Decision #121/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 19, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 19, 1999, and August 13, 1999.

Issue

Whether the claimant sustained personal injury by accident arising out of and in the course of his employment on May 21, 1998.

Decision

That the claimant sustained personal injury by accident arising out of and in the course of his employment on May 21, 1998.

Background

In June 1998, the claimant submitted an application for compensation benefits in relation to a May 21, 1998, right knee injury which occurred when he jumped off a 3 ton truck. According to the application form, the claimant did not report the injury to his employer until June 5, 1998.

On June 12, 1998, the employer questioned the validity of the claim and a June 9, 1998, memo from an Employment Officer was submitted. The memo stated that the claimant injured himself on May 21, 1998, but did not report or complete a green card at the time.

The day following the injury, the claimant called in sick and still did not report the injury. The claimant reported time loss on June 1, 1998, the day he exhausted his sick leave credits.

In a sworn statement dated July 16, 1998, the claimant indicated the following:

  • on May 21, 1998, he was coming down the ladder of a truck box when he jumped down approximately 5 feet to the ground. His right knee did not collapse outwards or inwards and he just landed and felt his knee twinge. The claimant stated that two co-workers were present when he hurt his knee. He stated that he did not report the accident to his supervisor or filed a green card which he should have done at that time.
  • the claimant stated that he went home after work and while seated in a chair he bent his right knee a little and the knee locked. He felt severe pain around the back of his knee and down the leg. The claimant advised that he called work the next day and reported that he hurt his knee and couldn’t work. The claimant stated, “Whichever person it was, asked if I wanted to take sick time or what. I said I would just take sick time. I have never been on compensation and I figured the knee problem would not be serious. I thought I would just take sick time.”

A statement was also taken from a clerk dated July 17, 1998. The clerk stated, “On May 22, 1998, (the claimant) contacted me to book off work. All he said was that he was booking off sick. He did not mention anything about a work related accident. I am very specific with my documentation, whether it is sick, WCB, child ill, or whatever. As you can see on my records, it is noted he called in sick.”

The claimant’s co-worker wrote the following on July 17, 1998: “Just a few words to say that (the claimant) told me he hurt his leg one day -- I can’t remember the time or date it was.”

Medical information dated July 14, 1998, showed that the claimant’s right knee pain could be secondary to aggravation of a patellofemoral problem or a degenerative lateral meniscal tear.

On July 24, 1998, the claimant was notified by Claims Services that his claim was not acceptable. Claims Services referred to Section 4(1) and 17(5) of the Workers Compensation Act (the Act) and was of the opinion that the evidence did not establish that an injury occurred at work.

On October 6, 1998, a union representative appealed the above decision to the Review Office. The union representative made reference to various reports on file which included a hospital report dated May 22, 1998, a doctor’s first report dated May 25, 1998, and comments made by a WCB medical advisor on July 21, 1998. Based on these reports and the comments expressed by the claimant’s co-worker on July 17, 1998, it was contended that an accident occurred on May 21, 1998, arising out of and in the course of employment as described by the claimant. “Since there is no evidence to support another more probable cause for Mr. [the claimant’s] right knee injury, prior to or after the work related accident of May 21, 1998, we feel that the claim is a just one and ought to be allowed taking into account the weight of the available evidence.”

In a decision dated December 18, 1998, the Review Office confirmed that the claim was not acceptable. Review Office appreciated there was information to suggest the claimant possibly had an accident at work on May 21st which may have caused or aggravated his right knee symptoms. As well, the claimant may have had increased symptoms in the right knee as the inevitable consequence of some pre-existing condition which was aggravated at a time and place not specifically connected to the claimant’s employment. Review Office acknowledged that current information did not directly associate the claimant’s onset of right knee symptoms to an accident in the course of employment.

Review Office believed that a probable causal connection between the right knee injury and some work related accident had been further hampered by the claimant’s failure to provide the employer with prompt notice of an accident as required by section 17 of the Act and by the absence of sufficient reason for the delay in providing notice. In conclusion, Review Office was not satisfied there was enough evidence to indicate that the worker’s claim was a just one which ought to be allowed to the extent required to waive the section 17 bar to compensation benefits.

On May 19, 1999, an Appeal Panel hearing was conducted at the request of the union representative. Prior to rendering a final decision, the Appeal Panel requested and obtained a copy of an operative report dated March 12, 1999, which showed a postoperative diagnosis of “torn lateral meniscus of the right knee, chondromalacia changes of the medial femoral condyle of the right knee and also chondromalacia patella.” A copy of the operative report was distributed to all interested parties for comment. On August 13, 1999, the Panel met to render its final decision.

