Worker v. Employer, 2025 CanLII 39099

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20250026

OBJECTING PARTY:

worker

REPRESENTED by:

worker representative

RESPONDENT PARTY:

employer (Not Participating)

HEARING:

VIDEOCONFERENCE

HEARD by:

L. Cirillo, appeals resolution officer

DATED:

January 27, 2025

ISSUE

The worker objects to the Case Manager’s (CM’s) decision dated May 30, 2024, which denied initial entitlement to Vertigo.

BACKGROUND

On February 4, 2024, the worker was being re-trained on the OP machine. While driving the vehicle she began feeling dizzy and nauseous and later vomited. At the time, the worker had been working for the employer as an Associate (Stower) for 2 ½ years.

The worker reported that the OP machine is a small truck that elevates the arms or truck itself to assist the operator to stow items in different spots in the warehouse. She stated that moving her head up and down and side to side, while driving and stowing items caused her to develop dizziness and nausea.

The worker stated that she took a break and tried to perform the tasks again but had the same symptoms. She attempted the duties again the next day; however, reported the symptoms recurred. As a result, she was unable to continue working.

The worker sought medical attention with her family doctor, Dr. Kumarasamy on February 6, 2024, who indicated that the worker had vestibular dysfunction causing nausea, vomiting and dizziness. The physician suggested the worker participate in physiotherapy treatment and he also referred her to an Ear Nose and Throat (ENT) Specialist.

In his report dated March 8, 2024, Dr. Halik, ENT, outlined that the worker underwent various investigations, and he ultimately opined her dizziness, did not appear to be vestibular in nature and diagnosed her with benign paroxysmal positional vertigo (BPPV).

It was ultimately concluded that the diagnosis of BPPV was non-occupational and as a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated May 30, 2024.

The worker objected to the denial of initial entitlement; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker’s Position:

At the oral hearing, the worker testified to the following in part:

• On February 4, 2024, she was being re-trained on the OP machine, which is used to store things on the racking;
• The machine elevates the user up and down (up to 40 feet high) and moves along on a track;
• The worker stated that she used this machine when she started with the employer in early 2021 and had no issues with it;
• Between February 2022 and February 2024, she did not use the machine and she performed storing duties on the floor level. That is why her licence expired and why she had to be re-trained;
• The worker explained that when she commenced her training on that day, she felt dizzy while she was in the machine. She stated that she stopped and rested while others were being trained and she later tried again. The second time she tried, she felt dizziness and vomited;
• As a result, she told her supervisor that she was unable to do the training or use the machine;
• She could not understand why this was happening to her and it was something strange/new;
• The worker went back to her pervious duties for the rest of the day and then went home. The next day she returned and tried the training again; however, immediately felt the same symptoms;
• The worker stated she sought medical attention with her family doctor who sent her for blood work and a CT scan. He told her it was likely vertigo and that she needed to see an ENT specialist;
• The worker stated that the employer did not have any modified work for her;
• The worker testified that her symptoms continued to worsen even at home, and she could not perform her household chores;
• The worker outlined that in May 2024, the WSIB requested that she come back to work and perform modified duties, which she did until July 17, 2024; however, she could not continue and was taking days off and she ultimately went on medical leave;
• The worker stated she never had any issues like this in the past, nor did she have any problems with the machine when she initially used it;
• The worker described the training process. She stated that the machine goes around, goes up and then comes down. The total training time per person is about 20 minutes, but she had to stop after 10 minutes because she felt sick;
• The worker outlined that in order to operate the machine, you use a foot pedal to stop it and a button to lift and lower it. She stated that during the process she was constantly looking up and down and side to side to locate empty areas in the shelves, where she could stack the product. This was no different than what she had done in the past;
• The worker stated that the second time she tried the machine she did not go up and down, but she still had symptoms;
• The worker indicated that the employer asked her to complete the form and state that it was not work-related; however, she later told them that she would not write this and struck it off the form;
• The worker stated that she continued to have increasing symptoms after she left the workplace. She is not able to look up or down because it causes her to feel dizzy and she tries to keep her eyes at an eye level to minimize her symptoms;
• The worker stated that the ENT specialist told her she needs to do an MRI, which is in a few days, and she has since been referred to a Neurologist. The appointment is in October 2025;
• The worker stated that the ENT told her he examined two parts of her (vestibular) system, and the third part is the brain and that is why she needs an MRI. He stated it could be vertigo, but since the condition has worsened, she should see a neurologist;
• She is currently wearing a neck brace to help manage her symptoms

