The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 5, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 7, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In June 2002, the worker claimed that she injured her right knee when she slipped on a wet floor in a guest's bathroom during the course of her employment as a housekeeper. The worker noted that her knee became very painful and after a while it went numb. She walked with a lot of difficulty and pain and went to tell her boss. She asked for a knee brace but was told to buy her own at the drug store.

The Employer's Accident Report noted that the claimant's knee injury apparently occurred at the end of June 2002 and that the claimant "…said that she told the company that same day, but they did not have a record of it."

On March 25, 2003, an adjudicator with the Workers Compensation Board (WCB) spoke with the claimant and the following information was obtained:

• the claimant has had problems with her right knee since the original injury of June 2002. The claimant could not remember the exact date of accident but she reported the accident to her boss on the date of the accident.
  
  
• the claimant attended her family physician for treatment about a week after the accident and was referred to a specialist whom she saw approximately two weeks later. She continued to work at her regular duties but her knee continued to bother her. The claimant said her boss was aware of her ongoing difficulties.
  
  
• the claimant did not file a WCB claim for some time as she was unaware that she could or should file with the WCB. It was her physician who advised her to file a claim.

On May 5, 2003, the claimant's supervisor advised the WCB that she was not aware of any injury to the claimant's right knee and that the claimant only mentioned difficulties with her neck. After returning to work in February 2003 from a one month vacation, the claimant reported that her knee was sore and the doctor did not know why. No co-workers were aware of the claimant's injury and the claimant never complained about her knee.

A WCB adjudicator spoke with the claimant's co-worker on May 20, 2003. The co-worker did not witness an injury but remembered that the claimant told her boss about an injury to her knee and that the claimant asked for a bandaid. The co-worker could not recall the exact season, month or year that the claimant spoke with her boss about an injury.

On May 29, 2003, the claimant's supervisor advised the WCB that the claimant brought in a doctor's note on January 25, 2003 indicating that she should avoid kneeling for two weeks. It was at this time when the supervisor was notified of an injury.

Medical information consisted of a report from the treating physician dated May 28, 2003, which showed that the claimant had been assessed on July 3, 2002 for right knee difficulties. On May 28, 2003, the physician's office advised the WCB that the claimant had complained of pain in her right knee when seen on July 3, 2002 from heavy work at the hotel.

A report received from a second physician dated March 20, 2003, showed that the claimant had been examined on March 19, 2003. The physician stated, "seen months ago for chronic knee pain. I was not aware this was WCB case but now reports a fall in workplace. I spoke to her about WCB some time ago but it was not established as to whether she would claim. She now reports to me she fell in a washroom at work initially." The diagnosis rendered was a possible meniscal tear of the right knee.

On April 17, 2003, the treating physician advised the WCB that the claimant was very quiet and he was not certain if she had made all parties at work aware of her ongoing problems and the relationship to her work activities. He noted that the claimant was from Somalia and felt that he may have underestimated her lack of understanding and this may have been the problem in the delay in relating her knee problems to work activities.

In a letter dated June 5, 2003, the claimant was advised by the WCB that her claim for compensation had been denied based on sections 4(1) and 17(5) of The Workers Compensation Act (the Act). The WCB noted that the claimant related her right knee difficulties to a specific accident occurring while at work on June 26, 2002, but no accident or injury was reported to the employer until nine months later. The employer was also unaware of ongoing complaints until late January 2003 and both attending physicians were unaware of a specific work related incident occurring. Given the significant delay in reporting and lack of medical findings relating to a specific injury at work as reported by the claimant, the WCB was unable to establish that an injury arising out of and in the course of her employment had occurred. On June 23, 2003, an advocate for the claimant appealed this decision to Review Office.

On August 22, 2003, the Review Office determined that the claim was not acceptable. Review Office felt there was insufficient evidence to support an injury occurring at work as indicated by the worker and that the weight of evidence did not support the worker's claim that an accident occurred at work on June 26, 2002. On April 1, 2003, a union representative, acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"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."

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises
      out of, and in the course of, employment, and
      
3. an occupational disease

and as a result of which a worker is injured."

After having thoroughly considered all of the evidence, we find that the claimant did, on a balance of probabilities sustain an accident arising out of and in the course of her employment which resulted in injury. In coming to this conclusion, we attached considerable weight to the following body of evidence:

• The claimant sought immediate medical treatment.
  
  
• A co-worker confirmed the incident.
  
  
• The employer acknowledged that it was aware of the worker's injury.
  
  
• The mechanism of injury is consistent with the claimant's right knee difficulties.

Based on the preponderance of evidence we find the claim to be acceptable. Accordingly, the worker's appeal is hereby allowed.

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 18th day of August, 2004