFICER
DATED:
MARCH 30, 2023
ISSUE
The worker objects to the Eligibility Adjudicator’s (EA) December 13, 2022 decision. This decision denied initial entitlement to a low back sprain/strain injury.
The worker seeks:
- Initial entitlement to a low back sprain/strain injury.
BACKGROUND
On November 22, 2021, the worker felt a pinch/tweak and tightness in their left lower back while getting up from the ground. They had just performed a “core test” as part of an annual, voluntary police fitness (PIN) test. The “core test” involved the worker lying face down on the ground, while someone held their legs in place, and then raising, twisting, and placing their upper body in a plank position, with their hands across their chest. They had worked with the employer for over 13 years, as a Detective Constable at the time.
The low back pain worsened over time, and, in early December 2021, the worker complained about the tightness in the lower back to their Supervisor, mentioning that this had occurred following the PIN test. The worker tried to work through the pain, using a sit/stand desk, performing stretches, receiving massage treatment, resting, and icing the back. However, the low back condition continued to deteriorate.
On December 21, 2021, they woke up with acute low back pain and formally reported the workplace accident to their supervisor. The worker saw Dr. M. Hurley, Chiropractor, on December 23, 2021.
They saw their family physician, Dr. J. Parr, on January 14, 2022. Dr. Parr subsequently diagnosed a low back sprain/strain injury, with suspicion of a herniated disc.
On January 21, 2022, the worker, while sitting and bending down to put on their socks, felt a sudden, sharp, intense pain in the same area, which caused them to fall over. They saw their Physiotherapist that day and went off work, returning to modified duties at home on January 28, 2022.
The EA’s Decision: On December 13, 2022, the EA accepted that the worker was in the course of their employment while participating in the PIN test on November 2, 2021. However, the EA denied initial entitlement to a low back injury arising from an accident on that date, finding that, because of the delays in reporting the accident and seeking medical attention, proof of accident could not be established.
The Worker’s Position: The worker representative argues that the evidence shows that the low back injury arose out of, and in the course of, the worker’s employment on November 22, 2021. Therefore, initial entitlement is in order.
The Employer’s Position: The employer representative argues that initial entitlement is not in order for the following reasons:
- Proof of accident is not established: There is a significant discrepancy between the date of the alleged injury and the date that the worker stopped working. The worker alleges that they were injured on November 22, 2021. However, they remained at work, performing their regular duties until January 21, 2022.
Furthermore, there was a significant delay in the onset of symptoms and/or seeking medical attention. The worker delayed seeking medical attention until December 23, 2021. In fact, they did not even report the incident to the employer until December 21, 2021, approximately a month after the alleged injury.
These factors demonstrate that the worker is not able to establish proof of accident.
- The injury did not arise out of and in the course of employment: The PIN test occurred at a gymnasium located in the employer’s facility. However, the worker completed the PIN test on their day off, outside of their working hours, and was not provided with any monetary compensation. Furthermore, the PIN test is a voluntary fitness test that is not part of the worker’s regular employment duties. The worker is not required to complete a PIN test to maintain their employment.
The worker’s regular duties are sedentary in nature. Their typical duties include investigating cases, issuing search warrants, engaging in surveillance, assisting the fire investigation team, and making arrests. They perform 75% of their job at a desk. The remaining 25% does not require them to be physically active, and certainly does not require core endurance, the ability to do
push-ups, flexibility, or the ability to run. The worker voluntarily chose to complete the PIN test despite the fact that it was not relevant to their job. As it relates to the nature of the work environment, and the customs and practices of the employer, only 266 Police Officers completed the fitness test in 2021, representing only 43% of all sworn members. It is not a work environment where participation is an expectation.
These factors demonstrate that the worker is not able to establish that they were injured due to an activity that was reasonably incidental to their work.
