WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2052/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2052/13 BEFORE: K. Cooper : Vice-Chair B. M. Young : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: October 25, 2013 at Hamilton Oral DATE OF DECISION: April 8, 2014 NEUTRAL CITATION: 2014 ONWSIAT 760 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated April 26, 2012 APPEARANCES: For the worker: For the employer: Interpreter: R. Seguin, Office of the Worker Adviser D. Iwaszko, Paralegal N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2052/13 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that she did not have entitlement for a low back injury as a result of a workplace accident. The ARO rendered a decision following an oral hearing. [2] The worker made a claim to the Board that on November 11, 2010 she injured her lower back while wiping desks in a classroom. She claimed that she had over extended her back causing pain. The claim was initially denied on the basis of delay in reporting the incident and seeking medical attention. [3] In his decision, the ARO noted that the accident date was November 12, 2010, but that the worker did not report the accident to her employer until December 14, The claim was created in January 2011 when a Form 8 from her doctor arrived at the Board, and the employer s Form 7 in March The ARO also noted that the worker had not sought initial medical treatment until November 23, Based on these delays the ARO upheld the Claims Adjudicator s (CA) decision leading to the appeal herein. (ii) Issues [4] The sole issue is whether the worker has entitlement for a low back injury as the result of a workplace accident on November 11, (iii) Background [5] The following are the basic facts. [6] The now 68-year-old worker started as a cleaner with the accident employer in November (a) Medical reports [7] An Emergency Department record dated November 12, 2010 noted the worker had attended for back pain. It stated that the worker was complaining of back and right hip pain x 1 day, and went on to record that the worker had similar attacks before related to her work at a school in cleaning. Appended to this record is a Triage Assessment Form which noted right side lower back pain started 2 days ago after working as cleaner, and noted that last pm pain radiating around right side. [8] A Functional Abilities Form (FAF) dated December 9, 2010 was completed by Dr. Tatzel, the worker s family physician. It indicated that the worker was unable to work at all. [9] A Form 8, dated December 16, 2010 was completed by Dr. Tatzel. It noted the date of first treatment for the low back was November 23, He noted that it was a gradual onset pain from bending at work. (b) Board forms [10] A Form 6, dated February 28, 2011, noted the accident date as November 13, 2010, and indicated that she reported it to her employer maybe a week later. It indicated that she had hurt her low back while bending over to clean a desk. The worker indicated that she had told W,

3 Page: 2 Decision No. 2052/13 whom she viewed as her immediate supervisor, on the Monday after the accident and was told it was too late to report the accident as work related. [11] A Form 7, dated March 17, 2011 indicated that the injury date as set out in the Form 6 was a non-work day Saturday. It noted the worker was absent on November 12, November 15, and then from November 24, 2010 onwards. (iv) Testimony [12] The worker testified that on November 11, 2010 she was reaching across a desk to clean it when she felt sudden pain in her lower back. The worker stated that she was unsure of which day of the week it was, but that the day after the accident she went to the hospital emergency department to have her low back diagnosed. The worker denied having any prior back problems. [13] The worker stated that she had never missed a day of work prior to this accident as a result of her back. [14] The worker stated that she did not see her family doctor until November 23, 2010 as this was the first appointment she could get. [15] The worker testified that she did not complete her Form 6 until February 2011 because she was unaware of the reporting procedure until her brother, who was a union representative, informed and helped her. The worker was unable to recall having a prior WSIB claim in 1992 for her elbow. [16] The worker stated that on the Monday following the accident she informed W, whom she believed to be her immediate supervisor. She testified that Mr. Y was her top supervisor. [17] The worker agreed that she may have read the WSIB reporting procedures posted on a staff bulletin board when she first started work with the accident employer, but stated that she could not recall and had certainly not read them recently. [18] Under cross-questioning the worker stated that she was unaware of all of her supervisors, and of the WSIB reporting procedure. After being shown photos of the policies posted on a workplace bulletin board the worker stated that she could not recall seeing them prior to the accident. [19] The worker stated that she had been working alone at the time of the accident. [20] The worker stated that she was unable to explain exactly why there were date discrepancies in her Form 6, but believed she simply put down the wrong date when completing the form. The worker testified that she had informed both her doctor and the hospital in November 2010 that it was work related. (v) Law and policy [21] Since the worker was injured in 2010, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [22] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal:

