The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

In late December 2005, the worker filed a claim with the Workers Compensation Board (WCB) for a right knee and lower back injury that occurred on May 12, 2005. The claim was denied by primary adjudication as it was unable to establish that an accident had occurred in accordance with subsection 1(1) of The Workers Compensation Act (the Act). This decision was also upheld by Review Office. The worker appealed the decision to the Appeal Commission and a file review was held on August 8, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 20, 2005, the worker filed a claim with the WCB for a right knee and lower back injury that occurred in the workplace on May 12, 2005. On this date, the worker claimed that he slipped on carpet in his office which caused him to fall and strike his right knee against a filing cabinet. He stated that the accident was reported to his employer on May 16, 2005. The employer’s report of injury stated, “…to my knowledge – no accident reported – May 15 left company on his own.”

On December 30, 2005, a WCB adjudicator contacted the worker by phone. The worker stated that he suffered an injury on May 12, 2005. He said he told [the company president] on the same day of the accident that he slipped and banged his knee on the cabinet. He was limping and the company president asked him what happened. He worked through the remainder of his shift at his regular duties which was about 7 more hours. He was terminated for not showing up on May 18 or May 19, 2005. The worker noted that he called his employer on May 16 to advise that he would not be in to work as he had a doctor’s appointment but did not indicate what the appointment was for. He could not get in to see the doctor until May 18, 2005. The worker said he hired a lawyer for wrongful dismissal and that his lawyer told him not to submit a claim right away. The worker said he was filing a claim now as he was hoping to get back to work and that he needed a knee replacement. The worker noted that he had a prior compensation claim for blood clots in his right knee and that his claim ended in 1999 or 2000.

The company president was contacted by the WCB adjudicator on January 11, 2006. He stated that he was not aware of any injury occurring on May 12, 2005. He stated that the worker worked on May 12 and 13 and that he left for Minneapolis and returned on May 15. In the middle of the night on May 15, the worker went to the office and cleared out his desk taking files, a printer and a computer. On May 16, the president advised the worker that his position was finished as he had abandoned his job. The president indicated that he spoke with all of his staff and no one was aware of an injury.

On January 20, 2006, the WCB adjudicator contacted a co-worker/employee. She recalled that the worker complained about his leg and back and said he was going for surgery. She was not aware of any injury occurring at work or hearing the worker say that he fell at work.

Medical information revealed that the worker was seen by a physician on May 18, 2005. The description of injury was recorded as “slipped on carpet and hurt R knee and back”. Examination revealed patellofemoral crepitus in both knees. The back was not examined because it was “too painful”. The diagnosis rendered was osteoarthritis of both knees and back. Under “Describe any pre-existing condition that may affect recovery”, the physician responded “OA [osteoarthritis] knees and L-S spine”.

X-rays of the lumbar spine dated May 18, 2005 showed moderate disc narrowing at L4-L5 and mild disc narrowing at L5-S1 with associated spurring. Both knee x-rays revealed spurring at the patellas bilaterally. There was spurring at the medial and lateral compartments of the right knee with slight narrowing of the lateral compartment of the right knee.

On February 6, 2006, a WCB adjudicator spoke with the treating physician. During this conversation, the treating physician indicated that the diagnosis was bilateral osteoarthritis and that the worker has had it for a long time. The physician was asked what the diagnosis would be for the worker’s description of accident, i.e. tripping on carpet and striking his right knee. He replied that the diagnosis would be a right knee contusion and that the recovery period was 4 to 6 weeks. He also commented that the worker did not report this incident as a workplace injury until months later at another visit.

In a letter dated February 7, 2006, the worker was informed that his claim for compensation was denied as the adjudicator found insufficient evidence to conclude that the injuries he sustained on May 18, 2005 were related to an accident arising out of and in the course of his employment. As a basis for her decision, the adjudicator relied on the evidence provided by the president of the company, the co-worker and the treating physician. On February 13, 2006, the worker appealed the decision.

In a decision dated February 24, 2006, Review Office confirmed that the claim was not acceptable. Review Office concluded that based on all the available information, an event satisfying the requirements of subsection 1(1) of the Act could not be met. “The mechanism of injury is not consistent with the diagnosis provided by the worker’s physician and there are no corroborating witnesses to confirm an event occurring at work on May 12, 2005.” On April 21, 2006, the worker appealed Review Office’s decision and a file review was arranged.

Reasons

• The delay in reporting the incident. The worker states that the incident occurred on May 12, 2005 yet did not contact the WCB until December 20, 2005. This delay in reporting the incident and applying for benefits is not consistent with the occurrence of a serious work-related accident. The panel notes that the worker has other WCB claims and should be aware of the process for filing claims.

• The worker’s physician did not send a first report to the WCB until February 2006.  When contacted by the WCB, the physician advised that the worker did not report the workplace injury until months after May 12, 2005.

• The first report provided by the physician describes a degenerative condition and not a traumatic accident. Specifically the physician refers to “OA both knees and back” and “patello femoral crepetus both knees”. The medical information does not support a finding that the worker had a traumatic injury at work on May 12, 2005.

• The employer advised the WCB that he was not aware of an injury having occurred on May 12, 2005. A coworker also advised that she spoke with the worker on May 15, 2005 and that he did not mention a work injury.

The worker objected to the Review Office decision which notes there are no corroborating witnesses to confirm an event occurring at work. The panel agrees with the worker that there is no requirement for a witness for a claim to be accepted, but notes there must be sufficient evidence to satisfy the civil standard of proof on a balance of probabilities. In this case, the panel finds that the standard is not met and that the claim is therefore not acceptable.

The worker’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 25th day of September, 2006