    Reasons

    The issue in this appeal is whether or not the claimant sustained personal injury by accident arising out of and in the course of employment.

    The relevant subsections of The Workers Compensation Act (the Act) in this appeal are subsections 1(1) which defines accident and 4(1) which 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.

    In accordance with 1(1) the panel must initially be satisfied that there has been an accident within the meaning of the Act.

    Subsection 1(1) states:
    Definitions

    1. (1) In this Act, "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

      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
      2. (1) In this Act, "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

    Subsection 4(1) states:
    Compensation payable out of the accident fund

    1. (1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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.
      2. (1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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.

    Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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. Relevant Workers Compensation Board (WCB) policies is Section 44.05, Arising Out of and in the Course of Employment.

    In determining this appeal we reviewed all the evidence on file and given during the hearing process. We find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant sustained an accident on May 21, 1998 which arose out of, and in the course of his employment and which caused or enhanced his torn lateral meniscus of the right knee. We note that the claimant did delay in reporting the accident to his employer until approximately June 1, 1998, however we do not find this to undermine his claim based on the evidence.

    We note that the claimant indicated in his testimony that he had been going up and down a ladder in order to clean up garbage bags and that near to the end of the day he felt a sharp pain in the side of his right knee. Later on, at home, the claimant indicated he was sitting in a chair and while repositioning his knee by rotating it inwards his knee locked. We note that the claimant's description of accident and events on that day has remained reasonably consistent. The claimant further indicated that he had a bad night because of his knee and was taken to the Emergency Department of a local hospital by a friend very early (0500am) the next morning. This is confirmed in the Emergency Room Report dated May 22, 1998.

    We place particular weight on the evidence in the Emergency Department Report because of its proximity and relevance to the alleged incident. We note in this report that the claimant clearly associates his symptoms to his activities at work the day before and that this evidence is provided not that long after the event, " jumping off a ladder on & off/repeatedly at work, shovelling dirt pain in right knee since then (yesterday)." The attending emergency physician diagnoses a possible torn medial meniscus and advises the claimant to stay off work until approved by his family physician.

    The claimant followed up with his attending physician as advised and we particularly note that May 21, 1998, the day of the alleged accident, was a Thursday, the claimant was seen in the Emergency Department in the early hours of the next day, Friday May 22, 1998, and subsequently saw his attending physician right after the weekend on Monday May 25, 1998. We also note the similarity of the history of injury given by the claimant to his attending physician, " works on a soil truck, jumped off truck injuring his right knee."

    A WCB medical advisor responded in a memorandum to file dated July 21, 1998 that the mechanics of the accident were consistent with the claimant's current knee condition and, when asked whether it was more likely that the incident at work was the main cause of the knee problem, or the incident at home responded, " jumping 5 off a truck likely to be the cause of a knee injury rather than bending his right knee while sitting at home."

    The orthopaedic consultant to the WCB Review Office was also asked to give his opinion and we note that the medical advisor in giving his opinion was aware of the MRI findings of September 18, 1998 and the initial report of the claimant's attending orthopaedic specialist, we note the following evidence from the medical advisor's report:

    " The claimant denies any significant problems with his right knee prior to the reported CI of May 21, 1998. Previous problems he alludes to may have been due to the chondromalacia patella which certainly did not arise as a result of the CI occurring May 21, 1998.

    However, one can tear a meniscus in jumping from a height of 2 to 5 feet, the mechanism primarily being one of axial load on the knee with some element of rotation.

    It is possible to tear a lateral meniscus with initial minimal symptoms and then complete the tear at a later time with further trauma to the knee.

    The reported incident at home would not tear a meniscus however it could cause an already torn meniscus to displace and lock the knee. The claimant also reports the knee locking a second time June 5, 1998.

    It is also possible he had a small tear on the meniscus prior to the CI of May 21, 1998 and could have extended the tear if he jumped from a height."

    Based on the above noted evidence we conclude that the claimant did sustain an accident on May 21, 1998 as a result of his activities while in the course of his duties which caused or enhanced the lateral meniscus tear of the claimant’s right knee. Therefore we find the claim to be acceptable and allow the claimant’s appeal.

    Panel Members

    D.A. Vivian, Presiding Officer
    A. Finkel, Commissioner
    R. Frisken, Commissioner

    Recording Secretary, B. Miller

    D. A. Vivian - Presiding Officer
    (on behalf of the panel)

    Signed at Winnipeg this 24th day of August, 1999

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