Worker v. Employer, 2023 CanLII 89188

20230099

HEARD by:

DATED:

JULY 5, 2023

ISSUE

The worker is objecting to the Eligibility Adjudicator’s (EA) decision dated July 11, 2022 in which initial entitlement to benefits for a neck injury was denied.

BACKGROUND

On April 26, 2022, this mechanic was trying to remove a seal from an engine on which they were working. When they applied a flame to the seal, it ignited some fumes. There was a small explosion, propelling the seal outward. It struck the worker in the area of their chest and left shoulder. Initial entitlement to benefits for a left shoulder injury was allowed under this claim.

The worker performed modified work after the date of injury. Their employment was terminated as of May 4, 2022. It was determined that the employer did not breach their re-employment obligations. This issue is not before me.

The worker also claimed to have injured their neck in the workplace accident. As explained in correspondence dated July 11, 2022, entitlement to benefits for a neck injury was denied. The EA was unable to establish that the worker sustained a neck injury in the workplace accident.

This decision was reconsidered and upheld on December 20, 2022, April 19, 2023 and May 4, 2023.

Worker’s Position

The worker argues in part that they mentioned having a neck injury in the accident investigation report completed on the date of injury. When they were struck by the object, they jerked their head, injuring their neck. While they did not feel neck pain until several days later, this is not unusual for a whiplash-type injury.

AUTHORITY

Operational Policy

Published

11-01-01 Adjudicative Process

November 3, 2008

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policy in reaching this decision. I find that the worker is not entitled to benefits for a neck injury under this claim. I am unable to establish that the worker sustained a neck injury in the workplace accident.

WSIB Operational Policy 11-01-01 Adjudicative Process states in part that workers are entitled to benefits for personal injuries sustained in an accident arising out of and in the course of their employment. There must be proof that the accident occurred and that it caused the diagnosed injury. Compatibility between the mechanism of injury and the diagnosis must also be established.

On April 26, 2022, this mechanic was attempting to remove a rubber seal from an engine. They applied a solvent to the seal. They then used a blowtorch on the seal. This caused fumes to ignite, resulting in the seal exploding. The seal struck the worker in the area of their left collarbone, chest and face. This was the accident history reported by the worker to the Eligibility Adjudicator (EA) on June 28, 2022.

An accident investigation was completed on the date of injury. On this document, the worker stated that they were struck in the chest by the seal. Under “body parts effected”, the worker checked “body (not specified”, “head (not specified)”, “shoulder – L”, and “neck – throat”.

The worker argues in part that the accident investigation report supports that they immediately reported having injured their neck in the workplace accident. When viewed in the context of the other claim file evidence that will be outlined below, this is not my conclusion. The worker reportedly sustained facial injuries. They were struck in the chest and collarbone area. The reference to “neck – throat” on the accident investigation form could have meant the throat area. I note that the neck was not identified as an area of injury on the Employer’s Report of Injury/Disease (Form 7) completed the same day as the accident investigation. There is no Worker’s Report of Injury/Disease (Form 6) in the claim file.

The worker sought medical attention on the date of injury. The physician who completed the Health Professional’s Report (Form 8) did not indicate that the worker injured their neck in the workplace accident. The worker was diagnosed with left shoulder and facial injuries. An x-ray was performed on the worker’s left shoulder.

The worker continued to work after the date of injury. They performed modified work duties for the employer. There is no evidence to support that the worker reported a neck injury to the employer in the days following the accident.

When the worker spoke to the EA on June 28, 2022, they said that they did not develop pain in their neck until May 2, 2022. The worker’s employment was terminated on May 4, 2022. There was an opportunity for them to report their neck pain that reportedly began May 2, 2022 to their employer. This also supports that the worker did not report having injured their neck on the accident investigation, as they did not have any neck pain at the time it was completed.

