Decision #141/06 - Type: Workers Compensation
Preamble
This appeal arose from a successful request for reconsideration under section 60.91 (now 60.10) of The Workers Compensation Act (the Act). Approximately 15 months after a fall at work, the worker filed a claim for compensation for an injury to his right knee. The WCB and the Appeal Commission denied the claim.
An Appeal Panel hearing was held on August 9, 2006, at the request of the worker. The Panel discussed this appeal on the same day.
Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The Worker Compensation Board (WCB) received a medical report in April 2003 indicating that the worker injured his right knee at work. It was noted that the worker tripped over a box. The diagnosis 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 a letter to the worker asking him to complete a “Worker’s Accident Report” should his injury have happened at work. The worker did not respond to the letter.
On July 19, 2004, the worker contacted the WCB to report an injury to his right knee which he stated happened on March 19, 2003. The worker noted that he told his employer on March 19, 2003 about the accident.
On August 10, 2004, primary adjudication contacted the worker’s employer who advised that there was no record of an injury occurring on March 19, 2003. The employer stated that they didn’t doubt the worker, but that they didn’t remember being told of an injury on that date.
On August 16, 2004, the WCB denied responsibility for the worker’s right knee injury. The WCB stated “we are unable to accept your claim since you did not report your injury to your employer within 30 days, nor did you report it to the WCB within 1 year”.
On September 13, 2004, the worker sent a letter to Review Office stating that he had never received an April 22, 2003 letter asking him to complete a “Worker’s Accident Report” therefore he wanted Review Office to reconsider his claim. The worker also noted that he had an upcoming appointment with a surgeon.
In a decision letter dated September 17, 2004, Review Office determined that the claim was not acceptable as it was unable to establish, on a balance of probabilities, that the worker sustained personal injury by accident, as required by the Act.
On October 25, 2004, the worker appealed Review Office’s decision and an oral hearing was convened before an appeal panel on January 18, 2005. Following the hearing, the panel requested additional medical information 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.
In a decision letter dated June 1, 2005, the Appeal Commission determined that the claim was not acceptable on the basis that “the worker did not sustain an accident resulting in injury, which arose out of and in the course of his employment”.
On December 28, 2005, the worker sent a letter to the Appeal Commission asking for reconsideration of his claim pursuant to section 60.91 of the Act. He noted that the results of his knee operation were not available when the appeal was held.
On August 9, 2006 the worker was seen before an appeal panel.
Reasons
Worker’s Position
The worker made an oral submission and answered questions posed by the panel. He noted that his family physician sent a medical report to the WCB in April 2003 which confirmed that he had an accident in March 2003. The worker advised that he did not receive the letter from the WCB requesting details of the incident. He also advised that he did not report the accident, in part, because the pain from the injury was masked by a prescription painkiller he was using for another injury. He indicated that he was able to cope with the sore knee until an incident in July 2004. At that time the worker was cutting grass on his property when he experienced pain in his knee. He said it was a sharper pain than the pain that he felt previously.
The worker advised that he sought medical attention and was referred to a surgeon. The worker had knee surgery on September 7, 2005. He noted that when he had attended the Appeal Commission in January 2005 he had not had surgery. Once the surgery was completed he sent the operative report to the Appeal Commission. In answer to a question the worker acknowledged that the surgeon told him he had a torn ligament but did not express an opinion on the cause of the tear.
Analysis
The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful, the panel must first find that the worker had an accident. Accident is defined as
"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, and
(c) an occupational disease,
and as a result of which a worker is injured.
The panel, on a balance of probabilities, was unable to find that the worker had an accident. The panel accepts the worker may have fallen at work, but finds that the evidence does not establish that the worker was injured. As there was no injury there was no accident and the claim is not acceptable.
In reaching this conclusion the panel notes that the worker did not report the incident to the WCB until 15 months after the date of the fall. During this 15 month period the worker was in contact with WCB staff on other matters but did not advise WCB staff of the right knee injury. The worker indicated that his knee did not bother him because his pain was masked by a prescription painkiller which he took for another injury. However, the panel notes that the worker was weaned off this painkiller in June 2003 and still did not report an injury. The worker continued to work, without time loss, until the grass cutting incident in July 2004 when his symptoms increased. The panel also notes that in describing his condition the worker refers to sore legs and stated that his legs just got tired at work.
The panel does not find that the medical information to be supportive of claim acceptance. The surgeon’s report of September 29, 2004 notes early degenerative changes in the knee and suspicion of a combination of medial compartment arthritic changes with probable degenerative medial meniscus tear. He comments that “It is hard to tell what the relationship is to his fall.”
The operative report from the September 7, 2005 surgery notes degenerative changes and states “We will keep an eye on the degenerative changes.” The report does not link the findings to a traumatic accident or aggravation of the degenerative condition.
The worker’s appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of September, 2006