Decision #47/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 1, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 1, 2003.

Issue

Whether or not the claimant's loss of earning capacity after November 24, 2001 is related to the compensable injury.

Decision

That the claimant's loss of earning capacity after November 24, 2001 is not related to the compensable injury.

Decision: Unanimous

Background

On November 1, 2001, the claimant filed an application for compensation benefits with the Workers Compensation Board (WCB) for left knee and ankle pain that developed during the course of his employment on October 30, 2001. Medical reports on file revealed that the claimant was diagnosed with a left knee strain and that a referral was made for physiotherapy treatments. The claim was accepted by the WCB and benefits were paid accordingly. By November 26, 2001, the attending physician cleared the claimant to return to his regular duties.

On November 27, 2001, the employer advised the WCB that the claimant was to begin his first shift on November 26, 2001 and that he phoned his supervisor to say that he had injured his left knee again and would not be in for work.

In a telephone conversation with a WCB adjudicator on November 30, 2001, the claimant advised that he had gone over to his brother's condominium on Saturday, November 24, 2001 and that he walked up about 30 stairs without any problems. On his way down the stairs he felt pain in his knee upon reaching the last step. The claimant stated that his knee felt fine prior to the incident and that he had been prepared to return to work on November 26th. The claimant thought that his knee had not fully healed and that was why it was troubling him.

On December 5, 2001, primary adjudication notified the claimant that it was the WCB's position he had recovered from the effects of his compensable injury prior to the incident of November 24, 2001. This decision was based on the comments expressed by the attending physician that there were no objective medical findings and that the claimant was cleared for a return to work by November 26, 2001. Thus, the WCB was unable to accept responsibility for time loss from work or for any medical treatment beyond November 23, 2001. On February 18, 2001, the claimant's union representative disagreed with this decision and submitted additional medical information dated January 29, 2002. In a response dated March 22, 2002, primary adjudication advised all parties that no change would be made to its previous decision of December 5, 2001.

On October 25, 2002, Review Office considered an appeal submission by the claimant's union representative dated July 3, 2002. Review Office also considered a submission received from the employer dated August 6, 2002.

Review Office ultimately determined that the claimant's loss of earning capacity after November 24, 2001 was not related to the compensable injury. Review Office noted that the requirements of WCB policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury had not been met. It was also of the opinion that the claimant's November 24, 2001 injury was considered to be a new injury which did not arise out of or in the course of his employment. On October 12, 2002, the union representative disagreed with Review Office's decision and an oral hearing was then arranged.

Reasons

As the background notes indicate, the claimant injured his left knee on October 30, 2001 while in the course of his employment. Approximately three weeks following the injury, the treating physician issued a note certifying that the claimant could resume regular duties on November 25th, 2001. The claimant himself was also of the view that he was capable of returning to work at that time. Unfortunately, the claimant did not return to work as anticipated because of the occurrence of a non-compensable intervening event. According to the evidence, the claimant hurt his left knee while ascending and descending stairs at his brother's residence on or about November 24th, 2001.

We find that the claimant's loss of earning capacity after November 24th, 2001 is not on a balance of probabilities related to the compensable injury, but rather as the result of the non-compensable intervening event at his brother's. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of May, 2003

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