WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 975/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 975/06 BEFORE: M. Crystal: Vice-Chair HEARING: February 28, 2007 at Toronto Written case DATE OF DECISION: March 1, 2007 NEUTRAL CITATION: 2007 ONWSIAT 540 DECISION(S) UNDER APPEAL: WSIB ARO decision dated April 21, 2005 APPEARANCES: For the worker: For the employer: Self-represented Mr. Peter C. Timmons, consultant 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. 975/06 REASONS (i) Introduction [1] This appeal was considered as a written case in Toronto on February 28, The worker appeals the decision of Appeals Resolution Officer (ARO) Peeter Prummel, dated April 21, The decision determined that the worker was not entitled to an extension of the six month time limit for making a claim to the Board, as provided by section 22(1) of the Workplace Safety and Insurance Act, [2] The worker was self-represented. The employer participated in the appeal, and was represented by Mr. Peter C. Timmons, consultant. Written submissions dated October 12, 2006 and November 15, 2006 were provided by the worker. Submissions dated October 6, 2006 and October 27, 2006 were provided by Mr. Timmons. (ii) The issue on appeal [3] The issue to be determined in this appeal is whether the worker is entitled to an extension of the six month time limit for making a claim to the Board, as provided by section 22(1) of the Workplace Safety and Insurance Act, (iii) The evidence [4] The worker has alleged that he suffered a workplace accident on May 22, At the time of the accident the worker was performing modified duties due to previous injury to his right arm and shoulder. [5] The employer prepared an Employer s Report of Injury dated May 11, The employer s report stated that the worker suffered an injury on May 22, 2003 and that it was reported to the employer on the same day. The employer s report stated that the injury occurred when the worker was lifting a box above shoulders and that the box weighed about 20 lb. The Employer s Report of Injury stated that the accident was reported to the worker s supervisor on the date of the accident, but that the supervisor thought it was a recurrence of a previous injury. The report stated in part: Details of Injury/Disease What happened to cause the injury? If known, describe injury, part of body involved and specify left or right side. Lifting a box to a shelf above employee s shoulder. Employee felt a twinge in his left shoulder area. Supervisor advised that at the time the employee told him about the pain in his shoulder. His supervisor thought it was a recurrence of his ongoing problems with this shoulders and upper back for which claims already exist. The employee has permanent restrictions and is on modified duties from his previous problems. He was already on modified duties at the time of this incident. Strain left shoulder. [6] The employer also indicated in its report that the employer had no reason to doubt that the injury was work-related.

3 Page: 2 Decision No. 975/06 [7] The worker filed a Worker s Report of Injury, dated May 19, 2004, which provided the following description of the alleged accident: While placing a box on shelf slightly above shoulder high. Lifted box of parts approx. weight 15 to 20 lbs. Box slipped from right hand and weight shifted to left hand pushing left arm back suddenly forcing arm back past shoulder as it fell. [8] The worker s report stated that there were no witnesses to the accident. The report also stated that the worker reported the injury to his supervisor on the day of the accident. It indicated that the supervisor suggested that the accident be treated as a minor strain, however, it was determined subsequently that the injury was more serious than originally thought. [9] The case materials include a Physician s First Report, dated May 12, 2004 (i.e., almost one year subsequent to the accident), prepared by Dr. G.B. Molnar, the worker s family physician. The report stated that Dr. Molnar treated the worker on May 22, 2003 for a left shoulder injury that occurred when the worker was lifting a box above his head, and that the worker had very limited use of the left shoulder. [10] The case materials included a few pages of clinical notes prepared by Dr. Molnar in relation to his treatment of the worker, however the date of the earliest entry is very poorly legible, because the copy of the page did not include the very top portion of the original. There is an entry at the top of the page, however, and it does indicate that the worker was seen for a shoulder injury that occurred as a result of box being lifted and that the worker felt it slip. Although the date of the entry is not legible, it would appear from the context of the other entries on the page that the entry was made in 2003, prior to August 18, 2003, which is the date of the following entry. [11] The case materials also included a radiology report, prepared by Dr. L.R. MacFadyen, radiologist, dated May 22, The report related to an x-ray of the worker s left shoulder taken on May 22, 2003, ordered by Dr. Molnar. The report indicated that the worker had very slight osteoarthritis at the left acromioclavicular joint with slight marginal lipping and juxta-articular sclerosis. [12] The worker was referred by Dr. Molnar to Dr. John Newall, orthopaedic surgeon, who saw the worker on July 22, His report of that date indicated that the worker was presenting with left shoulder problems and that about six months or so ago, he apparently reached to catch a falling box at work. Dr. Newall provided a diagnosis of rotator cuff tendonitis and possible tear of the rotator cuff. [13] Dr. MacFadyen prepared a report dated August 6, 2003 on an ultrasound of both shoulders, which disclosed that the worker had a partial thickness tear of the left supraspinatus tendon anterolaterally. The worker underwent surgery in February 2004 to treat his left shoulder injury. Subsequent to the surgery, the worker continued to complain of difficulties with the left shoulder.