AUTHORITY
Section 13 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual
Published
11-01-01: Adjudicative Process
November 3, 2008
15-02-01: Definition of an Accident
October 12, 2004
15-02-02: Accident in the Course of Employment
October 12, 2004
15-03-03: On/Off Employers’ Premises
October 12, 2004
15-03-07: Physical Fitness Programs
October 12, 2004
15-03-08: Personal Activities/Removing Self From Employment
October 12, 2004
ANALYSIS
I have carefully considered all of the available information, the relevant legislation, and appropriate operational policies in reaching this decision. Having done so, I find that initial entitlement to a low back sprain/strain injury is in order.
According to operational policy 11-01-01, Adjudicative Process, WSIB decision-makers use the “five point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:
An employer;
A worker;
A personal work-related injury;
Proof of accident; and,
Compatibility of diagnosis to accident or disablement history.
There is no dispute regarding the worker and employer relationship. The matters to be resolved are whether proof of accident can be established and, if so, if the worker suffered a work-related low back injury that is compatible with the accident history.
Operational policy 15-02-01, Definition of an Accident, categorizes three different types of accidents, including:
A wilful 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.
A “chance event” is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
A “disablement” is either:
A condition that emerges gradually over time; or,
An unexpected result of working duties.
The worker’s accident history is neither a wilful and intentional act nor a chance event (i.e. an identifiable unintended event causing an injury). The accident history is that of a disablement. Specifically, it is a condition that occurred as an unexpected result of working duties.
As the worker’s claim is a disablement, they do not have the benefit of the presumption under Section 13(2) of the WSIA, which states:
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
In other words, because the accident is neither a willful and intentional act nor a chance event, it cannot be presumed that it arose out of and in the course of employment. Therefore, the onus is on the worker to prove the work-relatedness of the low back sprain/strain diagnosed by Dr. Parr.
The relevant and undisputed facts and circumstances of the worker’s claim are as follows:
While it is voluntary, and not mandatory, the employer encourages its workers to maintain their physical fitness. Part of this encouragement is the PIN test, which takes 45 minutes to complete and is comprised of four components: core endurance, push-ups, flexibility, and running. The employer incentivizes its workers to participate in the annual PIN test by remunerating them with time off with pay, equivalent to their years of service, upon completion of the test; and,
On November 22, 2021, a day the worker was not scheduled to work, the employer authorized the worker to attend the gymnasium at their premises to complete the PIN test, under the supervision and control of one of its Wellness Co-Ordinators.
Operational policy 15-02-02, Accident in the Course of Employment, states, in part:
A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
Guidelines
In determining whether a personal injury by accident occurred in the course of employment, the decision-maker applies the criteria of place, time, and activity in the following way:
Place
If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.
If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in
work-related activities.
Time
If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work.
If a worker does not have fixed working hours or if the accident occurred outside the worker's fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.
Activity
If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.
If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as
the duration of the activity
the nature of the activity, and
the extent to which it deviated from the worker's regular employment activities.
In determining whether an activity was incidental to the employment, the decision-maker should take into consideration
the nature of the work
the nature of the work environment, and
the customs and practices of the particular workplace.
Application of criteria
The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.
If a worker with fixed working hours and a fixed workplace suffered a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, the worker was engaged in a personal activity that was not incidental to the worker's employment.
The decision-maker examines the activity of the worker at the time of the accident to determine whether the worker's activity was of such a personal nature that it should not be considered work-related.
In all other circumstances, the time and place of the accident are less important. In these cases, the decision-maker focuses on the activity of the worker and examines all the surrounding circumstances to decide if the worker was in the course of employment at the time that the personal injury by accident occurred.
Time
The worker’s claim is that they injured their low back on November 22, 2021, a day when they were not scheduled to perform their regular duties. However, the employer remunerated them with time off with pay, equivalent to their years of service, to be on their premises on that day. Therefore, I find that the “time” criterion has been met with respect to the work-relatedness of the worker’s personal injury.
