The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right knee condition was not the result of a workplace accident. A hearing was held on May 22, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right knee injury that occurred on November 23, 2012. The worker indicated that he did not report the accident to his employer until December 4, 2012 as he thought his knee condition would improve. The worker advised that he was working on a job site on the day of accident and he was crossing the road when he slipped on ice and twisted his knee.

Information from the employer (Employer's Accident Report) stated that the worker did not report the incident and his actions after he was hurt were suspicious. The worker was a safety coordinator and he was aware of the reporting procedures.

Medical information showed that the worker attended a medical clinic for treatment on December 5, 2012. The date and time of accident was recorded as November 20, 2012 at 13:30 hours. The area of injury was the right knee. The worker's description of the accident was "While crossing street slipped and twisted right knee. Continued working. Has not missed any work. Did not seek medical care. Reported the accident in his daily assessment. Taking Advil". The worker's subjective complaints were: "Pain right knee getting progressively worse." The diagnosis was effusion right knee and the worker was referred to a sports medicine doctor.

The sports medicine doctor's report showed that the worker was seen on December 5, 2012 with the following accident description: "Injured R knee Nov 23, left work walking from construction site, twist injury while crossing the road, near fall, progressive pain, increased pain Dec 4 while running, pain to medial knee, last evening unable to WB (weight bear), confirms it was only a twist injury, knee swelling, pain with pressure to posterior knee with sitting." The diagnosis queried a right medial meniscal tear with osteoarthritic aggravation. An MRI was ordered.

On December 12, 2012, the worker advised the WCB that he did not fall on November 23 but there was instant pain in his right knee. He thought if he rested his knee it would be okay but it kept on aching. There were no witnesses and he did not make any complaints to anyone at work until December 4. The worker said he marked the incident down in his book on November 23. He said he rested at home and tried not to put weight on his knee. On December 4 he was at the same job site and the pain increased to the point where he could not put any weight on it. He then reported the November 23 incident to the employer.

On December 13, 2012, the employer's health and safety manager stated that the worker e-mailed him on December 4 stating that he slipped for the first time in November and then today when he ran across the road, he hurt his knee again. He said it really hurt and he was going to see a doctor. According to the GPS records for December 4, the worker went to the mall for an hour after he left the job site. The worker said he went to the mall for coffee and to take weight off his foot. On the afternoon of December 4, the manager spoke with the worker about his job performance as there had been some issues. There was talk of the worker being laid off after the New Year. The employer questioned why the worker did not come back to the shop to report the incident if it hurt that badly.

On December 14, 2012, the WCB adjudicator spoke to the worker by phone to advise him that his claim was not accepted as there were delays in reporting and seeking medical treatment. The worker said he understood and asked if the WCB could accept the December 4 incident. The adjudicator reminded the worker that he had told her that his knee just kept getting worse and there was no injury or accident.

On December 14, 2012, the worker was advised in writing that his claim for compensation was denied as the WCB could not establish the development of his right knee difficulties and an accident occurring at work on November 23, 2012 given that he delayed in reporting an accident and seeking medical attention.

On January 25, 2013, the worker was advised that the WCB was unable to establish that he sustained a workplace accident on December 4, 2012. The adjudicator stated: "There has been no specific incident identified to account for right knee difficulties on December 4, 2012. Information provided by your healthcare provider confirmed you had ongoing difficulties stemming from a non-reported/non-compensable event that occurred in November 2012.

Additionally, the diagnosis of effusion offered by the healthcare provider at the time of their examination on December 5, 2012 is inconsistent with a specific accident or your work activities on December 4, 2012".

The Worker Advisor Office submitted an appeal to Review Office on February 1, 2013 outlining the position that the worker's claim was acceptable because the evidence supported that he injured his right knee on November 23 and then again on December 4, 2012. The worker advisor submitted that these were two separate accidents, both arising out of and in the course of the worker's employment. He noted that the delayed reporting of the November 23 accident was reasonably explained and was within the timeline set out in the legislation.

A submission was also made to Review Office by the employer's advocate on February 27, 2013. It was the employer's position that there was no evidence that a workplace injury occurred to cause the worker's symptoms and disability and that there were alternate, non-compensable and non-work related plausible causes for the worker's symptoms.

On March 20, 2013, Review Office determined that the claim was not acceptable. Review Office stated there was no documentation on file to indicate an event was witnessed on November 23. There had been no follow-up, there was no visible evidence of an injury and the worker failed to report the incident to his employer in a timely fashion. Review Office said there was no evidence to suggest that the worker was injured from a chance event and therefore the November event did not meet the definition of an accident.

