The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker disagrees with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the evidence on file did not establish that an "accident" occurred out of and in the course of job duties on December 3, 2009. A hearing was held on March 29, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On March 12, 2010, the worker filed a claim with the WCB for a right knee injury that occurred on December 3, 2009. The worker indicated that he slipped on some stairs when coming out of a crawl space. The injury occurred when he twisted and bent his knee back. The worker stated that he delayed in reporting the accident as he did not feel it was a serious injury.

On March 25, 2010, a WCB adjudicator spoke with the worker by telephone to gather additional information. The worker indicated there were no witnesses to the December 3, 2009 accident. At the time of injury, it felt like something broke on the inside of his right knee. He worked the next day and was off on the weekend. The next week he injured his hand at work and attended a doctor for treatment. He mentioned his right knee and was referred for x-rays. He was then off work for two weeks because of his hand injury. The worker indicated that when he returned to work his right knee continued to bother him. He heard cracking/crunching in his knee and it was swollen and he limped. The worker noted that he may have mentioned to someone at work that his right knee was bothering him in passing. The worker reported that when he knelt down, his knee locked up. At the end of the day his knee pain was unbelievable. The worker noted that he had a prior WCB claim for right knee difficulties.

On April 14, 2010, the employer advised the WCB that the worker reported the accident on March 12, 2010. The worker reported that he slipped off one of the stair treads and the other leg stayed up and he twisted his knee looking back. The worker did not miss any time from work. The employer confirmed that the worker had another injury at work on December 10, 2009 and was off until January 4, 2010. The worker decided to report the accident as his right knee was giving him discomfort. The employer had concerns with the delay in reporting as they advise employees to report accidents when they occur.

Information received from the treating physician showed that the worker attended for treatment on December 11, 2009 and reported that he fell on his right knee at work on December 3, 2009.

On April 21, 2010, the worker was advised that his claim for compensation was denied as the WCB was unable to establish that an accident occurred given that he did not report the accident to his employer until March 12, 2010 and the medical evidence confirmed initial examination on December 11, 2009.

On April 26, 2010, the worker asked the WCB to contact a co-worker for additional information.

On May 5, 2010, the co-worker indicated that he did not witness an accident but first became aware that the worker had right knee problems just after Christmas 2009 when he had returned to work. The worker showed him his knee brace and where/how he had injured his right knee. Prior to the incident, he knew that the worker had prior knee problems but was uncertain which knee it was. He worked with the worker in construction since 1984. Since January 2010, the worker continued to mention that he had problems with his right knee. The co-worker also confirmed that during the first two weeks in January 2010, the employees were working overtime and the worker had refused them due to his knee problems.

An MRI report of the right knee dated April 27, 2010 reported the following findings: "…a complex-type degenerative tear at the posterior horn of the medial meniscus is felt to be present. There is also evidence of a radial-type tear involving the inner margin of the mid body of the lateral meniscus."

In a second decision dated May 5, 2010, the adjudicator informed the worker that after considering the information obtained from the co-worker, no change would be made to the April 21, 2010 decision. On June 14, 2010, a worker advisor acting on the worker's behalf, appealed the decision to Review Office.

On August 24, 2010, Review Office confirmed that the worker's claim was not acceptable. Review Office determined that the evidence on file did not establish an "accident" occurred out of and in the course of job duties on December 3, 2009 and that medical testing reported degenerative conditions in the worker's right knee. On September 17, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on March 29, 2011.

Following the hearing, the appeal panel requested additional information from the worker's treating physician. On April 26, 2011, all interested parties were provided with the information received from the treating physician and were asked to provide comment. On May 24, 2011, the panel met further to discuss the case and rendered its final decision.

Reasons

Chairperson Scramstad and Commissioner Walker:

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing and was assisted in his appeal by a union representative. In support of his claim, the worker called a co-worker who gave evidence regarding his knowledge of the worker's injury.

The worker provided photos of the work area where the accident occurred. He advised that on December 3, 2009 he was exiting from a crawl space when he fell. He noted that the stairway he was descending at the time of the accident was steep, with approximately five degrees of angle. He provided a detailed description of the fall.

With regards to the delay in reporting the accident to his employer, the worker explained that the accident happened at approximately 3:30 PM near quitting time. As there were no forms in the shop he did not complete a form. He said that the next day his "knee was sore, but I didn't think it was too bad."