Place
With respect to this issue, operational policy 15-03-03, On/Off Employers’ Premises, adds, in part:
A worker is considered to be in the course of employment on entering the employer's premises, as defined, at the proper time, using the accepted means for entering and leaving to perform activities for the purpose of the employer's business. The "In the course of employment" status ends on leaving the employer's premises, unless the worker leaves the premises for the purpose of the employment.
The employer's premises are defined as the building, plant, or location in which the worker is entitled to be, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways, and roads controlled by the employer for the use of the workers when entering or leaving the work site.
An accident shall be considered to arise out of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident
the accident is occasioned by the injured worker using, for personal reasons, any instrument of added peril such as an automobile, motorcycle, or bicycle, except when the accident was caused by the condition of the road or happening under the control of the employer, or
the worker is performing an act not incidental to his work or employment obligations.
As previously noted, there is no dispute that the worker was on the employer’s premises (i.e. the gymnasium), authorized by the employer to be there, when the claimed accident occurred.
Furthermore, the worker was participating in the employer’s PIN test, which incentivizes and remunerates their workers to maintain or improve their physical fitness, when the accident occurred. In other words, they were performing an act incidental to their employment obligations. Therefore, I find that the evidence does not show that, when the claimed accident occurred, either of the two disqualifying criteria noted above were evident.
Noting the above, I find that the “place” criterion has been met with respect to the work-relatedness of the worker’s personal injury.
Activity
The worker was involved in a physical fitness activity when their claimed accident occurred. In order to determine if the activity was work-related, the circumstances of the claim dictate that we must first look at operational policy 15-03-07, Physical Fitness Programs (PFP), which states:
Claims for firefighters and police officers who are injured while participating in physical fitness programs will be accepted as arising out of and occurring in the course of employment where:
the firefighter or police officer is on paid duty and the accident occurs during normal working hours,
the physical fitness program has been authorized by the fire chief or police chief,
the physical fitness activity is under the direct supervision and control of the responsible officer on duty, and
the physical fitness program takes place at the fire station or police station or at other locations authorized by the fire chief or police chief and is supervised by the responsible officer on duty.
Furthermore, one must also consider operational policy 15-03-08, Personal Activities/Removing Self From Employment, which states:
An accident shall be considered to occur in the course of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident the worker is performing an act not incidental to the work or employment obligations.
Compensation benefits are not payable to a worker who is voluntarily out of the course of the employment. Such situations may include
doing something outside the worker's normal duties, such as transacting personal business, or
going places having nothing to do with the worker's employment or doing something not reasonably expected of the worker.
Operational policy 15-03-07, PFP, does not define what is a considered to be a PFP. However, in this specific case, the employer set-up and ran the annual PIN test to encourage its workers to maintain or improve their physical fitness. In so doing, both the employer and the worker benefitted. Furthermore, the employer maintained, controlled, and staffed a gymnasium on its premises and authorized its workers to use it. In so doing, it encouraged and facilitated its workers to maintain or improve their physical fitness throughout the year. This evidence leads me to find that the annual PIN test was an essential part of a PFP, as intended under operational policy 15-03-07, PFP.
I find that the worker was on paid duty, during normal working hours, when the accident occurred. As noted above, the employer remunerated them with time off with pay, equivalent to their years of service, to participate in and complete the PIN test. Furthermore, the employer authorized the worker to be on
their premises in order to do so. Therefore, I find that the accident occurred during normal working hours, established by the employer providing authorized access to their premises.
There is no dispute that the PIN test is authorized by the employer. There is no evidence on record that the Police Chief did not authorize the PIN Test. These facts and circumstances lead me to find that the Police Chief did authorize the worker’s November 22, 2021 PIN test.
The evidence shows that the employer’s Wellness Co-Ordinator (i.e. the responsible officer on duty) directly supervised and controlled the worker’s PIN test on November 22, 2021. Therefore, I find that this criterion is met.
