Worker v. Employer, 2024 CanLII 140463

32636873

REPRESENTED by:

VIDEOCONFERENCE – NOVEMBER 26, 2024

HEARD by:

DATED:

NOVEMBER 28, 2024

ISSUE

The worker, through their representative, objects to the Eligibility Adjudicator’s January 17, 2024 decision, which denied initial entitlement to benefits for neck, upper back, lower back, left shoulder, right shoulder, right arm, right wrist, right hand, right finger, left knee, and right thigh injuries.

BACKGROUND

On January 10, 2024, the Workplace Safety and Insurance Board received a Worker’s Report of Injury, which identified that the worker had suffered multiple injuries that occurred gradually over time while working on scaffolding and performing overhead work. The worker noted that their onset of symptoms began August 1, 2023, and that their last day worked was September 19, 2023. The employer stated that they were unaware of the injury until the Worker’s Report of Injury was filed and they subsequently submitted an Employer’s Report of Injury in January 2024.

During the hearing, the worker clarified that the areas of injury being claimed are their neck and upper back. In addition, the worker noted that they returned to modified duties in January 2024, for a brief period; however, they currently remain off work.

In their decision dated January 17, 2024, the Eligibility Adjudicator determined that the worker did not have initial entitlement to benefits for neck, upper back, lower back, left shoulder, right shoulder, right arm, right wrist, right hand, right finger, left knee, and right thigh injuries. In doing so, they identified that there were significant delays in reporting the workplace injury and the worker seeking medical attention. As a result, the Eligibility Adjudicator noted that they were unable to establish that the worker’s injuries arose out of or in the course of their employment. This decision was reconsidered on January 26, 2024 and July 24, 2024, and upheld.

The worker, through their representative, objected to the denial of initial entitlement to benefits, and this issue forms the basis of the appeal before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01, Adjudicative Process

November 3, 2008

ANALYSIS

I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find that the worker has initial entitlement to benefits for a neck strain and an upper back strain, but does not have initial entitlement to benefits for lower back, left shoulder, right shoulder, right arm, right wrist, right hand, right finger, left knee, and right thigh injuries.

Worker’s Position

During the worker’s opening statement, through their representative, they stated that they should have initial entitlement to benefits for an upper back and neck injury. They acknowledged that while there was a delay in reporting the injury to the employer, the available medical evidence confirms that a workplace injury occurred. In addition, they note that there were no other accidents or medical issues during the period in question, which could have resulted in their injury occurring.

In summary, the worker testified that their injury was a result of their regular job duties and, specifically, the type of scaffolding that they were using at the job site. They noted that they use an adaptive Hilti tool to shoot pins into concrete. The worker stated that this work is completed overhead and, generally, they use a scissor lift, which allows them to easily adjust the height of their work using a control switch. They identified that at this particular job site, they were using a baker’s scaffold. The worker explained that this type of scaffold is adjusted by hand and that rather than adjusting the height of the scaffolding depending on the overhead area they were pinning, they would just move the scaffold and bend or reach as needed. They stated that they are a taller individual, which was problematic.

The worker related that their symptoms began in August 2023 and that September 19, 2023, was the last date that they were able to work. They stated that after this date, their symptoms were too great and that when they did not resolve within a month, they sought medical attention.

During their testimony, the worker acknowledged their delays in filing a claim. They stated that they are paid piecework by the employer so they initially did not wish to file a claim, as they believed it would harm them being hired in the future. The worker stated that they applied for disability benefits through their union, but once the injury was identified as work-related within the medical information, they were informed to claim benefits through the Workplace Safety and Insurance Board.

In closing, the worker stated that they suffered a gradual onset-type injury as a result of the scaffolding used, which is supported by the medical information and the job duties they were asked to perform prior to being unable to continue working. As a result, they note that they should be entitled to benefits for neck and upper back injuries.

Employer’s Position

The employer, through their representative, provided an opening statement and identified that they support the current decision to deny initial entitlement to benefits.

The employer also cross-questioned the worker concerning issues regarding the worker’s delay in reporting, delay in seeking medical attention, and any pre-existing medical issues. The employer also confirmed that given that the worker is a pieceworker, they are able to seek other employment and that they did in fact work for a different employer prior to the onset of their injury.

The employer called a witness, who is the worker’s health and safety supervisor. They verified the job duties that the worker performs and also noted that the worker did not report any injury to their direct supervisor.

