Case #3

The union for the employee of a manufacturing company filed a grievance for Non-economic loss

The issues in dispute are as follows:

• 1.whether the worker has entitlement to a Non-Economic Loss (NEL) award for the left foot/ankle injuries;
• 2.whether the worker has entitlement for a low back strain/disc herniation injury as a secondary condition

On September 12, 2020, this now 42 year old Melisa Weeks sustained a left foot/ankle injury when a forklift pushed a skid against her pinning her left foot between a skid and conveyor belt.

On September 12, 2020, the employer filed a form 7 to the Ministry of Labour. A medical report from Dr. Brown indicated that the workplace injury resulted in a "traumatic soft tissue injury with a secondary complication of ulceration around the medial side of the left ankle".

On October 24, 2020, Ms. Weeks benefit ended due to a report from her doctor that indicated that her left foot/ankle soft tissue injuries with "secondary complication of ulceration around the medial side of the left ankle" had resolved. As the ulceration healed as of November 15, 2020, the Ministry denied there was no ongoing entitlement to benefits. The Ministry concluded any ongoing symptoms were related to a "non-work-related pre-existing condition of a degenerative nature" and not related to the workplace accident.

In a report dated March 30, 2021, Dr. Prutis (physical medicine) opined the worker had a back injury. Dr. Prutis wrote, in part:

• Ms. Weeks also developed pain in the low back after her accident, which progressed with progression of time. She was found to have lumbar disc herniation
• In summary...she also sustained moderately severe myofascial lumbar strain, as the consequence of this accident. She developed lumbar disc herniation.

In a letter dated April 8th, 2021, Dr. K. Prutis wrote that the worker complained of low back pain that was the consequence of the workplace accident. Dr. Prutis wrote that a recent MRI scan displayed disc protrusions at L4-L5 and L5-S1 with nerve compression at the "S1 nerve root with the thecal sac and displacing it posteriorly". The employer informed the Ministry the Ms. Weeks back injury was not related to the workplace incident, as result in a letter dated April 21, 2020, the Ministry denied the worker had entitlement as the worker's onset of low back symptoms were not reported until 6 months after the workplace accident.

The worker's back condition subsequently required surgery.

Law: What are the relevant clauses in the collective agreement? What statutes (if any) and other arbitration cases deal with the issues you have identified?