As already noted, the employer authorized the worker to carry out the PIN test on the employer’s premises (i.e. the gymnasium). Therefore, this criterion is met.
The facts and circumstances on record lead me to find that, during the November 22, 2021 PIN test, the worker was not doing something outside of their normal duties or that the employer did not reasonably expect them to do. The PIN test, even though it was voluntary, was an annual part of their regular duties, encouraged by, and of benefit to, the employer. The worker performed the PIN test in good faith.
Therefore, I find that the November 22, 2021 PIN test:
Arose out of the worker’s employment; and,
Occurred in the course of the worker’s employment.
The remaining matter to be resolved is whether the November 22, 2021 PIN test caused the worker’s low back injury.
The standard of proof applied in WSIB cases is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.
When adjudicating whether proof of accident is present, WSIB decision-makers look for the “four immediates” (i.e. immediate pain, immediate reporting, immediate medical attention and immediate work disruption). Additional evidence, such as the presence of witnesses and continuity of complaint to
co-workers following the accident, is also considered, when appropriate.
For the following reasons, I find that proof of accident and compatibility are evident in this specific case:
The worker has consistently reported that they felt immediate pain upon completing the “core test” portion of the PIN test on November 22, 2021. Pain is a subjective condition. There is no evidence on record that the worker’s subjective reporting is not genuine;
There was a Wellness Co-Ordinator present when the worker completed the “core test”. Neither workplace party submitted a statement from the Wellness Co-Ordinator in relation to whether or not the worker complained of a “pinch/tweak” or pain in the low back upon completing the “core test”. Therefore, there is no contradictory evidence to the worker’s statements that they felt an immediate onset of low back pain upon completion of the “core test” on November 22, 2021;
The worker stated that they mentioned the November 22, 2021 workplace accident and low back injury to their Supervisor in “early December”. This means that the worker might have reported the accident to their Supervisor as early as 10 days following the date of injury (DOI). This is not
a significant delay in reporting, especially noting the worker’s explanation for how they dealt with the injury in the month after the DOI;
The worker provided a straightforward, reasonable, and easy to understand explanation about why they delayed in seeking medical attention following the DOI. They self-accommodated and modified their work duties (i.e. utilized a sit/stand workstation), implemented exercises to attempt to alleviate their low back condition (i.e. stretches and yoga), received massages, and utilized rest and ice;
In self-accommodating and modifying their regular work duties, the low back injury immediately disrupted the worker’s pre-accident job;
The worker sought initial medical attention when their low back pain significantly worsened, and formally reported the work-related accident and injury to the employer. This is not unusual with low back soft tissue injuries, especially in a case such as this one, where the pre-accident job was essentially sedentary in nature and the worker was able to self-accommodate and modify it. In the absence of an immediate, extremely severe injury, it is not out of the ordinary for an individual to wait to seek medical attention. In this specific case, the worker waited a month and sought medical attention when the injury became too severe for them to handle. I do not find this to be an unreasonable delay;
There is no evidence of a new, non-work-related accident before or after November 22, 2021, to which the low back injury could be attributed; and,
A low back muscular sprain/strain injury is compatible with the mechanics of the “core test”, as described by the worker. The medical documentation on record confirms the same.
The evidence on record leads me to find that the November 22, 2021 “core test” arose out of and occurred in the course of the worker’s employment. Furthermore, as proof of accident and compatibility are evident, I find that the November 22, 2021 “core test”, on a balance of probabilities, caused the low back injury. Therefore, I find that the worker had discharged the burden of proving the work-relatedness of their low back injury, and initial entitlement to a November 22, 2021 work-related low back sprain/strain injury is in order.
CONCLUSION
I find that initial entitlement to a November 22, 2021 low back sprain/strain injury is in order. The worker’s objection is, therefore, allowed.
DATED March 30, 2023.
C. da Cunha
Appeals Resolution Officer Appeals Services Division