Decision #99/09 - Type: Workers Compensation
Preamble
The worker is presently appealing a decision that was made by the Review Office of the Workers Compensation Board (“WCB”) that his left knee injury did not arise out of and in the course of his employment on May 13, 2008. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on July 16, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported that he twisted his left knee on May 13, 2008 while crouching and moving from side to side under a hydraulic lift. The worker indicated that he sought medical attention on June 4, 2008 and reported the injury to his employer on June 3, 2008.
Medical information confirmed that the worker attended a physician for treatment on June 4, 2008. The physician noted that the worker suffered a valgus stress climbing under a lift 3 weeks ago. The diagnosis rendered was a possible meniscal ACL tear.
When speaking with an adjudicator on July 30, 2008, the worker indicated that he felt a stabbing pain in his left knee when he twisted it on May 13, 2008 while crouching. He continued working his regular part-time duties and did not make any ongoing complaints to his co-workers as he only worked with one other person who was also his supervisor on occasion. He advised that he reported the injury to the supervisor the first time he saw him on June 3. The worker commented that he had just recovered from a right knee injury that happened a year ago. He did not think it was that serious until a week or so later but continued to work. The worker indicated that he also worked full time as a firefighter. The worker indicated that there were no other injuries as a firefighter. He did not tell his full time employer that he was having left knee problems as he just tried not to over do it at work.
Later, on July 30, 2008, the adjudicator contacted the worker to advise that when she reviewed his prior right knee claim, she noticed that when the worker had spoken with his case manager on June 2, there was no mention of his current left knee difficulties. The worker advised that he wanted to get that claim closed and did not want to get it mixed up with this claim. The adjudicator advised the worker that given his 3 week delay in seeking medical treatment and the delay in reporting to the employer, she was unable to establish that his current knee difficulties were related to a workplace injury. This decision was relayed to the worker in writing on July 30, 2008.
On September 5, 2008, the worker asked Review Office to reconsider the WCB decision to deny responsibility for his claim. The worker said he felt a sharp pain in his left knee while at work on May 13 and thought it would subside with rest and ice. The pain and swelling did not go away, so on May 26 he made an appointment to see a doctor on June 4. He did not feel that it was unreasonable to wait to see if a minor injury healed on its own.
On September 25, 2008, Review Office indicated that it was referring the case back to initial adjudication to investigate the claim further by obtaining additional information.
In memos dated October 15, 2008 and October 21, 2008, the adjudicator recorded that she spoke with the worker’s supervisor. This individual stated that he saw the worker at the end of the day on May 23 and May 26 and nothing was reported to him about an injury. He commented that the worker probably thought that his knee would get better and just tried to keep on working. He said the worker first reported an injury to him on June 3, 2008. He stated that the worker worked on May 13, 20, 23, 26 and June 3 and 5, 2008.
Based on the information obtained from the worker’s supervisor and medical information from the treating physician who saw the worker on June 4, 2008, the adjudicator advised the worker on October 30, 2008 that no change would be made to the previous adjudicative decision.
The case was then considered by Review Office on November 18, 2008. Review Office found that the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of his employment on May 13, 2008 which resulted in a left knee injury.
Review Office noted in part that the worker did not seek medical attention for his left knee injury until three weeks after the incident. In the opinion of Review Office, this represented a delay in seeking medical attention. It noted that when speaking with a case manager on June 2, 2008 in relation to his right knee compensable injury, the worker did not mention that he sustained a left knee injury on May 13, 2008 so that a new claim could be established. It noted that the worker continued to work his regular duties in his part-time job with the accident employer in addition to his full time job which was physically demanding in nature.
On February 24, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Following the hearing held on July 16, 2009, the appeal panel requested additional information from the treating physician. A report from the treating physician was later received dated August 20, 2009 and was forwarded to the interested parties for comment. On October 7, 2009, the panel met further to discuss the case and rendered its final decision.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:
4(1) 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. (emphasis added)
The worker’s position:
The worker appeared on his own behalf at the hearing. He acknowledged a delay in establishing a claim and, although the employer was not notified until June 3, 2008, he asked that the panel accept his claim as the evidence supported the worker had suffered personal injury by accident on May 13, 2008.
The employer’s position:
Two representatives of the employer participated in the hearing. The employer supported the WCB’s previous decision and submitted that based on the evidence, there was no valid reason for the worker to not report the accident sooner. The employer also noted that the worker had filed three prior claims for compensation and therefore should have been aware of the employer’s policy for immediate reporting of an injury.
Analysis:
The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to his left knee arising out of and in the course of his employment on May 13, 2008. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described an incident on Tuesday May 13, 2008 whereby he was doing routine maintenance and inspection on three hydraulic scissor lifts that day. The servicing of the lifts required the worker to maintain a squatting position and inspect a number of pins, fittings, hydraulics and make adjustments underneath the table that is thirty three inches from the floor. While inspecting the third mechanism at 2:00 PM he felt a sharp pain in his left knee. The worker was able to complete his shift that day, and the next day he began a previously planned one week vacation.
When he went back to work on Tuesday May 20, he still experienced some pain and swelling in his left knee, but continued to perform his duties. He was able to perform all of his maintenance duties by placing his weight in a different position while crouching.
The worker’s evidence was that he attended a walk in clinic on Wednesday May 21 and again on Thursday May 22 where the lineups were excessive and he subsequently became frustrated with the delay in seeing a doctor on both those days and left to attend to other responsibilities. He returned to the employer’s workplace on Friday May 23 and participated in a complex task outside the building. On the following Monday, May 26 he phoned the clinic and requested an appointment to see a physician and was given an appointment date of June 4, 2008.
The worker explained that he did not file a WCB claim as he hoped that he had suffered a minor knee injury and that it would get better on its own. He had worked through minor bumps and strains before and they had always resolved after a short time. He further noted that he had just ended a 13 month WCB claim that had required surgery and a complication had prolonged the recovery. Due to his experience with this extended claim, the worker expressed a disinclination to re-engage with WCB. It was only when he attended his physician who stressed that he should file a claim for an injury that occurred at work, that he felt he should file a claim with the WCB.
In the panel’s opinion, the worker’s claim for compensation should be accepted. The panel found the worker to be credible when explaining why the reporting of his accident and seeking medical treatment was delayed. We accept his evidence that he attempted twice to see a doctor at a walk-in clinic following his return to work on May 20, 2008 and then made an appointment on May 26 to see a physician.
The information provided by the physician at the request of the panel supported and confirmed the testimony of the worker at the hearing and it was further noted that the physician did file his report with the WCB on the same day, June 4, 2008. The mechanism of injury was also consistent with a medial collateral ligament tear and meniscal injury.
With respect to concerns regarding delay in reporting to the employer, the panel notes that the worker had little contact with his supervisor in the part time position in which he was injured and there were no other co-workers. His interaction was limited to the beginning and end of shift unless there was a complex repair that they would work together on. There were only five working days in this time span from injury to medical confirmation.
Overall, the panel finds that the worker suffered an injury to his left knee on May 13, 2008 when he was crouching underneath a hydraulic lift. We therefore conclude that his claim is acceptable. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 20th day of October, 2009