The worker saw the doctor again on May 4, 2022. The physician completed a Functional Abilities Form (FAF) stating that the worker was fit to return to work with no restrictions. The neck was not identified as an area of injury on the FAF. If the worker had developed neck pain by May 2, 2022 that later reportedly

worsened after June 2022, I presume the doctor would have indicated this on the FAF, and perhaps not have cleared the worker for unrestricted work.

In their submission attached to the Appeal Readiness Form (ARF), the worker states that their neck pain worsened after their employment was terminated. There is no evidence to support that they sought medical attention for a neck condition until June 7, 2022. An x-ray of the cervical spine performed on this date showed degenerative changes with evidence of muscle spasm.

Dr. Cameron’s chart note from June 13, 2022 states that the worker reported having pain on the right side of their neck. The chart note is somewhat difficult to read. The EA attempted to get these notes transcribed but did not receive a printed copy. The note does appear to state that the worker had reduced range of motion (ROM) of the neck. Their shoulder was improved. The note states, “not likely related to injury WCB,” which I presume is a reference to the WSIB claim, previously known as the Workers’ Compensation Board. My reading of this note is that the physician did not believe that the worker’s neck condition was related to the workplace accident that occurred seven weeks earlier.

An MRI of the worker’s cervical spine performed on August 5, 2022 showed mild degenerative disc disease (DDD) and central canal stenosis at the C5-6 level. There was also some osteoarthritis (OA).

Dr. Cameron later submitted two notes on the worker’s behalf. On August 19, 2022, they wrote that the worker strained both their neck and left shoulder in the workplace accident. Attention was initially focused on the shoulder injury, until the neck pain became more prominent. On November 10, 2022, Dr. Cameron wrote that the worker was seen for neck and shoulder injuries in May 2022, and has been treated with nerve blocks since that time. There are no chart notes or reports from Dr. Cameron from May 2022 in the claim file.

The worker states that they delayed seeking medical attention for their neck injury was because it was difficult for them to be referred for medical assessments. Their family doctor (FD) had retired in the

pre-accident period. They also said that medical treatment was delayed “during the height of the Covid epidemic.” The worker was able to get an x-ray on their left shoulder on the date of injury. They were able to see a doctor on this date, and again on May 4, 2022. The June 7, 2022 x-ray report states that Dr.

Datta was the referring physician. There are no reports from this physician on file that may have spoken to what the worker reported regarding the onset of their neck symptoms. Dr. Cameron, orthopaedic surgeon, assessed the worker on June 13, 2022. The timing of these medical interventions does not support the worker’s position that there were significant barriers to them obtaining medical attention for their injuries.

The worker also states that they did not know that their WSIB claim had been approved, and did not know how to make a report to the WSIB. A letter was sent to the worker on April 27, 2022 notifying them that the claim for health care benefits for their shoulder injury had been approved. The address on this letter is the same as the one on the other documents that were sent to the worker. The worker has numerous prior WSIB claims.

The worker did not contact the WSIB until June 28, 2022. This was nearly two months after their employment had been terminated. If they had sustained a neck injury in the workplace accident of April 26, 2022 that required a consultation with an orthopaedic surgeon and the administration of nerve blocks to the cervical spine area, I believe that they would have made this known earlier.

The worker states that pain from a whiplash injury can begin days after the event. In my opinion, being struck in the upper left shoulder and chest area would not likely cause a whiplash injury. If the impact was strong enough to do so, the clinical findings for the chest and shoulder would likely have been much more significant. The shoulder and chest injuries were minor and not really disabling. The worker was cleared to return to work as a mechanic approximately one week after they were injured.

Based on the available information, I cannot establish that the worker sustained a neck injury in the workplace accident of April 26, 2022. The first mention of a neck condition in the medical reporting is June 7, 2022, six weeks after the date of injury. The worker states that they did not have opportunity to report a neck injury to the employer or the WSIB in the post-accident period, but this is not accurate.

Compatibility between the mechanism of injury and the worker’s neck condition is not established.

CONCLUSION

The worker is not entitled to benefits for a neck injury under this claim. The objection is denied.

DATED July 5, 2023

C. Marr

Appeals Resolution Officer Appeals Services Division