The worker advised that on December 10, 2009 he cut his hand at work. He acknowledged that he filed a claim for this injury. He said that on December 11, 2009 he saw a physician about this hand injury and he also asked the physician about his knee injury. He was sent for an x-ray. He was told that they didn't find anything on the x-ray. He said the physician advised "You've got a bit of arthritis. That's all I could find." He advised that the physician commented further that "Anybody your age, [worker's name], 50, would have that kind of arthritis in their knees."

As he was already off work for his hand injury, he asked the physician to just prescribe a knee brace, which the physician has done with a prior knee injury. He indicated that as he was off for his hand injury and his physician told him he could not find anything, it was ridiculous to file a second claim.

The worker advised that he used a prescription medication which was prescribed for another medical condition which provided relief for his knee injury. He said his physician told him it was an anti-inflammatory.

The worker advised that he had booked off during Christmas and was off work for his hand, so returned to work on January 4. He said his knee was still sore but he worked with it and it was gradually feeling better, but he had problems straightening after kneeling. In March he said that when he tried to stand up, his knee locked, and he could not straighten it. At that point he returned to see his physician and also filled in an accident report.

When asked why he did not complete an accident form or tell the employer the worker said "The doctor said it wasn't that bad."

The worker advised that the knee injury seemed to improve over January and February but worsened in March. He said he was working in a kneeling position and went to stand up but could not straighten his leg. He said it was not the pain but that his knee was not working properly. He advised that he subsequently had an MRI.

The worker denied there was any incident between the end of February and March 15 which prompted him to see his doctor. He said he didn't notice anything wrong with the mechanics until he worked on [that day] in March.

The worker's witness gave evidence regarding his knowledge of the accident. The co-worker advised that he was in the lunch room after New Years with another co-worker discussing overtime duties and had noted that the worker was refusing overtime which he considered to be unusual. The worker approached them and later he told the co-worker about his injury. He described the injury and showed him the brace. The worker did not see the accident and could not recall with certainty which knee the worker had injured. He advised that he is familiar with the stairs and referred to them as ladder stairs. In answer to a question from the union representative the co-worker indicated there are no handholds on these stairs.

Employer's Position

The worker was represented by an advocate who made a submission on behalf of the employer. She advised that the employer's position is that the facts do not establish an accident arising out and in the course of employment. The employer's reasons for taking this position include:

    · The date of accident is December 3, 2009 but it was not reported until March 12, 2010 
    · The worker had many opportunities to report the injury to the employer but did not do so until March 2010
    · Initially the worker reported that he did not fall but at the hearing he indicated that he did fall
    · On March 25, 2010 the worker advised the adjudicator there were no witnesses to the incident and that he
      may have mentioned it to someone but later provided the name of a witness after the claim was denied 
    · That the worker was aware of injury reporting procedures, as he had a claim in 1997 and had a claim one
      week after this incident on December 10, 2009
    · The treating physician confirmed that the worker had told him he injured his knee at work yet did not appear to 
      encourage his patient to file a claim

The employer's representative noted that the worker's knee started feeling better in January but got worse in March. She questioned whether the knee injury was due to an accident or just part of the natural progression of degenerative changes in the knee. She noted various inconsistencies in the evidence. She submitted that the worker's knee problems are due to the documented degeneration in his knee shown on the x-ray and MRI.

Analysis

For the worker's appeal to be successful, we must find that the worker sustained an injury arising out of and in the course of his employment. The majority panel was able to make this finding. We find, on a balance of probabilities, that the worker sustained an injury to his right knee at work on December 3, 2009 and that his claim is acceptable. The claim should now be returned to the WCB to adjudicate the type of injury sustained, including the diagnosis, and resulting benefits. We make no findings on the nature of the injury sustained by the right knee.

In accepting this claim we place significant weight on the information from the worker's physician. We note that the physician's chart notes for December 11, 2009 indicate that the worker's knee was examined and that the treatment plan included an x-ray ordered and a knee brace. A copy of the x-ray report dated December 11, 2009 is on file.

We also note that the physician advised in a letter dated April 9, 2010, that the worker "…reported December 11 that he had fallen at work on the knee December 3, 2009." The physician advised that "On exam in my clinic December 11 the knee was warmer that (sic) the contralateral knee, mildly swollen and tender in the retropateller region and to a lesser extent on the medial joint line."

We accept the description of the accident provided at the hearing, specifically while descending a steep stair from a crawl space, the worker's left foot slipped causing him to fall into a door and twist his right knee.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 20th day of June, 2011

Commissioner's Dissent