Worker v. Employer, 2024 CanLII 140472

20250007

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 30, 2024

ISSUE

The worker objects to the Eligibility Adjudicator’s May 31, 2023 decision which denied initial entitlement under the claim to a right chest injury.

BACKGROUND

On May 12, 2023, while employed as a Police Constable in a community outreach role, the worker reported to their employer that they developed a right chest infection/seroma related to wearing their police vest on May 11, 2023. The worker was required to wear the vest for several hours on May 11, 2023 while attending meetings. The worker had been with their employer since April 2002.

Of significance, the worker was diagnosed with non-occupationally related breast cancer in 2015 for which they subsequently underwent a lumpectomy, chemotherapy, and radiation. The file medical evidence confirms the worker’s right breast was sore post-surgery, and that the soreness diminished over the next couple of years.

Initially the worker was accommodated at work, which included not being required to wear their vest. However, from 2018 to the present, medical reports confirm the worker complained of sporadic right breast soreness, bruising, and seroma, which they attributed to occasionally wearing their vest.

The worker has two past claims for similar accident histories and diagnoses, one established and allowed in October 2018, and another established and denied in July 2022.

Eligibility Adjudicator’s decision

According to the Eligibility Adjudicator’s May 31, 2023 decision under the present claim, entitlement to a chest injury was denied on the basis the worker’s accident history of wearing their service vest was not compatible with their diagnosis.

Worker’s/Employer's positions

The worker’s representative (WR) argued the worker’s injury was very much compatible with the reported accident history, which was supported in the claim file medical information. The employer confirmed they had no submissions to provide.

AUTHORITY

Operational Policy Manual

11-01-01 , Adjudicative Process

15-02-01 , Definition of an Accident 15-02-03, Pre-existing Conditions

ANALYSIS

I find the worker has initial entitlement for right breast cellulitis under the claim. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable Policy. My analysis and findings are outlined below.

Policy 15-02-01, Definition of an Accident, provides a definition of an accident, which includes:

Chance event

A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.

Disablement

The definition of disablement includes

a condition that emerges gradually over time
an unexpected result of working duties.

The Worker’s Report of Injury/Disease and the Employer’s Report of Injury/Disease both confirm the worker developed an injury to their breast, i.e. infection, related to wearing their vest for several hours the day before. This accident history would be consistent with ‘an unexpected result of working duties’.

Policy 11-01-01, Adjudicative Process, sets out the criteria for ruling on initial entitlement as follows:

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

An allowable claim must have the following five points

an employer (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

In reviewing the above criteria for an allowable claim, points 1 and 2 of the above policy are clearly established as there is an employer and a worker. It is now necessary to review whether the remaining three points in the ‘five point check system’ have been established.

To this end, I reviewed all the file medical reports, however, only the most pertinent medical reports were referenced below.

May 12, 2023 Hospital A: “per patient: leaking area under right breast, also a bit sore, swollen since last night, “dripped out of a dimple”; was wearing vest as police offer and was wearing vest all day; today less tender; had lumpectomy 8 years ago, also chemo and rads; Infection to breast tissue on that side in the past, usual [sic] treated with antibiotics and not to wear vest for awhile, Physical exam: right breast inferior median, skin thickening, spont. serous sang discharge, no erythema, tender with expression, no fluence, no palpable mass, no nipple inversion; dx: breast cellulitis, likely d/c with antibiotics”.
May 16, 2023 clinical note: “ May 12 in ER; police officer has to wear vest but painful and keeps causing infections and just pain to wear, Sept had infection r. breast, went to ER, had CT clear, dx abscess, and put on antibiotics, has happened 4 times in past from wearing vest”.
May 29, 2023 clinical note: “… She has not [sic] been wearing her vest. Discharge from breast. She had an ultrasound. No fluid pocket. Likely caused by the pressure from her vest. No episodes while she was not wearing vest. … She is still having breast pain but no redness or drainage now.”
May 29, 2023 Form 8: “Was required to wear her police vest. Pressure and weight caused seroma rupture. Diagnosis: Seroma drainage. Likely related to vest pressure and weight” Duties as tolerated. [IW] cannot wear the vest. Accommodations required. Unable to work at this time. Continues to be symptomatic. Breast pain”.
June 9, 2023 clinical note: “… She has had ongoing issues with her right breast since 2016. Seen by on-call. Illness seems to correlate to times when she is required to wear her police visit [sic]. She was accommodated for about 4 years then was required to retrain. Breast issues started again. … A: Chronic right breast issues post breast surgery for cancer.

Having carefully reviewed the file evidence, I concur with the WR and find the worker sustained a personal work-related injury on May 11, 2023. Not only does the medical information confirm the diagnosed right breast cellulitis is related to having worn the police vest for a period of time, it also confirms this has occurred several times in the past related to the same accident history. As is noted in the June 9, 2023 clinical note, the worker’s illness appeared to correlate to times when they were required to wear their police vest. Of importance, the medical information does not appear to support the breast cellulitis occurred as a result of any other cause or intervening event.

Although I acknowledge the medical evidence confirms the injury only occurred following the worker’s lumpectomy, initial entitlement is not precluded on the basis of a pre-existing condition. As is noted in policy 15-02-03, Pre-existing Conditions, consistent with the ‘thin skill’ doctrine, i.e. that one must take victims of an accident as they are, the fact that a worker may have a pre-existing condition that could

increase susceptibility to injury/disease is not considered during the initial determination of entitlement in a claim. In such cases, workers are compensated for the work-related injury/disease and the claim is not denied due to the existence of a pre-existing condition. The “thin skull” and “crumbling skull” doctrines are well-established legal principles that are components of decision-making at the WSIB.

Consequently, for the reasons indicated above, I conclude the third criterion in Policy 11-01-01, i.e. personal work-related injury, has been established.

With respect to the fourth criterion, i.e. proof of accident, there does not appear to be any dispute that the worker has met this criterion. I accept the worker reported their injury to their employer the following day, that they also sought medical attention the following day, and that there were no discrepancies or delays between the date of accident and when the worker ceased working. As a result, I therefore conclude the worker has met the fourth criterion.

The last criterion pertains to compatibility of the worker’s diagnosis to their accident history. This particular criterion is tied to the ‘proof of accident’ criterion. Having reviewed the accident history under the claim, and having regard for the worker’s pre-existing lumpectomy which likely rendered them more susceptible to this particular injury, I accept that wearing the vest for several hours is compatible with the diagnosed right breast cellulitis. Once again, the medical reports referenced above confirm the worker’s cellulitis is related to having worn the police vest for a period of time, and that this has been a recurring issue. The medical information does not support their cellulitis occurred as a result of any other cause or intervening event. I accept it is more likely than not that the worker’s job duties, which required them to wear a police vest, significantly contributed to the development of their right breast cellulitis.

Consequently, I find the worker’s accident history is compatible with their diagnosis.

In summary, as all five points in the five-point check system have been established, I therefore conclude the worker has entitlement to the diagnosed right breast cellulitis.

With respect to entitlement to loss of earnings (LOE) benefits, I will defer this particular issue to the operating area as it not precisely clear if/when modified work was offered to the worker, which would have included not being required to wear their vest at work. Furthermore, I note the WR has not made any arguments in their submission with respect to entitlement to LOE benefits.

CONCLUSION

The worker’s objection is allowed.

The worker has entitlement to right breast cellulitis under the claim.

DATED OCTOBER 30, 2024

L. Diaz

Appeals Resolution Officer Appeals Services Division