Review Office indicated that it found discrepancies between the two independent medical reports from the December 5, 2012 appointments regarding the event of December 4, 2012. The first doctor's interview notes did not include a mention of a December 4, 2012 event despite this being the first medical workup in relation to an injury. Given the worker's opportunity and subsequent failure to report an incident on December 4, 2012, it could not substantiate a chance event occurred that day. The discrepancy in the medical reports the following day further supported this conclusion. On April 3, 2013, the Worker Advisor Office appealed Review Office's 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. 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.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker's claim was acceptable because the evidence supported that he injured his right knee on November 23, 2012 and then again on December 4, 2012, which were two separate accidents arising out of and in the course of his employment. Both accidents were reported to the employer on December 4, 2012, which was well within the usual timeframes. The worker sought medical treatment on December 5, 2012, and reported both workplace accidents to the sports medicine doctor. The mechanism and dates of injury were consistently reported to the WCB, employer, and medical providers. The worker had no difficulties with his right knee prior to the November 23, 2012 accident and the injury mechanism on that date was consistent with an acute medial meniscal tear, which diagnosis was later confirmed. While the worker did not immediately report his initial workplace accident, he provided reasonable explanations for the delay. On December 4, 2012, the worker formally reported both accidents to his employer later that evening. It was submitted that this was because the worker either aggravated or caused further injury to his already injured right knee. The fact that he reported both incidents on that date supported that another accident did occur on December 4.

Overall, it was submitted that the evidence was sufficient to establish workplace accidents happened and resulted in injury. On that basis, it was asked that the claim be accepted.

The employer’s position:

An advocate and the employer's health and safety manager appeared at the hearing. The employer agreed with the WCB's decision to deny the claim. It was submitted that there was no evidence that a workplace injury occurred to cause the worker's symptoms and disability. There were alternate potential non-compensable and non-work-related causes for the worker's symptoms. It was also noted that there was significant delay in reporting the injury and work incidents to both the WCB and the employer. As safety officer, the worker would have been aware of the proper reporting requirements. There was further delay in seeking medical attention and discrepancies in the history reported to the doctors. The employer also noted that the worker had a performance evaluation on December 4 which would have been an obvious opportunity to talk about his knee and the alleged November 23, incident, but he did not do so. There were irregularities on file and it was submitted that the reason why the worker stopped working was due to other factors in his life.

Analysis:

The issue before the panel is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury during the course of his employment on November 23, 2012 and/or December 4, 2012. We are able to make that finding.

The worker's evidence was that he hurt his knee while working on two occasions. Coincidentally, both times the injury occurred at a location where the worker had to cross a busy road to get to the job site. The first time, the worker slipped on some ice and twisted his knee as he was crossing the road. On the second occasion, the worker was running across the road when he had to stop quickly to avoid traffic. When he planted his foot, he twisted his knee again.

With respect to the November 23, 2012 date, the worker did not report the incident to anyone nor did he seek medical attention. The worker's explanation at the hearing was that although he was the safety coordinator and was familiar with the reporting processes, he thought that if he just stayed off his leg it would get better. The worker also referenced some personal issues affecting his life which were clouding his judgment. The panel is sympathetic to the worker's situation; however, given the lack of reporting, we find that the evidence is not sufficient to establish an acceptable claim for an accident which occurred on November 23, 2012. We are not making a finding that the slip and twist did not occur, but rather that there is not sufficient evidence to support an acceptable claim.

With respect to the December 4, 2012 date, the panel finds that there is enough evidence to satisfy us on a balance of probabilities that the worker suffered personal injury by accident during the course of his employment. In coming to this conclusion, the panel relied on the following:

• On December 4, 2012 at 9:15 pm the worker sent his supervisor an email indicating that he had slipped for the first time in November, and then again on December 4, as a result of which he injured his right knee.
• After the incident on December 4, 2012, there was a distinct worsening of the worker's right knee condition, such that he went to seek medical attention the next day. The worker's evidence was that he was in extreme pain that night and that he took a strong painkiller before he went to bed and again in the morning due to the increased pain.
• When asked what led him to report both accidents, the worker's evidence was that after the December 4 incident, he could no longer put any pressure on his leg so he knew then that it was serious enough that he had to report the injury. The worker had previously been self-modifying his duties to accommodate the pain in his right knee but he recognized that he was not going to be able to "sit and relax and perform my duties anymore."
• The sports medicine doctor's report from December 5, 2012 provides a consistent report of increased pain to the right knee on December 4 while running, which led to swelling and an inability to weight bear.
• Both the walk-in clinic doctor and the sports medicine doctor indicated on December 5 that the worker was disabled from his regular job duties and that he be restricted to sedentary duties.

Despite the irregularities regarding the completion of a risk assessment form, the worker's whereabouts after leaving the job site and the fact that lay-offs had been discussed earlier that day, the panel finds that there is nevertheless sufficient evidence to satisfy us that the worker suffered injury to his knee on December 4, 2012.

The examination notes of the sports medicine doctor queried a degenerative medial meniscal tear, with osteoarthritic aggravation. A subsequent MRI revealed a complex tear of the medial meniscus, for which the worker underwent surgery on January 10, 2014. The panel accepts that as a result of the December 4, 2012 workplace accident, the worker either suffered a medial meniscal tear or a pre-existing degenerative tear was enhanced, such that surgery was made necessary. Accordingly, the worker has an acceptable claim for his right knee injury.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of July, 2014