Decision Nº 583/23 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: A. Kosny: Vice-Chair
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1425
• Judgement Number: 583/23
• Hearing Date: 25 April 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 583/23 15-Sep-2023 A.Kosny

• Delay (treatment)

• Evidence (inconsistencies)

• Strains and sprains (lumbar)

• Concussion

No Summary Available

10 Pages

References:	Act Citation WSIA ; Other Case Reference [w4523n] CASES CONSIDERED: Faryna v. Chorny, 1951 CanLII 252 (BC CA) refd to
Style of Cause:
Neutral Citation:	2023 ONWSIAT 1425

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 583/23

BEFORE: A. Kosny: Vice-Chair

HEARING: April 25, 2023 at Toronto Oral by Videoconference

Post-hearing activity completed August 8, 2023

DATE OF DECISION: September 15, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1425

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated December 21, 2021

APPEARANCES:

For the worker: M. Kelly, Lawyer

For the employer: Not participating

Interpreter: G. Nikolic (Serbian)

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal 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

REASONS

1. Introduction

[1] The worker appeals a December 21, 2021 decision of an Appeals Resolution Officer (ARO) of the Workplace Safety & Insurance Board (WSIB or “the Board”) that found the worker did not have initial entitlement to benefits for a head, concussion, neck, upper and lower back injury.

2. Issues

[2] The worker seeks initial entitlement to benefits for a head, concussion, neck, upper and lower back injury.

3. Background

[3] The worker was employed as a general labourer. On October 1, 2019, a Form 6 (Worker’s Report of Injury) was completed indicating that on September 2, 2019, the worker was carrying a large metal panel weighing 25-30 kilograms when he lost his balance, slipped and fell on the ground. The Form 6 indicates that the worker injured his head, eyes, neck, upper back and lower back.

[4] In an Operating Area decision dated October 29, 2019, entitlement to benefits was denied as proof of accident could not be established.

[5] The Operating Area of the WSIB reconsidered the decision and on January 14, 2020 found that the worker had entitlement to healthcare benefits for corneal abrasions to the right and left eye arising out of an accident on September 3, 2019. The January 14, 2020 decision confirmed the denial of initial entitlement to benefits for a head, concussion, neck, upper and lower back injury.

[6] The worker appealed the January 14, 2020 decision. On December 21, 2021, the ARO denied entitlement to benefits for a head, concussion, neck, upper and lower back injury. The worker now appeals this decision to the Tribunal.

4. Law and policy

[7] Since the worker claims to have been injured in 2019, 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.

[8] An “accident” is defined in section 2(1) to include:

1. a wilful and intentional act, not being the act of the worker,

2. a chance event occasioned by a physical or natural cause, and

3. disablement arising out of and in the course of employment;

[9] General entitlement to benefits is governed by section 13:

13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

(2) 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.

[10] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No. 280, 1987 CanLII 1996 (ON WSIAT).

[11] The standard of proof in workers’ compensation proceedings is the balance of probabilities.

Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight.

5. Analysis

[12] The worker provided testimony at the hearing and the Worker’s Representative made oral submissions. The worker stated in his testimony that he sought medical attention at the hospital on the date of the claimed injury. The clinical record of this encounter was not in the case materials. After the hearing I asked that the Tribunal request the medical records for the worker from the hospital from September 1 to September 17, 2019. The records were received by the Tribunal and included all encounter notes for the worker from November 30, 2013 to August 5, 2021. The Worker’s Representative also provided written submissions, dated

July 17, 2023, with regard to the medical records obtained.

[13] Considering the evidence before me, I find that the worker does not have initial entitlement to benefits for a head, neck, lower and upper back and concussion injury. I refer to the worker’s testimony and the Worker’s Representative’s submissions in my reasons below, as necessary.

1. The medical record

[14] The Worker’s Representative submitted that there were two workplace accidents on September 3, 2019. In the first, the worker injured his eyes. This accident was accepted by the WSIB in a decision dated January 14, 2020. The Worker’s Representative submitted that the second accident occurred on the same date and involved the worker falling while carrying a large panel and injuring his head, neck, upper and lower back and sustaining a concussion.

[15] There are a number of medical reports in the case materials from September 2019.

[16] The worker attended a walk-in clinic on September 7, 2019 and was seen by Dr. Hanna for a right eye injury and difficulty seeing. The handwritten note is difficult to decipher but refers to the eye injury being due to a piece of aluminum at work two days prior. It was reported that the worker had decreased vision and no corneal abrasions.

[17] The worker was seen on September 17, 2019 by Dr. Hanna for back pain and watery eyes.

Again, the note is handwritten and difficult to decipher but appears to state that the worker was cutting aluminum at work and had low back pain due to repetitive lifting. The note indicates that the worker’s vision was diminished. Lumbar spine imaging was ordered. The imaging performed on the same date indicated degenerative changes of the lumbar spine, most pronounced from L3 to S1. There were no acute findings.

[18] The worker was seen at the transitional outpatient program of schizophrenia service at the local hospital on September 17, 2019. A mental status exam was performed and indicated as follows:

Mental Status Exam Orientation Level: Oriented X4 Level of Consciousness: Alert

General Attitude: Cooperative Behaviour: Appropriate to situation

Appearance/Hygiene: Appears as stated age Eye Contact: Maintains eye contact

Motor Activity: Freedom of movement Mood: good

Affect: Stable pattern

Speech and Language: Soft volume Thought Process: Organized flow Thought Content: Goal-oriented

Description of Thought Content: “looking for another job” Perceptual Disturbances: Denied

Thoughts of Self-Harm: Denied Suicidal Ideation: Denied

Thoughts of Harm to Others: Denied Cognition: Unimpaired

Insight: Limited Judgement: Good

[19] The worker brought at letter from his public guardian and trustee indicating that his doctor had canceled the certificate of incapacity. A follow-up meeting was booked for September 20, 2019 but there are no further clinical notes concerning this appointment.

[20] The worker attended the emergency department the following day, on September 18, 2019. The chief complaint was eye pain. A language barrier was noted. The worker also reported that he fell while carrying a board. He reported that he struck his head with loss of consciousness. The worker reported ongoing issues with concentration, intermittent photophobia and blurriness. He complained of back pain. Examination indicated small corneal abrasions and a tender low back. The worker was diagnosed with corneal abrasions and a concussion was questioned. The worker was advised to follow up with his family doctor regarding his ongoing back ...