Peter Boyles goes over Florence Malloy’s case with her at her home. She says she isn’t getting compensation she deserves for an injury she claims was a result of her work. ADAM MACINNIS – THE NEWS
The pot crashed to the floor, spilling black coffee everywhere.
After about five years of working backshift at the Tim Hortons on East River Road, Florence Malloy says her shoulder just gave out. The pot was the proverbial straw that broke the camel’s back – only in this case it was her shoulder. For the rest of the night she could do nothing.
Since that day on Jan. 22, 2008, Malloy says she has had chronic pain in her shoulder that neither surgery nor physiotherapy could cure. For seven months she received workers compensation, but ever since, she’s been left fighting what local advocate Peter Boyles describes as a clear case of injustice.
More than five years later Boyles is hoping he can somehow find a way to get Malloy the money he says she rightly deserves.
The News was told that Shaw Enterprises, which owns the local Tim Hortons, does not and will not comment for stories of this nature because it involves personnel issues. The fact that Malloy said it would be OK for them to talk didn’t make a difference, the person reached by phone said.
Boyles and Malloy describe what happened this way.
They say that following the incident with the coffee pot, Malloy left a message for her employer. On Jan. 26 she went to the Aberdeen Hospital where she was seen by an emergency physician, who documented the sore shoulder as a work injury.
After medicine and rest proved ineffective, Malloy would undergo physiotherapy but all attempts to restore use to the shoulder were unsuccessful.
“When I was going to physiotherapy, they wanted me to go back to work, so I tried it and I couldn’t do it,” Malloy said.
On March 7, 2008, a Workers Compensation Board decision was sent to Malloy and Kyle Shaw Enterprises Ltd., the local franchise owners saying: “Upon review I am able to determine that your injury arose out of and in the course of your employment. Alternatively you may submit an appeal within 30 days of receiving this decision. If you choose not to appeal, this decision becomes final after 30 days.”
On April 17, an appeal was made by Shaw Enterprises. In it, an employee for Shaw Enterprises says that she has asked to be able to appeal, but was told she had to wait until she had received a written decision. She claims she did not receive the decision sent out to Malloy and the company in March. Despite the fact that more than 30 days had passed, the request for an appeal was made and accepted.
In the appeal, the person for Shaw Enterprises states there was no mechanism of injury that occurred in the workplace to account for the injury that Malloy had.
The appeal was accepted and Malloy lost her benefits.
“It’s terrible,” Malloy said of the financial impact the decision has had on her. “It’s just terrible.”
What’s bizarre, says Boyles, is that the Human Resources department at Shaw Enterprises was able to make an appeal and claim that she couldn’t have injured the arm the way she said she did, when they have no medical evidence to substantiate the claim.
“There was no medical evidence ever presented by the employer to workers comp to say that this woman wasn’t entitled to her workers comp,” Boyles said.
A letter from orthopedic surgeon Dr. J.P. Daigle to Malloy’s caseworker states “I think that she is going to be restricted in the future to work below shoulder height.”
Malloy’s family doctor, Dr. Pat Craig, stated in a letter to Boyles regarding Malloy’s case: “In my opinion, lifting the pot of coffee at Tim Hortons could certainly have been the precipitating event leading to her current difficulties. It is also possible that the repetitive overhead work required by her job at Tim Hortons was a contributing factor to her injury – i.e. her injury could have been caused by repeated overhead lifting, with the pot of coffee being the “last straw,” leading to pain and disability.
Pictou Centre NDP candidate Ross Landry had been presented with Malloy’s situation when he was Justice Minister. While he couldn’t comment on a specific case, he said that anywhere you have someone who is getting benefits and then all of a sudden has them taken away without medical evidence seems odd and should certainly be looked into.
PC candidate Pat Dunn has also heard of Malloy’s case and said he believes it deserves a second look.
“It would have to be after consultation with that particular person and the records that are already available. It could be something a person could go ahead with and see if you could be of any assistance.”
Liberal candidate Bill Muirhead said that while he hasn’t seen all the documents, from what he has heard it sounds like the workers compensation board contradicted their own act. He too said he would look into it if elected.
Whichever candidate is elected next, Boyles hopes that someone can do something to help this woman.
“There’s only one problem with the workers compensation and that is that workers compensation is not accountable,” Boyles said. “If workers compensation was accountable then we would be laughing.”