The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 18, 2005, at the worker's request. The Panel discussed this appeal on January 18, 2005 and again on April 29, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In April 2003, the Workers Compensation Board (WCB) received a medical report, which stated that the worker had tripped over a box at work on March 19, 2003 and fell onto both knees, injuring his right one. The diagnosis rendered was bursitis and the worker was advised to avoid kneeling on his right knee for the next two weeks. On April 22, 2003, the WCB forwarded the worker a letter asking him to complete a "Worker's Accident Report" should his injury have happened at work. The worker did not respond to the request.

On July 19, 2004, the worker contacted the WCB to advise that he was having trouble with his knee which he related to this claim.

On August 10, 2004, a WCB adjudicator contacted the accident employer who could not recall a specific incident occurring to the worker on March 19, 2003. The employer said he didn't doubt the worker but had no record of an injury and doesn't recall being told of an injury.

In a letter dated August 16, 2004, the WCB advised the worker that it was unable to accept his claim since he did not report his injury to his employer within 30 days nor did he report it to the WCB within one year.

On September 13, 2004, the worker indicated to Review Office that he never received the April 22, 2003 letter from his adjudicator and that he would be attending a surgeon on September 29, 2004 with respect to his right knee problems.

In a decision dated September 17, 2004, Review Office stated that it had located five prior WCB claims for the worker and that the worker had been in regular contact with the WCB in relation to each and every one of these claims.

Given that the employer and/or co-workers denied having knowledge of an accident occurring and because of the worker's prior contact with the WCB on a regular basis, Review Office was unable to establish that the worker sustained personal injury by accident, as required by The Workers Compensation Act (the Act). His claim for compensation was therefore denied. On October 25, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

On January 18, 2005 an oral hearing took place at the Appeal Commission. Following the hearing, the Panel requested additional medical information be obtained from the worker's treating orthopaedic specialist prior to discussing the case further. On April 14, 2005, the worker was provided with a copy of the orthopaedic specialist's report dated September 29, 2004 and was asked to provide final comments. On April 29, 2005, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

Subsection 4(1) of 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 subsection 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."

On a referral by the treating physician, the worker was examined by an orthopaedic surgeon on or about September 29, 2004, which was some 18 months post alleged accident. Following his examination, the surgeon reported his findings to the treating physician:

“On examining him, there is no effusion in the knee. Ligaments are stable. He has a bit of crepitus as the knee is put through a range of motion. There is some mild retropatellar tenderness, more marked medial joint line tenderness. X-rays show that he has some early degenerative changes in his knee. I suspect that he has a combination of medial compartment arthritic changes with probable degenerative medial meniscus tear as well. It is hard to tell what the relationship of this is to his fall.”

We interpret the foregoing medical evidence as describing a condition, which is something other than an injury arising from a traumatic event such as falling to one’s knees.

We find it most peculiar that the worker never mentioned his knee injury to the WCB until 15 months after the alleged event despite his having several active ongoing claims with the WCB. This lack of prompt reporting to the employer and the WCB is in our view more in keeping with the surgeon’s comments previously quoted.

We find that the worker did not sustain an accident resulting in injury, which arose out of and in the course of his employment. There being no accident as defined by the Act, the claim is not acceptable. Accordingly, the worker’s claim 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 1st day of June, 2005