4 Page: 3 Decision No. 975/06 [14] The Board s Claims Adjudicator (CA) prepared a number of internal Board memoranda in relation to the worker s alleged accident. These included: A memo dated June 18, 2004 which indicated that the worker advised the CA that he reported the accident as work-related in May 2003; A memo to the Board s Investigations section, dated June 24, 2004, in which the CA questioned the worker s assertion that he refrained from making a claim for the left shoulder on advice from his supervisor; A memo, dated July 30, 2004, which reflected a conversation between the worker and the CA, in which the worker expressed his understanding that it was the employer s responsibility to submit a claim, and in which the CA advised the worker that it was also his responsibility to submit an accident claim; A memo, dated October 24, 2004, which reflected a conversation between the worker and the CA in which the CA indicated that it was her understanding that he was prompted to make a claim to the Board only when the employer directed him to drive to other facilities. The memo indicated that the CA admitted that she was in error about this point, and the CA apologized to the worker for her confusion. [15] The CA directed the Board s Investigator to conduct an investigation into the circumstances of the worker s claim for a left shoulder injury which he alleged occurred on May 22, The report reflected the Investigator s interview with the worker on July 5, The worker described the accident which he stated occurred when he lifted a box, which pushed back onto his left shoulder when the contents shifted. The worker stated that he immediately advised his supervisor who told him that he was not to be lifting. The worker indicated that the supervisor said this is a recurrence of the pre-existing injury. Then his phone rang and [the worker] didn t get a chance to tell him the injury was not to the right shoulder but was now the left. The worker also indicated that called the company nurse and told her what happened. [16] The Investigator also interviewed the worker s supervisor on July 5, The portion of the report relating to the interview of the supervisor stated in part: REPORTING: [the worker] mentioned that his shoulder was bothering him, but [the supervisor] just assumed [the worker] was injured when working outside his restrictions. For this reason no paperwork was done at the time. FURTHER INFORMATION: [The supervisor] said it is hard for him to keep track of [the worker s] physical problems. He is a constant complainer. He cannot specifically recall left shoulder complaints [17] The Board s Investigator also spoke with the employer s Occupational Health Nurse, by telephone on July 8, The nurse indicated that she checked the chart which did not document a left shoulder injury, although she also stated that it was not unusual for the worker to call her about something. The nurse also noted that there was a January 28, 2004 note in the

5 Page: 4 Decision No. 975/06 worker s chart which said he was having surgery for a problem that happened when he lifted a 30 lbs box and it slipped. He said no paperwork was done. [18] Further, the report stated that in the investigator s interview with the employer s nurse, the nurse indicated that the worker called on May 11, 2004 to indicate that he was not happy with the results of the surgery, and that the worker thought the nurse would have initiated a WSIB claim for him. According to the report, the nurse advised the worker that it was the supervisor who was to do that and that she would send an to him. (iv) Applicable law and policy [19] The workplace accident which is the subject of this appeal is alleged to have occurred on May 22, Accordingly, the worker s entitlement in this appeal is governed by the Workplace Safety and Insurance Act, 1997 (the Act). [20] The issue in this appeal is whether the six month period for filing a claim should be extended to allow the worker to file a claim for an accident he has alleged occurred on May 22, The six month period is provided by the Act pursuant to section 22, which states, in part: 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. (3) The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so. (6) If the claimant does not file the claim with the Board in accordance with this section or does not give the consent required by subsection (5), no benefits shall be provided under the insurance plan unless the Board, in its opinion, decides that it is just to do so. (7) The claimant shall give a copy of his or her claim to the worker s employer at the time the claim is given to the Board. (8) A copy of the claim for an occupational disease must be given to the employer who has most recently employed the worker in the employment to the nature of which the disease is due. [21] The obligations of a worker to file an accident claim, and the circumstances when the time limit for filing a claim will be extended, are described in the Operational Policy Manual Document No , which states in part: Law As soon as possible after an accident, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional. A claim must be filed within six months of an accident or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirements altogether if in the WSIB's opinion it is just to do so.

