Worker v. Employer, 2023 CanLII 74907

20230095

worker

REPRESENTED by:

employer (not participating)

VIDEOCONFERENCE – June 20, 2023

HEARD by:

c. goegan, appeals resolution officer

DATED:

language interpreter

observer

JUNE 27, 2023

ISSUES

The worker is objecting to the February 26, 2019 decision of the Eligibility Adjudicator denying initial entitlement to multiple injuries to the lower legs, left knee and lower back.

BACKGROUND

On December 31, 2018, this then 55-year old truck driver registered a claim with the WSIB by completing and submitting a Worker’s Report of Injury (Form 6). The worker reported that on December 10, 2018, he was assisting his supervisor with fixing a hole on the roof of a tractor-trailer. While climbing down a ladder from the roof of the trailer, the worker fell from a significant height and sustained multiple injuries to his lower legs, left knee and lower back. The supervisor and a co-worker drove the worker to a hospital where he underwent surgery for a T-12 fracture with a spinal cord injury.

In the February 26, 2019 decision, the Eligibility Adjudicator denied initial entitlement in the claim. She determined the worker was not in the course of employment at the time of the accident as it occurred outside of working hours and after the worker had consumed alcohol. The Eligibility Adjudicator later reconsidered and upheld the denial of initial entitlement to benefits on July 18, 2019, March 13, 2020, and April 23, 2023.

The worker objected to the February 26, 2019 decision and the matter was referred to the Appeals Services Division for consideration.

PRELIMINARY MATTER

Prior to the hearing, the worker’s representative requested that he be allowed to submit a copy of a December 10, 2018 emergency report from the Hospital X emergency department. He submitted the report confirmed the people that brought the worker to the hospital gave information that the worker was injured at home. As I felt the report was relevant to the appeal, I accepted the report as evidence.

AUTHORITY

Operational Policy Manual

Published

11-01-01 – Adjudicative Process

15-02-02 – Accident in the Course of Employment

November 3, 2008

October 12, 2004

ANALYSIS

I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find initial entitlement is in order. I find the balance of the evidence establishes sufficient proof that the December 10, 2018 accident, resulting in a T-12 spinal fracture, spinal cord injury and T-10 to L2 fusion surgery occurred while the worker was in the course of his employment.

The Worker’s Position

During his closing arguments at the hearing, the worker’s representative submitted the facts of the case and the worker’s testimony clearly establish the worker sustained a significant back injury as the result of an accident that occurred in the course of employment.

He submitted the accident occurred on the employer’s premises, during paid working hours and while the worker was performing a job duty assigned by his supervisor. In support of his arguments, the representative submitted the employer acknowledged the worker was an employee and the accident occurred on their premises. He submitted the worker’s timesheet establishes the employer paid the worker during the time the accident occurred. The representative submitted the sworn testimony of the worker concerning his activities at the time of the accident outweighs the evidence in the record obtained from witnesses and the employer.

The representative maintained that as the circumstances relating to place, time and activity are all satisfied, the criteria for initial entitlement to benefits is in order.

The Worker’s Testimony

The worker testified that he worked for the employer as a truck driver for approximately four years before the accident. He described his job duties that consisted primarily of driving a transport truck on return trips from City A to City B. On occasion, the worker would also perform minor repairs to the vehicles. If there were any significant mechanical issues, he would notify a mechanic.

On December 9, 2018, the worker reported for work at the employer’s truck yard in City A and began work at 6:30am. He drove a truck from the employer’s yard to a delivery location in City B and returned on two separate trips with no break in between. He explained that as it was a weekend, there was less traffic on the road and he was able to complete both round trips in approximately

12-hours. After completing the second trip, the worker remained on the employer’s premises to attend a truck and trailer safety class with a number of other drivers. He and the other participants ate pizza before the class began and the class ended at around 9:30pm. The worker testified that a Canadian safety inspector taught the class and none of the participants received payment for attending.

After the training ended, the worker went to his personal vehicle and realized he left his wallet inside the truck he drove earlier that day. He returned to the truck yard and encountered his supervisor “R”.

The supervisor told the worker he needed to remain at work to assist in repairing a hole in the roof of one of the trailers. The worker was questioned during the hearing about why he did not refuse the repair work given his job was truck driver. He testified that R was the boss who could fire him for refusing work.