The employer provided a detailed closing statement and stated that proof of accident has not been established. They highlighted the worker’s delays in reporting, delays in seeking medical attention, and the amount of time that passed between the worker’s onset of symptoms and the worker’s being off work. They stated that the worker was also employed with other companies and that the injury could have occurred there. As a result, the employer identified that initial entitlement to benefits should be denied.

Assessment of Entitlement

All decision-makers use the same criteria for ruling on initial entitlement to benefits. This system is the "five point check system,” and is outlined in Operational Policy 11-01-01, Adjudicative Process, which states, in part, 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.

There is no dispute that the employer and worker criteria are met. Given that the worker is relating their injury to the performance of their regular job duties, and specifically the type of scaffolding used, I will consider the physical demands of their position to determine if a personal work-related injury occurred.

In reviewing the worker’s testimony, I accept that they were using a baker’s scaffold rather than a scissor lift, to which they are accustomed. In doing so, I recognize that no information has been provided to support that the worker was not using a baker’s scaffold at the job site in question. In reviewing the physical demands involved with the scaffolding, I accept that a baker’s scaffold would need to be adjusted manually in comparison to the scissor lift, which can be easily controlled electrically. Given the nature of the worker’s duties and the overhead work involved, I note that the use of a baker’s scaffold would involve considerably more bending, stooping, or reaching, as the worker would be less likely to take the time to properly adjust their height in comparison to the concrete they were pinning, as per the worker’s own testimony. While this practice would not be ideal for safety purposes, I accept the worker’s statements that as a pieceworker, they are often focused on completing as much work as possible in as little time, as this maximizes their earnings potential. In addition, the worker did confirm that they are a taller individual, which appeared consistent with my visualization of the worker during the video conference. As a result, I accept that they may be exposed to a greater amount of neck bending and stopping while reaching up to complete pinning. In addition, I note that this type of work was performed repetitively for prolonged periods of time and, generally, for the duration of the worker’s shift.

I acknowledge the employer’s position that as a pieceworker, the worker is employed with other companies and that an injury could have happened there. When reviewing this, I note that the worker was employed with the employer in April 2023. During this time, they reported that their back was hurting while using a baker’s scaffold and that they needed some time off work. The worker testified that when

they were able to, they worked for a different employer, but that this employer had a scissor lift, and they experienced no issues or pain while working. They added that following this, they again began working for the employer and did not have any other employment from their date of onset in August 2023 to when they stopped working in September 2023. The worker provided this information during their sworn testimony and there is no information to contradict that the only other employment they had was for a brief period in the Spring of 2023.

In reviewing the duties, I find the worker’s job and their use of a baker’s scaffold represent an injuring process, which was a significant contributing factor to the development of a personal work-related injury.

When considering if proof of accident is established, Operation Policy 11-01-01 states, in part, that decision-makers may consider if a disablement situation exists, if there were any witnesses, if there are discrepancies in the date of the accident and the date that the worker stopped working, and if there was a delay in the onset of symptoms or seeking health care. In establishing if a personal work-related injury occurred, I have already found that a disablement situation existed. I also find it is less relevant to consider if there were any witnesses, given the injury happened gradually over time and it is not in dispute that the worker was performing the duties that they have claimed to be the cause of their injury.

While the worker did testify to having back pain in April 2023, and missing time from work, they confirmed that this resolved and that they were able to continue their regular job after a break from their duties with the employer. The worker stated that they began to notice some pain at the beginning of August 2023, but that they continued working until September 19, 2023. They explained that on this date, they finished their shift, had considerable pain, and were unable to work following this. The worker then sought initial medical attention on October 18, 2023. At that time, the worker’s doctor diagnosed them with an upper back and neck strain, identified that the symptoms first began on September 18, 2023, that the injury was work-related, and that the worker had difficulty with overhead work and working on a baker’s scaffold.

I accept that although the worker’s neck or upper back may have been sore prior to September 19, 2023, due to the gradual nature of their injury, they would not have necessarily reported or documented the issue given that their symptoms were not so significant that they could no longer perform their regular work or required medical attention. Instead, I find that on September 19, 2023, the condition worsened to the extent that the worker felt significant pain and was unable to continue to work. Therefore, there are no significant discrepancies between the date of the accident and the date that the worker stopped working.

