The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her left foot injury was not caused by an accident at work in May 2013. A hearing was held on December 10, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On June 17, 2013, the worker filed a claim with the WCB for a left foot injury that occurred at work on May 1, 2013. The worker stated:

I was going to put garbage in the bin, and instead of the stairs I jumped to the ground from the upper cement (not far). I felt something but didn't think it was serious. I do not recall the date, but it was in May.

About a week later it started to get sore. I went to see [doctor] at [clinic] on May 24^th. X-rays done, but he couldn't see anything. So sent for bone scan May 31. June 14 saw [doctor] again and he said there was a fracture.

The worker provided the names of the head caretaker, two secretaries, her boss and the human resources officer whom she spoke to about her injury.

The employer's human resources officer submitted on June 18, 2013 that the worker did not formally report the incident to her supervisor or anyone else and she continued to work after the alleged accident. The employer spoke with some of the worker's co-workers and at no time did the worker state that she injured herself at work. They assumed her condition was non-work related. The employer stated that given the delay in reporting the incident, the employer could not confirm that a work-related accident or injury occurred on or about May 1, 2013. The worker had two existing time loss claims with the WCB and therefore the worker was familiar with the reporting process and the need to report injuries in a timely fashion.

When speaking with a WCB adjudicator on July 2, 2013, the worker described the accident that occurred on May 1, 2013. The worker indicated that she did not report the accident specifically to anyone but she told her supervisor and co-workers that she was in discomfort and limping. She said her boss told her she should not be jumping down from the loading dock. The worker said she did not report the accident right away as she did not think anything of it. She noted that there was no swelling in her foot during this period and she was able to continue working. The worker said she did not have any prior history of injuries to her foot.

On July 4, 2012, the worker's supervisor told the WCB adjudicator that he recalled the worker mentioning that her foot was bothering her but the worker did not relate it to a workplace accident. The supervisor said he did not think much of it at the time as he was pre-occupied with learning his new job as a lead hand.

On July 4, 2013, the WCB adjudicator spoke with a clerk who recalled that the worker said she hurt her foot but could not recall the worker mentioning that it was a workplace accident. It was not until after the worker came back from a bone scan that she became aware that the injury was from jumping off a ramp. Approximately a week before May 2013, during a casual conversation with the worker, the worker said her foot was sore. She did not notice the worker limping but noted that she does not see the worker much at work.

By letter dated July 4, 2013, the worker was advised that her claim for compensation was denied as she did not report the accident to her employer until May 17, 2013 and she did not seek medical attention until May 24, 2013. Therefore the WCB was unable to make a causal connection between her foot problem and the workplace. On July 16, 2013, the worker appealed the decision to Review Office.

On August 28, 2013, Review Office upheld the decision that the worker's claim was not acceptable as it was unable to establish that the worker suffered a personal injury by an accident. On September 13, 2013, the worker appealed the decision to the Appeal Commission and a hearing was arranged.

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.

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.

The worker disagrees with the WCB and Review Office decisions that her claim is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of her employment.

Worker's Position

The worker was self-represented. She explained how she injured her foot at work and answered questions from the panel.

The worker said that she works evening shifts for the employer at two sites. She works from 2:30 to 6:30 PM at one site and then 7:00 to 10:30 PM at the second site. After 4:30 PM at the first site she is alone. She works with others at the second site.

She said that on May 1, 2013 between 5:00 and 5:30 PM she jumped off a ramp with two garbage bags. She said she was taking a short-cut to save time. When she jumped she felt something in her left foot but ignored it. She said it was a sharp pain in the bottom of the foot. About two weeks down the road her left foot started to bother her. She then booked an appointment at a clinic she had attended in the past for a different injury.

She said that co-workers noticed she was limping. With regards to informing her employer and filing a report she said she made a mistake. She did not feel that she had a serious injury. She said she worked alone at the location where she was injured and there was no one to inform.

The worker said she missed about six weeks due to her left foot injury. She is scheduled to have an MRI. The worker advised that the ramp was about three steps. She confirmed it was in the range of 30 inches. She said that she frequently jumped from the ramp.

In reply to questions about reporting injuries and her delay on this occasion, the worker said that her other workplace injuries occurred when she was working with other staff and that they directed/assisted her to file claims.

The worker said her left foot did not swell and she took an over-the-counter medication for the pain.

The worker noted that she had not missed work on her past claims and returned to work promptly on this claim. She said that she was injured at work and should be allowed to claim.

Employer's Position

The employer was represented by its Human Resources Manager. The employer representative advised that the employer agrees with the WCB and Review Office decisions.

The employer representative stated that:

• the worker is familiar with the accident reporting process
• the worker knows about the need for timely reporting
• the employer is concerned about the lengthy delay in seeking medical and reporting to the employer
• the employer is concerned with how a worker could work so long with a serious fracture
• the worker's co-workers could not verify that the worker had a limp until late May

The employer representative said that the employer does not challenge the worker's integrity but that it is not able to verify that an accident occurred at work.

Analysis

The worker has appealed the WCB and Review Office decisions that her claim is not acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of her employment. The panel finds, on a balance of probabilities, that the worker's claim is not acceptable. The panel finds that the evidence does not confirm, on a balance of probabilities, her injury occurred at work or is related to her work.

In making this decision the panel places significant weight on the following:

• worker's delay in reporting to employer: The panel notes that the worker did not report the incident to the employer until May 17, more than 2 weeks after the date of the incident. The panel also notes that the worker had 21 prior claims, including 2 existing time loss claims, and should be familiar with the claims process. The worker's delay is not consistent with an accident occurring at the workplace. The worker said that she was working alone at the time of the injury and there was no co-worker or supervisor to report to. However, the worker then drove to the second site where she has co-workers. She did not report the incident to her supervisor or co-workers at the second site either.

• worker's delay in seeking medical: The worker did not seek medical attention until May 24th, more than 3 weeks after the incident. The worker explained that at first she did not think the injury was serious, and that as she worked the injury became more painful, to the point that she had to seek medical attention. The panel notes that when she did see a physician, she did not report the incident as being work-related.

• lack of corroboration of injury by co-workers: The worker said that co-workers were aware that she was limping and had a foot injury. The WCB attempted to confirm this information with co-workers. The worker's supervisor recalled that around May 6, 2013 the worker told him her foot was bothering her but did not report a workplace injury. A clerk in the school office recalled that the worker was having difficulties two weeks before her bone scan, which took place on May 31, 2013, but did not indicate that it was work related until later.

• worker's ability to work for almost 6 weeks with a fracture: The time frame provided by the worker indicates that she worked for six weeks before she laid off work due to the injury. The panel notes that a WCB orthopaedic consultant advised that a person with an acute fracture would have difficulty weight bearing on the foot following the incident. This evidence is inconsistent with the worker's evidence that the injury occurred on May 1, 2013.

The panel has weighed all the evidence and is unable to find, on a balance of probabilities, the worker's injury occurred at work. The panel cannot establish that the worker sustained an accident as defined in the Act as the indicia of a work injury are not present.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Marsden, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of December, 2013