The worker indicated he was not the only person completing the trailer repairs. He stated that “P”, “T” and “A”, were also involved in performing the repair work. R gave everyone a beer before the work began. The worker testified that after drinking the beer he climbed a “two-part” extension ladder onto the roof of the trailer and there were two or three holes requiring repair. The worker explained he and the others repaired the holes using glue, a drill and a nail gun to fasten pieces of tin sheet metal over the holes. The worker testified that he performed the drilling and remained on the roof of the trailer for the entire duration of the repair work while the others went up and down the ladder to retrieve supplies.

After finishing the repair work, the worker climbed down the ladder from the roof of the trailer. While descending, his leg went through the ladder and he fell to the ground below. The worker testified that his leg went through the part of the ladder that was touching the trailer and not the part that was in contact with the ground. After the fall, the worker remained on the ground in significant pain while the others attended to him. He indicated that R came over and questioned why he was laying around. He testified that the co-workers picked him up and attempted to put him in a car; however, the car was too small. They subsequently moved him to a trailer, as it was very cold outside. After moving him to the trailer, the worker explained the co-workers next moved him into the back of a “CRV”. Under questioning, the worker testified that he asked the others to call an ambulance for him but R instructed them not to. He also indicated that thought about calling an ambulance himself, however, he did not have his cell phone.

He asked the co-workers to give him a phone but they would not.

Once he was in the CRV, the worker explained that R and A first drove him to R’s house and got him a pillow. They next drove on the highway and took him to the hospital in City C. The worker did not know why they drove to the hospital in City C. After arriving at the hospital, they placed him in a wheelchair. The worker indicated he was “shouting” from pain by that point and was transferred to a stretcher. The worker testified that when he arrived at the hospital, R and A gave all of the information to hospital staff. He stated he told the doctor that he fell from a ladder but had a difficult time understanding the doctor and communicating with him.

The worker testified that he had surgery and remained in Hospital X for two or three days. He was moved to a rehabilitation centre where he remained for approximately two and a half months. The worker explained that during his stay at the rehabilitation hospital he told the doctor he fell while climbing down the ladder from a trailer. It was then he learned the doctor thought he fell off the ladder at home while hanging Christmas lights. The worker testified that a woman at the hospital asked him to clarify how the injury occurred. When he confirmed he fell in the employer’s truck yard, she instructed him to report the accident to the social worker.

During his stay at the rehabilitation hospital, the worker completed a handwritten timesheet and sent it to the employer electronically. When questioned how he did this, the worker explained that he took a picture of the timesheet and sent it to the company. When asked if this was his usual practice, the worker testified that he would typically complete a company form cataloguing his work hours; however, he did not have a form available to him at the hospital. The worker explained that for the day of the accident, he submitted his time for the two return trips to City B and the time he spent working on the trailer. He recorded the end of his shift as 1:00 am to account for trailer repair work. He did not submit any work hours for the safety training class because it was unpaid training.

The worker testified that after he submitted his timesheet to the employer, R visited him at the rehabilitation hospital and brought him a paycheque for the week he worked prior to the accident. The employer paid him for 97 hours for the week, including the 16 hours he worked on the day of his injury.

The worker testified that he explained the severity of his spine injury to R at the rehabilitation hospital. The worker stated R informed him that he did not realize how serious the injury was at the time.

R promised the worker he would have his job back after recovering from the injury. The worker testified that following his discharge from the rehabilitation hospital, he did not return to any work. He testified that his lower body is “broken” and his legs no longer function well. He supported himself financially with Ontario Disability Support Plan benefits. He currently receives Canada Pension Plan Disability Benefits.

Initial Entitlement

Policy 11-01-01 (Adjudicative Process), states that 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

With respect to the first two criteria in Policy 11-01-01 (Adjudicative Process), the Operating Area has accepted the validity of both the worker and the employer in this case.

In regards to the second and third criteria, when considering whether a personal injury by accident occurred in the course of a worker’s employment, Policy 15-02-02 (Accident in the Course of Employment) requires decision-makers to consider the surrounding circumstances relating to place, time and activity to determine if the accident was work-related.

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. In this case, although the worker is a truck driver and did not necessarily have a fixed workplace, I find the criterion of “place” is satisfied as the injury occurred on the employer’s premises.

There was initially some confusion over the location of the accident as a December 12, 2018 medical report from Dr. Trinos at Hospital X stated the worker fell at home while hanging Christmas lights. The worker testified he fell from a ladder on the employer’s premises. He also testified that R and A gave his information to the staff at Hospital X upon his arrival and language was a barrier when communicating with the doctor. I accept the worker’s testimony concerning the accident location. A February 1, 2019 statement from the supervisor R, interviews with witnesses conducted by a WSIB Investigator in December 2021 as well as a March 29, 2023 witness statement from T confirm the worker’s testimony that the accident occurred on the employer’s premises.