In his closing statement, the worker’s representative argued the following in part:

• The worker had been working for the employer since 2021 and was initially performing picking duties for about a year and then she moved to a floor level position;
• As a result, she had to be retrained on the picking machine in February 2024;
• He stated the worker had no issues with positional vertigo until then;
• He outlined that the picking machine required the worker to go up and down to place an item on the rack; however, this caused her to have issues where she was getting dizzy and caused her to throw up;
• While the worker will be seeing a neurologist in October 2025, as of this date, she has been diagnosed with BPPV and the medical supports that she has dizziness and nausea from bending down and looking and reaching up (April 4 & 7, 2024 medical notes);
• He submits the worker is a young working person and has a long working career; however, this condition continues to haunt her, and the symptoms continue in her daily life and affect her usual chores;
• He asks that initial entitlement be granted as the condition arose at work and in the course of her duties (i.e., training at work);
• In his view, this is a chance event incident, which is consistent with the work duties and for these reasons, health care and Loss of Earnings (LOE) benefits ought to be allowed

AUTHORITY

Section 13 Workplace Safety & Insurance Act (WSIA), 1997

Operational Policy Manual

Published

11-01-01 – Adjudicative Process 15-02-01 – Definition of an Accident

November 3, 2008 October 12, 2004

ANALYSIS

I have reviewed the record and considered the information and relevant legislation and operational policies in reaching this decision. In considering all of the evidence, including the testimony provided at the oral hearing, the medical reporting on file and the arguments presented, I find there is no initial entitlement for BPPV (vertigo) as a disablement, unexpected result of work duties on February 4, 2024.

The rationale for my decision is as follows.

The Workplace Safety & Insurance Board’s (WSIB) policy for the Adjudicative Process states in part:

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case.

Five point check system

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
• a worker
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history

Proof of accident

Decision-makers may consider the following when examining proof of accident,

• Does an accident or disablement situation exist?
• Are there any witnesses?
• Are there discrepancies in the date of accident and the date the worker stopped working?
• Was there any delay in the onset of symptoms or in seeking health care attention?

Diagnosis

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.

Operational Policy 15-02-01 states the following in part:

Accident includes

• a willful 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.

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.

As is outlined above, the worker claims that as a result of her job duties (i.e., training on the OP machine, which involved turning her head from side to side and looking upwards), she began to feel dizziness, which was ultimately diagnosed as vertigo.

While I acknowledge the arguments presented by the worker’s representative, in that the worker suffered a chance event type injury, according to the evidence provided by the worker, she claims to have suffered vertigo as a result of a disablement, unexpected result of work duties February 4, 2024. In my view, the accident history as described, did not involve an identifiable unintended event, such as a slip, trip or fall and therefore, the accident cannot be considered a chance event. Rather, the worker claims to have developed a disablement as an unexpected result of her working duties.

Under these circumstances, the worker does not have the benefit of the presumption clause under s. 13(2) of the WSIA, which states in part:

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.

As a result, the worker has the burden to prove the work-relatedness of her condition.

In reviewing the medical information on file, I note the following in part:

• Dr. Kumarasamy’s clinical notes:

• February 6, 2024 - Complains of vomiting when she was driving at work last 2 days; was having vomiting whenever driving; did not do driving at work after that; started to do it again and was not able to do last 2 days – refer for blood and urine tests and ultrasound (non-compensable condition);

• February 11, 2024 – came in to review lab reports (non-compensable); complains of feeling dizziness and nausea whenever going in an elevator, also getting the same symptoms when exposed to vibration, intermittent mild headache, no double vision; refer to Dr. Halik;

• February 22, 2024 – assessment dizziness – plan attending physician statement completed and given to patient; referred to vestibular rehabilitation exercise program; will be seen by ENT specialist; vestibular dysfunction causing nausea or vomiting and dizziness;

• February 23, 2024 – the employer did not accept the recommendation, recommended to be in medical leave until March 13; was feeling dizziness and vomiting when she was using elevators inside the warehouse; referred to ENT specialist and also referred to physio;

• February 27, 2024 – was confirmed having dizziness and nausea with neck movements; appointment with ENT March 8; did not get any dizziness during the routine work;

• April 7, 2024 – seen by ENT last week – diagnosed to have benign positional vertigo; patient complains of dizziness and nausea feeling by looking up and reaching up, turning in the bed and bending and getting up quickly; recommended to do BPPV exercise and has a follow up appointment on May 29; has been feeling increased nausea and dizziness when doing exercise;

