Decision #14/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker sustained an injury at work.
The worker filed a claim with the Workers Compensation Board (WCB) for an injury which he alleged occurred at work on January 5, 2006. The worker did not advise the employer until February 6, 2006 or the WCB until February 28, 2006. The WCB determined that the worker’s claim was not acceptable. The WCB’s Review Office confirmed this decision. The worker appealed to the Appeal Commission.
An appeal panel hearing was held on December 5, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on December 5, 2006.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported that on January 5, 2006, he fell on snow and ice during the course of his employment and in the process “…twisted my left knee, landed on my right hand, and when falling I stretched my right arm out”. He did not report the incident to his employer until February 6, 2006 as he thought that he would be okay.
On February 28, 2006, the worker told a WCB adjudicator that he continued to perform his full regular duties and missed the occasional shift from January 5, 2006 until he first attended medical treatment. The worker thought that he may have casually mentioned his injury to some co-workers but could not provide the names or dates of these conversations.
Medical information showed that the worker informed his physician on February 6, 2006 that he slipped and fell at work. The diagnosis rendered was a left knee and right elbow sprain.
In a decision dated March 1, 2006, the worker was informed that his claim for compensation had been denied. It was the adjudicator’s finding that given the worker’s delay in reporting and seeking medical attention, he was unable to establish a relationship between the diagnosis and an accident occurring at work.
A report was then received from an orthopaedic specialist dated March 6, 2006. He stated “Referral letter from the patient indicates that this patient has history of injury to the left knee joint and right elbow due to a fall six weeks ago while he was working for [employer]. On description it seems to be medial stress injury to the knee and out stretched injury to the right elbow due to the fall. Immediately patient had left knee pain and right elbow pain with some swelling. … Patient stopped working on February 6, 2006 according to the advice of patient’s family physician.” Following his examination of the worker, the specialist thought that the worker had lateral epicondylitis of the right elbow and internal derangement of the left knee, most likely injury to the cruciate and lateral collateral. In later correspondence, the specialist confirmed through an MRI of the left knee, that the worker had “moderate chondromalacia of the medial femoral condyle. Intrameniscal tear in the posterior horn of the medial meniscus.”
On March 20, 2006, an advocate acting on the worker’s behalf, appealed the decision to Review Office. He submitted that based on the objective medical evidence from the family physician and orthopaedic specialist, there was a relationship between the diagnosis and the work that was done by the worker on January 5, 2006. The advocate also pointed out that the worker did not seek medical help and report the injury to his employer at the time of the accident as he had hoped that this particular injury would not be serious but unfortunately this was not the case. When his problems persisted he promptly informed his employer and sought medical care.
Prior to considering the advocate’s appeal, Review Office obtained additional information from the employer on May 18 and 19, 2006. This information revealed that the worker delayed in reporting an injury even though he was aware of proper reporting procedures and that other co-workers could not confirm any knowledge of an injury. The employer indicated that they were aware that the worker had mentioned a swollen knee in January 2006 but he did not report a “slip and fall” occurring at work.
In its decision dated May 25, 2006, Review Office confirmed that the claim for compensation was not acceptable. Review Office outlined its position that there was no evidence to confirm that the “slip and fall” incident had occurred or that the significant injuries for which the worker was claiming, arose out of any work event.
On August 29, 2006, a worker advisor appealed Review Office’s decision and a hearing was arranged.Reasons
Applicable Legislation
For the worker's claim to be accepted by the WCB, the worker must have had an accident as provided in subsection 1(1) of The Workers Compensation Act (the Act). Further, the accident must have arisen out of and in the course of his employment as provided in subsection 4(1) of the Act.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on his behalf. He answered questions posed by his representative and the panel.
The worker advised that he was pulling cables out of a box on his truck when he slipped on the icy ground. He advised that he fell sideways landing on his hand and that he immediately felt a sharp pain in his left knee. He continued working after the incident. He advised that he did not appreciate that he had a significant injury and thought it would just get better. The worker stated that he used a tensor bandage on his knee. He missed some days from work but was not able to recall which days.
The worker advised that he was able to continue working by selecting which jobs to take. He selected jobs that did not bother his knee or arm. He advised that his knee worsened when he replaced the seat in his truck which required him to apply more pressure on the clutch. His knee became more swollen and he attended his physician.
After seeing his physician the worker remained off work for a brief time but returned because he needed to work for financial reasons. He attempted to select jobs that bothered his knee less. He received a brace to support his knee.
The worker’s representative provided a summary of the claim. He submitted that although the worker did not comply with the notice requirements, his claim is a just one and ought to be allowed.
Employer’s Position
The employer was represented by its vice president. The representative provided information in support of the worker’s claim and answered questions posed by the panel.
The employer’s representative explained that in the winter months the drivers do not attend at the office regularly. In the case of the worker, his wife would call in absences and looked after submitting bills for him. As a result the employer had limited interaction with the worker.
The employer representative advised that in late January she saw the worker and noted that the worker walked with a limp and that his knee appeared swollen. The worker told her that his knee was worse since he replaced the seat in his truck and he had to put more pressure on the clutch. She did not ask what caused the injury. She suggested that he see a doctor.
The employer representative advised that she checked the employer’s records and confirmed that the worker had a call on January 5, 2006 at the address noted on his report of injury form.
The employer representative advised the panel that drivers tend to trivialize incidents and believes that is what happened in this case. She reported that the employer has moved the accident log book to the dispatch area because of this incident.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For the appeal to succeed the panel must find that the worker suffered personal injury by accident arising out of and in the course of his employment. In layman’s words the panel must find that the worker was injured while working. The panel made this finding.
The panel considered all the evidence and found, on a balance of probabilities, that the worker’s claim is acceptable. The panel finds that the worker was injured when he slipped on ice while pulling cables at work on January 5, 2006.
The employer representative provided the following evidence which supported the worker’s claim:
- in late January the employer representative noted that the worker had a swollen knee.
- the employer representative reviewed the employer’s records which confirmed that the worker had attended on the day of the accident at the location noted on the worker’s report of injury.
- the employer representative also provided her opinion that drivers tend to trivialize matters and do not report all things that happen.
The panel relies upon the employer representative’s evidence. The panel also notes that the worker began missing work on January 9, 2006 due to the injury which is consistent with an injury having occurred in early January. The panel has considered the worker’s description of the accident and finds that the mechanism of injury described by the worker is consistent with the injury. The panel also notes the worker’s explanation that the injury worsened after his truck seat was replaced, causing him to apply more pressure to the clutch of his truck.
Having regard to all the evidence the panel finds that the worker’s claim is acceptable and the worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 24th day of January, 2007