While I will discuss the weight I place on the witness statements when considering the criteria of “time” and “activity” later in this decision, I accept the criteria of “place” is met.

According to Policy 15-02-02 (Accident in the Course of Employment), 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.

I find it more probable than not that the accident occurred during paid working hours.

According to a December 10, 2018 emergency room triage report, friends brought the worker to the Hospital X. The hospital admitted the worker at 1:56 am on December 10, 2018. Two witnesses interviewed by a WSIB Investigator in December 2021 reported they drove the worker to the hospital. Since the accident occurred on the employer’s premises in City A and co-workers placed the worker in a vehicle and drove him to the hospital in City C, I find it more probable than not the accident occurred before 1:00 am.

The worker testified that the employer paid him for 16 hours of work on December 9, 2018. The work included two round trips to City B (quicker than usual because of lighter weekend traffic) totalling 12-hours and the time he spent repairing the trailer. He did not submit for the time he spent in safety training because it was unpaid. The worker testified that he recorded the end of his shift as 1:00 am on his timesheet and the employer paid him for the time. After reviewing the worker’s pay statement, I find it is consistent with the timesheet he submitted to the employer for the period from December 2, 2018 to December 9, 2018. As the worker’s testimony is consistent with the timesheet and the pay statement,

I accept his testimony and conclude the employer paid him for the hours worked until 1:00 am on December 10, 2018.

I noted there is information in the record that was contradictory to testimony given by the worker concerning hours of work reported for December 9, 2018. The December 2021 witness statements obtained by the WSIB Investigator stated the accident occurred outside of working hours. In addition, a March 16, 2023 letter from the employer’s safety and compliance manager also contradicted the worker’s testimony. The correspondence stated the 16 hours of payment for December 9, 2018 consisted of two trips to City B (approximately 15-hours) followed by payment for a one-hour safety meeting.

When considering the contradictory information, however, I placed more weight the worker’s testimony concerning his paid hours of work. The worker testified under oath in a straightforward and credible manner at the hearing. In my view, his explanation for the hours he worked on December 9, 2018 is reasonable. I find the anonymous witness statements are completely inconsistent with the 16 hours of payment the worker actually received from the employer. Similarly, I placed little weight on the

March 16, 2023 correspondence from the safety and compliance manager. I note that when the Eligibility Adjudicator first contacted him on March 13, 2023, the safety and compliance manager advised the Eligibility Adjudicator he did not work for the employer in 2018. He informed the Eligibility Adjudicator he would have to obtain information concerning the accident directly from the supervisor R. With respect to the information obtained directly from R, I place little weight on that information concerning the accident. When a Claims Registration Representative from the WSIB first contacted R on January 9, 2019 concerning the accident that resulted in a significant injury to the worker, R denied that the worker was an employee of the company.

Therefore, I accept the worker’s testimony over the anonymous witness statements and the evidence given by the safety and compliance manager when considering the criterion of “time”. I find it more probable than not the accident occurred before 1:00 am on December 10, 2018. Since I accept the employer paid the worker until 1:00 am on December 10, 2018, I find it is more probable than not the accident occurred during paid working hours.

The final and most important of the three criteria in Policy 15-02-02 (Accident in the Course of Employment) is activity. If a personal injury by accident occurs while a worker is engaged in the performance of a work-related job duty or in an activity reasonably incidental to (related to) the employment, then the accident generally will have occurred in the course of employment.

I find it more probable than not the worker was performing a work-related activity at the time of the accident.

When considering the activity of the worker on the date of the injury, I considered both the evidence given by the worker and information obtained from the employer and several witnesses concerning the accident.

In a February 1, 2019 memo, the Eligibility Adjudicator spoke with the supervisor R concerning the accident. R advised the Eligibility Adjudicator the worker did not work past 9:00 pm, was lying to obtain benefits from the WSIB, was drinking with co-workers in the yard and was never asked to fix holes on the trailer.

I also reviewed the two statements obtained during witness interviews conducted by the WSIB Investigator in December 2021.