I acknowledge the employer’s position that there was both a delay in reporting the accident to the employer and a delay between the date of the accident and the worker’s initial medical attention on October 18, 2023. The worker testified that they assumed that their symptoms would resolve on their own and when they did not, they decided to follow up with their family physician. While I accept that the worker’s nearly one-month delay in seeking medical attention is problematic when establishing proof of an accident, I find it highly relevant that during this period, the worker did not continue to work with the employer and also did not have any other employment. This would support that during this time, the worker had ongoing symptoms and limitations, which prevented them from performing their regular job duties.

I do recognize that the worker delayed in reporting their injury to the employer. While reporting an incident to an employer is not explicitly mentioned as one of the criteria for consideration concerning proof of accident, I accept that it is relevant to consider this issue. While I have already established that the worker did report a work-related injury to their doctor in October 2023, it is important to note that, according to the worker’s testimony, it was in the context of filing for disability support through their union. The worker identified that once the disability provider identified that the worker was claiming a work- related issue, they were informed to file a claim with the Workplace Safety and Insurance Board. The

worker also testified that as a pieceworker, they did not wish to file for Workplace Safety and Insurance Board benefits, as they believed it would impact their future employment with the employer. I accept that this provides an explanation as to some of the delays in the work filing a claim; however, I again place significant weight on the fact that although the employer was not notified, the worker had already reported a workplace injury to their doctor and was not working.

While there is no information to support that the worker notified their direct supervisor of their injury in September 2023, I also note that in the past there appears to have been an informal injury reporting process between the worker and their foreman or supervisor. This is demonstrated by the text messages on file from April 2023, regarding the previous back injury, where the worker reports that they were unable to work, as they had hurt themselves using a baker scaffold; however, no Workplace Safety and Insurance Board claim was filled despite the worker losing time from work.

In consideration of all of the above, and specifically the initial medical reporting and the worker’s inability to perform their regular duties beyond September 19, 2023, I find that proof of accident has been established.

In regards to if compatibility of the diagnosis to the accident history is established, I accept the opinion of the worker’s family doctor who identified that the worker’s upper back strain and neck strain arose out of their employment. In doing so, I recognize their in-person assessment of the worker and that their reporting is consistent with the findings of the physiotherapist, who also began treating the worker in October 2023. There is also no other medical opinion on file that contradicts these findings. In addition, I have already previously established that the worker’s duties in combination with the use of a baker scaffold were a significant contributing factor to the development of a personal work-related injury. In consideration of this, I find the worker’s upper back and neck strain are compatible with the physical demands of the worker’s job duties.

Although the worker, through their representative, clarified during the hearing that they are only seeking entitlement to benefits for an upper back and neck injury, for completeness, I will also review their entitlement to benefits for the other areas of injury identified within the January 17, 2024 decision. In regards to the worker’s lower back, the worker testified that they have had residual pain over the years and back pain in April 2023, which they relate to their employment. However, the worker eventually resumed their regular job duties and did not seek medical attention at that time. In my review of the available information, I find that there is no evidence that the worker suffered a personal work-related injury to their lower back, as a result of the accident described during the hearing. In addition, there is no medical information or diagnoses to support that the worker has left shoulder, right shoulder, right arm, right wrist, right hand, right finger, left knee, and right thigh injuries. Therefore, I find that there is no entitlement to benefits for lower back, left shoulder, right shoulder, right arm, right wrist, right hand, right fingers, left knee, and right thigh injuries, as per Operational Policy 11-01-01, Adjudicative Process.

However, in consideration of all of the above, I find that in regards to the worker’s neck and upper back, all five criteria outlined in Operational Policy 11-01-01, Adjudicative Process, are met, and the worker has initial entitlement to benefits for an upper back strain and neck strain.

During the hearing, the worker testified about several diagnostic tests, which have been completed on their neck. However, this medical information is not available on file. In addition, the worker confirmed that they returned to modified duties in January 2024, but stopped working shortly after. At this time, there is no information concerning the dates of their return to work, the exact dates that modified duties were offered following the worker’s reporting of the injury, or if suitable modified work remains available to the worker. Therefore, I remit the nature and duration of benefits flowing from my decision that the worker has initial entitlement to benefits for a neck strain and an upper back strain to the Operating level.

The worker has the usual right to appeal any subsequent entitlement decisions made by the Operating level.

CONCLUSION

I find that the worker has initial entitlement to benefits for a neck strain and an upper back strain, but does not have initial entitlement to benefits for lower back, left shoulder, right shoulder, right arm, right wrist, right hand, right fingers, left knee, and right thigh injuries.

The worker’s objection is allowed-in-part.

DATED NOVEMBER 28, 2024

N. Clark

Appeals Resolution Officer Appeals Services Division