4 Page: 3 Decision No. 2052/13 #1 Initial Entitlement #300 Decision Making [23] We have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Adjudicative Advice. (vi) Submissions [24] Mr. Seguin, representative for the worker, submitted that the evidence supports a finding that the worker injured her low back at work on November 11, He submitted that the Emergency Department Records which were produced post-aro hearing confirm that the worker sought immediate treatment for her low back injury, and that the injury itself was related to her work duties. [25] He further submitted that the one or two day date difference between the actual event and the worker s Form 6 is incidental, and explained by the worker as an inability to accurately recall the date when filling out her Form 6 some months later. [26] Mr. Seguin submitted that the Form 8 was filed late due to an error by the worker s doctor, and not by the worker herself. [27] He further submitted that the worker had reported the injury to her immediate supervisor W, and that she did not realize she was to have reported it to Mr. Y. He submitted that the worker interacted with W on a daily basis and believed her to be her supervisor, and that it was up to W to inform the top supervisor Mr. Y. He submitted that the worker was not sophisticated in such matters. [28] The employer s representative submitted that the worker s Form 6 gave the accident date as November 13, 2010, and that in any event her Form 6 was not filed until March She also submitted that although the FAF may have been completed in December 2010, the employer did not receive it until sometime in [29] She also submitted that the employer was never given the opportunity to offer modified work to the worker due to the late filing of the claim. [30] The employer s representative further submitted that the reporting procedure and associated forms were clearly posted in the workplace, and that the worker was, or should have been, aware of these procedures. (vii) Analysis [31] OPM Document No , Adjudicative Process, states the following: 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

5 Page: 4 Decision No. 2052/13 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? [32] In this instance we have an employer and a worker, but we have to determine whether there was a work-related injury, proof of accident, and compatibility of the diagnosis to the accident. [33] The employer s representative submitted that there is no proof of accident due to the delay in reporting and seeking medical treatment, as well as the discrepancy in the date of accident, and the doctor s Form 8 indicating a gradual onset injury as opposed to a chance event. [34] The worker testified that the accident happened on November 11, The Emergency Department report is dated November 12, 2010 with an onset date of one day prior. The Triage report notes the onset date as two days prior. The Form 6 notes the onset date as November 13, [35] The worker testified that she had never had low back problems prior to this accident, and the Panel accepts her testimony as straightforward and forthright. It accepts the worker s explanation that she simply made a mistake when recalling the date of the incident while filling out her report later. We note that the hospital records indicate that the worker had a sudden onset of low back pain on November 11, It also notes that it was related to her work duties. This supports the worker s submission that she injured herself at work on the 11 th, and sought immediate medical attention the next day. We also note that the employer s Form 7 confirm the worker was absent on November 12, 2010 the day that she went to the Emergency Department. [36] The worker then saw her doctor on November 23, 2010, and was taken off work as of the next day, and supported by the completed FAF on file. The worker testified that this was the earliest she could get an appointment with her doctor. The Panel accepts this as a reasonable explanation for the delay. The doctor completed the FAF in December, 2010, though it was not forwarded to the employer until sometime in early In his Form 8, the doctor also indicated that the worker s injury was work-related, although he referenced a gradual onset disablement rather than a single accident. We accept the worker s statement that she did not know why the doctor indicated gradual onset, given that she had never missed time for her back or complained of it prior to the accident. [37] Thus, in terms of delay in seeking medical treatment we find that there was none. The worker injured herself on November 11, 2010 and sought treatment for it the next day. She attended at her doctor s office at the first opportunity. The two reports both indicate that the worker injured herself at work, which is consistent with the worker s testimony in this respect.

6 Page: 5 Decision No. 2052/13 We also accept that the description of the worker s accident is compatible with the diagnosis of low back injury. [38] As such, we find that the worker had a personal work related accident, that the medical reporting confirmed this, and that there was compatibility as set out in the policy above. [39] The other delay issue as raised by the employer s representative was in reporting the injury to the employer, and to the Board. The worker testified that she had informed W, whom she believed to be her supervisor, sometime the following week, probably on the day she returned to work after the accident (November 16, 2010). She also testified that she was unaware of the reporting procedure for a workplace accident. [40] The Panel accepts that the employer had posted reporting requirements in the workplace in a central location. The Panel, however, accepts the worker s testimony that she was unaware of these requirements until her brother informed her of them, and then physically took her to the WSIB office to file her forms. [41] In any event, the delay between the accident date and the filing of the claim in March 2011 would be around four months. This therefore would be less than the six month time limit as set out in the Act. The Act states the following: 22. (1) A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease. [42] As such, the Panel finds that the worker meets the adjudication checklist as set out above, and that her claim was timely within the parameters of the Act. As such, we find that the worker does have initial entitlement for a low back injury sustained on November 11, 2010.

7 Page: 6 Decision No. 2052/13 DISPOSITION [43] The appeal is allowed as follows: 1. The worker has initial entitlement for a low back injury as a result of a workplace accident on November 11, [44] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: April 8, 2014 SIGNED: K. Cooper, B. M. Young, K. Hoskin