The first interview, completed on December 1, 2021 indicated the following:

The worker was an independent operator and not an employee.
On the day of the accident the worker finished work at 6:00 pm and had health and safety training until 9:00 pm.
The worker was drinking in the truck yard after training and fell off a truck at 1:00 am.
The worker was not working at the time of the injury
He drove the worker to the hospital
The worker’s time card shows he finished work at 6:00 pm
The worker was not paid past 6:00 pm

The WSIB Investigator completed the second interview on December 2, 2021 and noted:

The witness was present when the worker fell off a truck in the yard
The witness stated that he, “A” and the worker were drinking in the yard after the training and the worker got on the truck and fell off
He states that none of them were working at the time as it was 1:00am, much later than their work hours
He assisted in bringing the worker to the hospital

Finally, I reviewed a March 29, 2023 memo in which the Eligibility Adjudicator spoke with the witness T and obtained the following information:

On the date of injury, everyone stayed in the yard after the safety meeting just talking
The worker and another two drivers brought 1-2 beer
The worker put up a ladder and went up and down. They didn’t know what the worker was doing but they just fell down and it happened in the work yard
Nobody was working and the injury happened at around 5:30 and 6:00 pm.
Their other friends took the worker to the hospital but they didn’t remember the name

After considering the information obtained from R and the witnesses, however, I place more weight on the evidence given by the worker concerning his activity at the time of the accident.

As noted previously, I place little weight on the information obtained from the supervisor R. He initially denied the worker was an employee of the company when first contacted by the Claims Registration Representative concerning the accident.

I also find the evidence given by the worker outweighs the 2021 witness statements. While both witnesses indicated the worker was not working when he fell off the truck, I find it significant that neither witness provided any information concerning the reason the worker had climbed onto a truck at 1:00 am on December 10, 2018. The first witness reported the worker was not paid past 6:00 pm, which is inconsistent with the worker’s pay statement. The second statement is vague and simply suggests the worker “got on the truck and fell off”. In contrast to the witness statements, the worker testified in a straightforward manner at the hearing and was not evasive when answering questions from his representative or the Appeals Resolution Officer. He consistently reported that he fell while descending a ladder after he finished repairing holes in the roof of a trailer. As such, I accept the worker’s straightforward testimony that he was on the roof of the trailer repairing holes immediately before the accident.

Finally, I place little weight on the information given to the Eligibility Adjudicator by T on March 29, 2023. He advised the Eligibility Adjudicator that the accident happened between 5:30 and 6:00 pm. When considering the worker’s testimony, the timesheet for December 9, 2018 and the worker’s pay statement, the worker would have been either driving from City B or attending safety training at that time. Accordingly, I conclude the worker’s testimony carries more weight than the March 29, 2023 memo.

As I place more weight on the worker’s testimony, I find it more probable than not he was performing a work-related activity at the time of the accident. In reaching that conclusion, I also considered whether alcohol played a role in the accident as Section 17 of the Workplace Safety and Insurance Act stipulates that there is no entitlement to benefits if an injury is solely attributable to the serious and willful misconduct of a worker. The worker testified that “R” gave him one beer that he consumed before performing the trailer repair work. Both the December 10, 2018 emergency report and the

December 12, 2018 report from Dr. Trinos state the worker drank two beers. Setting aside that the worker testified his supervisor supplied the beer, I find the worker’s consumption of alcohol was not a significant contributing factor in the fall from the ladder. Dr. Trinos made no mention of the worker appearing impaired in his report. The laboratory investigations completed after the accident were negative for drug use and did not reveal the worker had a blood alcohol level consistent with intoxication. Therefore, I conclude alcohol was not a contributing factor in the accident.

The final criterion in Policy 11-01-01 (Adjudicative Process) is medical compatibility between the diagnosis and the accident history. In this case, the medical evidence establishes the primary injury the worker sustained was a burst fracture of the T-12 vertebral body that required a T-10 to L2 fusion.

A February 1, 2019 Health Professional’s Report (Form 8) from Dr. Oshidari, a physical medicine specialist, also had the diagnosis of incomplete paraplegia in relation to a spinal cord injury from the fracture. In my view, a burst fracture of one of the vertebrae of the spine and an associated spinal cord injury is medically compatible with falling from a ladder and landing on a hard surface. I find the fifth criterion of medical compatibility is established.

In conclusion, I find on a balance of probabilities that the five points required for an allowable claim in Policy 11-01-01 (Adjudicative Process) have been satisfied and initial entitlement is appropriate.

CONCLUSION

I conclude the worker has initial entitlement to the burst fracture of the T-12 vertebrae resulting in the spinal cord injury and the T-10 to L2 fusion as a result of the December 10, 2018 accident.

The nature and duration of any benefits flowing from this decision is left to the discretion of the Operating Area subject to the usual rights of appeal.

The worker’s objection is allowed.

DATED June 27, 2023

C. Goegan

Appeals Resolution Officer

Appeals Services Division