6 Page: 5 Decision No. 975/06 If the worker does not file the claim for benefits, or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB does not provide benefits unless, in its opinion, it is just to do so. Workers must give their employers a copy of the claim for benefits at the same time they give a copy to the WSIB. In the case of occupational diseases, workers must give a copy of the claim to the employer who most recently employed them in the employment to which the disease is associated. Extending the 6-month deadline. Exceptional circumstances If a worker fails to file a claim by the respective deadline, the WSIB allows the claim to be filed at a later date if the worker can show that exceptional circumstances existed at the deadline. Exceptional circumstances can include compelling personal reasons, such as serious health problems or accident (experienced by the party or the party's immediate family), or the party leaving the province/country due to the ill health or death of a family member the worker's ability to understand the time limit requirements and consequences of not meeting them (e.g., was the worker made aware at the workplace of the requirement to claim and consent; were language difficulties a factor?), and whether the worker reported the accident to the employer, health care professional, or co-workers. (v) Analysis [22] In the employer s submissions dated October 6, 2006, the employer s representative stated at paragraph 10 that the evidence completely fails to support [the worker s] assertion that he informed his supervisor of the accident on the day in question. I am not able to agree with this view. [23] In my view, the most persuasive evidence in support of a finding that the worker reported the accident to the employer, is the Employer s Report of Injury, dated May 11, That document was prepared before the matter became an issue at the Board, and before the worker prepared his report to the Board. I note that the date of the report, namely May 11, 2004, is the same date that the company s nurse told the Board s investigator that she would the supervisor to ask him to report the accident to the Board. [24] The Employer s Report of Injury is signed by the worker s supervisor, and by signing the report, he declared that it was true, noting that it would be an offence to make a false statement in the report. The Report stated explicitly that the worker reported the accident to the employer at 12:00 p.m.[sic] on May 22, [25] The supervisor stated the accident was reported to him, but that he thought it was a recurrence of a previous injury. The report goes on to describe the lifting accident in essentially the same language that the worker consistently used to describe the accident in his conversations

7 Page: 6 Decision No. 975/06 with the Board s CA, the Board s Investigator and with his physician. The report also stated that the employer had no reason to doubt that the accident was work-related. [26] I also note that, when interviewed by the Board s investigator, the supervisor did not deny that the worker had reported the accident to him. Rather, he advised the investigator that he believed that the worker was injured as a result of working outside his physical restrictions, and for this reason no paperwork was done at the time. This statement would not make any sense if the worker had not reported the accident to him. No reason would be required for failing to do paperwork, had the supervisor been unaware of the accident. [27] I also find that the worker reported the accident to Dr. Molnar on May 22, Dr. Molnar prepared a report which stated that he treated the worker for a workplace injury to his left shoulder on May 22, It is clear that the worker saw Dr. Molnar for a left shoulder injury on that date, on the basis of the evidence which indicated that Dr. Molnar ordered x-rays of the left shoulder on that date. Although the date in the clinical notes is poorly legible, I am satisfied that the content of the note is in relation to work-related left shoulder injury, and I find it extremely probable that the entry was made on May 22, [28] The Board s policy, which is excerpted above, indicates that the six month period for filing a claim may be extended in exceptional circumstances. The policy states that such exceptional circumstances may exist where there is evidence that the worker reported the accident to the employer, a health care professional or co-workers. I am satisfied on the evidence as outlined above that the worker reported the accident to both the employer and to Dr. Molnar on the date of the accident. As noted above, in the Employer s Report of Accident, the supervisor made a solemn declaration that the worker reported the accident to him, specifying both the date and the hour that the worker made the report. Further, as noted, the supervisor indicated that he had no reason to doubt that the accident was work-related. [29] I have also taken into account the worker s statement, made in his submissions, that he was not aware of his own obligation to report the accident within a specified time period. He stated that, although he had made numerous claims to the Board, in every case the claims in the past years were completed by management and [he] was never made aware of any time limits This statement is consistent with the statement made by the employer s nurse who advised the Board s investigator that when the worker stated that he thought that the nurse would initiate a claim to the Board, the nurse told the worker that it was the supervisor that was to do that and that she would send the supervisor an accordingly. As I have noted above, on the same date that the nurse had that conversation with the worker, the supervisor filed the claim with the Board. [30] Although the worker s own obligation to report a claim, arising from the Act, should not be diminished, I accept the worker s submission that it was his understanding, albeit mistaken, that this was the employer s obligation. It was also apparently the understanding of the employer s occupational nurse that a claim to the Board by the worker was to be initiated by the worker s supervisor. [31] I therefore find that exceptional circumstances for allowing an extension of the six month period for a worker to file a claim with the Board, as noted in the Board s policy document,

8 Page: 7 Decision No. 975/06 existed in the circumstances of this appeal. In that regard, I find that it is probable that the worker reported the accident to the employer and to his physician on the date of the accident. I also find that it is probable that the worker was not made aware at the workplace of the requirement to make a claim to the Board within the specified time period. Accordingly, I find that the time for filing a claim, as provided by section 22 of the Act, should be extended to allow the worker to file a claim with the Board in relation to his workplace accident on May 22, 2003, and that it is just to do so.

9 Page: 8 Decision No. 975/06 DISPOSITION [32] The appeal is allowed. The period for filing a claim shall be extended to allow the worker to file a claim with the Board in relation to his workplace accident on May 22, DATED: March 1, 2007 SIGNED: M. Crystal