The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 19, 2002, at the request of the claimant. The Panel discussed this appeal on June 19, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

While sitting in "report" as a nurse's aide on August 3, 2001, the claimant stood up to leave to start her shift when she felt a severe pain in her right ankle. She sat down to examine her ankle but couldn't see anything. She tried to stand again and the pain returned. Initial medical reports showed that the claimant was diagnosed with a sprained right ankle and impingement syndrome. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid commencing August 4, 2001.

In later medical correspondence, the diagnosis of the claimant's right ankle status changed to a fracture of the medial malleolus. Following further discussions with the claimant and an opinion expressed by a WCB medical advisor, it was determined by primary adjudication that the mechanics of injury did not support the new diagnosis of a fractured malleolus and that the claimant was not entitled to benefits beyond October 5, 2001.

On December 14, 2001, a worker advisor submitted two medical reports, which she believed supported the position that the mechanics of the August 3, 2001 injury resulted in an aggravation to a pre-existing right ankle injury. The first medical report dated December 4, 2001 stated, in part, the following:

"On my first impression of the x-ray after I saw her, I thought that there may be a fracture. The radiologist didn't agree with me. It remains a question if she just stood up from a sitting position or if she twisted her ankle. Medically, it doesn't sound possible but we are dealing with a bone scan that suggests that it may be a possibility."

The second medical report dated November 2, 2001, stated, in part, the following:

"I am not sure the nature of the injury as it seems like a very innocuous history of injury to her right ankle on August 3rd. Clearly, she did not fracture any bones at that time, but did have significant pain and does have increased reactivity on the bone scan. Some of her symptoms now are suggestive of an early reflex sympathetic dystrophy, and she is significantly disabled walking with quite a marked limp. ..it is clear from her history that she did aggravate a pre-existing injury to her right ankle though certainly I agree her mechanics of injury certainly seems extremely innocuous."

The worker advisor also submitted two letters that were obtained from the claimant's co-workers in which they describe the mechanics of the August 3, 2001 accident.

In a response to the worker advisor dated January 22, 2002, primary adjudication noted that the claimant was asked on several occasions regarding the mechanics of her injury and she maintained that she simply stood up. The claimant advised that she sustained a sprain to the same area 4 years prior but had been symptom free since. Primary adjudication concluded that the August 3rd injury was not an aggravation of a pre-existing ankle injury. A WCB medical advisor was also of the view that the mechanics of injury described by the claimant would not result in a fractured malleolus. It was therefore determined that no change would be made to the original decision and that the claimant was not entitled to benefits beyond October 5, 2001. On February 22, 2002, the worker advisor appealed the decision to Review Office.

On February 22, 2002, Review Office determined that the claim was not acceptable and that the claimant was overpaid. Review Office found that the claimant did not sustain personal injury by accident arising out of and in the course of her employment on August 3, 2001 based on the following factors:

• it failed to find evidence that supported there was an 'accident', an 'aggravation' of any pre-existing problem, or an 'injury'. The claimant simply stood from a seated position, weight bearing onto her feet, did not constitute an accident. Three adjudicators questioned the claimant on how her injury occurred and she denied having twisted, rolled or other of her ankleshe 'simply stood up'.
• no history of trauma was mentioned to the emergency physician or any of the attending practitioners involved in the case.
• the statements provided by the claimant's co-workers did not describe, confirm or support that the claimant had an 'accident' at work on August 3rd.
• x-rays taken on August 3, 2001 were negative for any bone, joint or soft tissue abnormality. There was no redness or swelling. Review Office found no evidence to support a 'sprain' as initially speculated by the physician.
• an orthopaedic consultant reported that there was no fracture. In his opinion the mechanism as described by the claimant would not lead to a fracture or even a sprain.