• April 27, 2024 – complains of dizziness and nausea feeling with sudden movements of the head looking up and getting up quickly from sitting; diagnostic have benign postural vertigo; has been doing exercise; seen by ENT specialist and diagnosed to have BPPV and recommended modified duty without using forklift; the dizziness can be precipitated by sudden movements of the head or moving up and down

• Form 8 – Dr. Kumarasamy – April 27, 2024 – diagnosis: BPPV; refer to ENT and cardiologist;

• Report – Dr. Halik, ENT – March 8, 2024 – the handwritten note is highly illegible; however, I can decipher the following: difficult historian – non-smoker, no meds, no history –? 1/12 when working on lift at work; no history of dizziness; similar work 12/12 ago – no issues? symptoms: does not appear to be vestibular in nature -? BPV;

• Dr. Halik performed video-nystagmography (VNG) testing on March 8, 2024, which revealed – left positional vertigo. History of vertigo triggered by positional changes, looking up, reaching up, turning in bed, left Hallpike’s test positive (a test that healthcare providers use to diagnose benign paroxysmal positional vertigo) for BPV under VNG monitoring. Left particles repositioning procedure was performed under VNG monitoring;

• Letter – Dr. Halik, ENT – June 19, 2024 – patient is currently being investigated for a vestibular disorder. Due to this, the patient is most troubled when looking upwards and is very unsteady, especially when on a lift. Should refrain from activities where symptoms are exacerbated and remain off lifts/ladders – modified duties recommended

It is my understanding that benign paroxysmal positional vertigo (BPPV) (also known as benign positional vertigo – BPV) is the sudden sensation that one’s spinning or that the inside of one’s head is spinning.

BPPV causes brief episodes of mild to intense dizziness, which is usually triggered by specific changes in one’s head's position. This might occur when one tips their head up or down, when one lies down, or when one turns over or sits up in bed.

Often, there's no known cause for BPPV. This is called idiopathic BPPV.

When there is a known cause, BPPV is often associated with a minor to severe blow to the head or, rarely, damage that occurs during ear surgery or long periods positioned on one’s back, such as in a dentist chair. BPPV also has been associated with migraines.

Inner ear problems, which affect balance, are the most common causes of vertigo. It can also be caused by problems in certain parts of the brain or other diseases.

Inside one’s ear is a tiny organ called the vestibular labyrinth. It includes three loop-shaped structures (semicircular canals) that contain fluid and fine, hairlike sensors that monitor the head's rotation.

Other structures (otolith organs) in the ear monitor the head's movements — up and down, right and left, back and forth — and the head's position related to gravity. These otolith organs contain crystals that make one sensitive to gravity.

For many reasons, these crystals can become dislodged. When they become dislodged, they can move into one of the semicircular canals — especially while one is lying down. This causes the semicircular canal to become sensitive to head position changes it would normally not respond to, which is what makes one feel dizzy.

Benign paroxysmal positional vertigo occurs most often in people aged 50 and older but can occur at any age. BPPV is also more common in women than in men. A head injury or any other disorder of the balance organs of the ear may make one more susceptible to BPPV.

In reviewing the record, there is clear evidence of a worker and employer relationship. However, in considering the medical reporting and accident history provided by the worker, I find there is no compatibility between the job duties and the development of the worker’s BPPV. I come to this conclusion on the basis that there was no described head injury and/or the worker being positioned on her back for a long period of time. Instead, the medical supports that the worker continued to have ongoing, increasing symptoms even while she was away from the workplace (i.e., when turning over in bed), which further leads me to conclude that the job duties did not cause the condition. Also, while Dr. Halik indicated that the worker felt symptoms while she was at work, he did not opine that the condition was caused by the job duties.

In addition, the worker testified that she is currently waiting for additional testing (MRI) and an appointment with a neurologist who will be further investigating the cause of her condition.

Despite the fact that the worker developed symptoms while she was in the course of her duties (i.e., turning her head from side to side and looking upward), the condition is not occupational in nature and as a result, there is no initial entitlement to BPPV as a disablement, unexpected result of the worker’s duties on February 4, 2024.

CONCLUSION

I find there is no initial entitlement for BPPV (vertigo) as a disablement, unexpected result of work duties on February 4, 2024.

The worker’s objection is therefore, denied.

DATED January 27, 2025

L. Cirillo

Appeals Resolution Officer

Appeals Services Division