Review Office commented that being at work did not mean a claim ought to be allowed. There was no hazard of the employer's premises to have brought on the claimant's complaints and there was no work related accident or even any evidence of trauma. On April 2, 2002, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

Chairperson Sargeant and Commissioner Day:

This case involves a worker who sustained an injury to her ankle while at work in a personal care home. Initially, her claim was accepted as a compensable ankle sprain and benefits paid. However, upon reconsideration, it was determined that no accident occurred, within the meaning of the Act and the decision to accept the claim was reversed.

She appealed that decision to this Commission.

For her appeal to succeed, the Panel would have to determine that the claimant did sustain an injury, which arose out of and in the course of her employment. A majority of the Panel did make that determination. (The reasons of the dissenting panelist will follow.)

Subsection 4(1) of the Act sets out when compensation is payable:

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Subsection 1(1) provides the following definition:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment,

(c) an occupational disease,

and as a result of which a worker is injured;

There is no question that the claimant sustained an injury on the day in question. She did injure her ankle and it did bother her for a number of weeks after the incident. The exact nature of her injury was never determined, nor was the nature of the accident that caused it.

At issue is whether or not the claimant meets the requirements of the Act by having sustained an injury by workplace accident.

In finding for the appellant, the majority relies on the following evidence:

• On August 3, 2001, the claimant was in the course of her employment. She had started her shift and had been seated while reporting on patients.

• Upon standing up, she found she was unable to bear weight on her ankle; something was wrong with it.

• She did not show any evidence of an injury to her ankle prior to standing up. Two co-workers who had followed her into work that morning reported that she had been walking normally.

• Her ankle injury disabled her from work for over three months.

• We note that she was able to return to work, on a regular basis, in November

While we recognize that no specific or known trauma has been identified to cause the injury, we find that there is simply no other explanation but that the injury met the demands required by the Act, arising out of and in the course of her employment.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller
T. Sargeant,

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of July, 2002

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The worker in this case suffered an unusual injury while at her workplace, in which she injured her ankle in the very simple act of standing up from her chair after a morning meeting. She does not report any “traumatic” or unusual event having taken place at that time, that might have precipitated an injury – she did not twist or roll over on her ankle or strike it against a nearby object. The WCB adjudicator found that the worker’s claim was acceptable, but this decision was reversed by the Review Office. The worker is now appealing the decision of the Review Office, and has asked this panel to find that her claim is acceptable.

Section 4(1) of The Workers Compensation Act defines the circumstances under which a worker can receive benefits. This section allows the worker to receive benefits if her injury “arose out of and in the course of” her employment. Each of the terms of this definition -- “arose out of” and “in the course of employment” -- must be satisfied for there to be a workplace accident under the Act.

After reviewing the evidence presented at the hearing and on the file, I find that only one of the tests is satisfied, on a balance of probabilities. The worker’s injury did take place “in the course of employment” but did not “arise out of” her employment.

As to the second part of the test – “in the course of employment” -- there is clear evidence on the file from the worker and co-workers that the worker was walking well on her arrival to work on the morning of the incident, and while at work prior to the incident. The onset of her symptoms was rather sudden and first arose following the completion of a work-related meeting during her work shift where her attendance was expected and required. Accordingly, I find that the evidence supports, on a balance of probabilities, that the accident arose in the course of employment.

As to the first part of the test – “arose out of” – it is necessary for me to find a cause and effect relationship between what happened to the claimant and a workplace event or hazard of the workplace. If the condition arose idiopathically (on its own or without a known cause) or arose in the ordinary course of life, the injury at the workplace would not be compensable. I note that the worker’s evidence as to her act of standing up does not point to any real mechanism of injury that can be attributable to a hazard in the workplace. I also note that the medical evidence is not helpful in establishing a cause and effect relationship between the worker’s medical condition and a workplace event. Medical practitioners have ruled out a fracture or a sprain, and a bone scan points to a possible early reflex sympathetic dystrophy. These two factors lead me to find, on a balance of probabilities, that the worker’s ankle injury simply “happened” on a spontaneous basis at the workplace, and did not arise out of her employment.

On this basis, I would find that the worker’s claim is not acceptable.

A. Finkel, Commissioner