The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB")that the worker suffered an injury to his left ankle at work on May 27,2014.  A hearing was held viateleconference on June 22, 2015 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 on June 2, 2014 with respect to a left ankle injury that occurred at work on May 27, 2014. The worker reported that he was walking and stepped on something, rolling his ankle. He did not fall and there was no pain at first. By the next morning, it was sore to walk on. The worker said he reported the accident to a supervisor on May 28, 2014.

On May 29, 2014, the employer's WCB specialist protested the acceptance of the claim. The WCB specialist stated that the worker did not report any left ankle symptoms at the time of the alleged incident until he reported to work the following day. As well, the worker continued to work the remainder of his shift on May 27 which included walking. The employer felt that walking was a normal body movement done inside and outside the workplace and that they should not be held accountable for an injury that is not related to work and could not be attributed to a work hazard.

In a decision dated June 11, 2014, the WCB accepted that the worker's accident and corresponding injury was acceptable. The case manager stated: Given the nature and mechanism of his injury in conjunction with his work duties, the delay in reporting of 24 hours is

not unreasonable and it is the opinion of the Board that [the worker] did sustain an injury which "arose out of and in the course" of his duties...on May 27, 2014."

On October 30, 2014, the employer appealed the June 11, 2014 decision to Review Office on the basis that walking was not a work hazard, there was no uneven ground and the definition of "accident" had not been met. A further submission to Review Office by the employer is on file dated November 25, 2014.

On January 19, 2015, Review Office determined that the worker's claim was acceptable based on the following evidence:

• the worker's statement that he was walking on uneven ground and rolled his ankle. The condition of the ground was a hazard.
• the worker was walking across the employer's yard to reach a truck. The worker consistently reported a work-related cause/activity for his difficulties to his treatment providers, the employer and the WCB.
• the worker stated he was injured on May 27, 2014 and reported his injury to the employer on May 28, 2014. This was within the criteria set forth in subsection 17(1) of The Workers Compensation Act (the "Act").

On January 23, 2015, the employer appealed Review Office's decision to the Appeal Commission a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 employer is appealing the WCB decision that the worker's claim is acceptable. The key issue to be determined by the panel is whether the worker’s left ankle injury arose out of and in the course of his employment.

Employer Position

The employer was represented by its WCB Specialist. The employer representative advised that the employer disagrees with the WCB Review Office decision. She submitted that:

"At the time closest to the alleged incident [the worker] reported to his employer that while walking he twisted his left ankle inward. He did not advise of obstructions, holes, tripping, stepping on anything, et cetera. He was simply walking when he spontaneously rolled his left ankle.

The [clinic] report dated May 28, 2014 states it was possible he was walking on uneven ground, and maybe there was a rock below his left foot. On June 2, [the worker] completed a worker incident report stating that now, yes, he stepped on something, rolling his left ankle. And then on June 10, [the worker] verbally reported to WCB that he was walking on uneven ground, and rolled his left ankle. He didn't mention stepping on anything.

It is apparent by these different versions of reporting of the incident it evolved into something that WCB found compensable. The facts changed, and grew into something that eventually contained a hazard. When initially questioned about the incident there was no work hazard. [The worker] was simply walking when his left ankle rolled.

Initially the uneven ground and rock were not confirmed as probable or fact. By this initial and most accurate description the claim is not acceptable due to the lack of a work hazard. [The employer] does not believe that there was uneven ground or something that was stepped on.

We stick to the original report by [the worker] to his employer in the [clinic], he was simply walking when he rolled his left ankle. Therefore, we ask that this claim should not be found acceptable."

In answer to a question the employer representative acknowledged that there is no investigation report. She also acknowledged that she did not have a picture of the area or a witness statement or knowledge of the terrain at the site of the accident.

In closing the employer representative submitted that:

"So [the employer] is of the belief that as the story evolved into something that then contained a work hazard, but just simply walking would not be a work hazard. "

Worker's Position

The worker was self-represented. The worker described his duties and the accident.

With respect to the accident the worker advised that:

"It's true, I was walking for a short distance. I possibly should have been looking down, but I was looking at my target, which was the back of the truck, and I think walking is a hazard because every morning we have job briefing, and the first thing on the job briefing under hazards is walking conditions, and being in the yard where it's mud and rock, walking is a hazard."

The worker answered questions from the panel. The worker said that he wore standard safety boots, with eight-inch uppers, laced to the top. He described the site of the accident as having tire ruts, rocks, mud and it was uneven. He noted that large trucks regularly back up to the garbage bins creating the ruts.

Analysis

This is an employer appeal of the WCB's decision to accept the worker's claim for injury to his left ankle. For the employer's appeal to be accepted the panel must find, on a balance of probabilities, that the worker's claim for an injury to his ankle did not arise out and in the course of his employment. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker's left ankle injury arose out of and in the course of his employment with the employer. In reaching this decision the panel notes that the evidence supports a finding that the worker injured his left ankle while performing his duties on May 27, 2014. This evidence includes:

• the worker's duties involve working on track maintenance, driving a single tandem truck, and emptying trash in bins at the site where the incident occurred. This site is owned/controlled by the employer;
• the area where the incident occurred had a mud surface mixed with rocks known as ballast. The area also had tire ruts from large trucks;
• the employer, on questioning, acknowledged they did not have specific knowledge of the worksite or ground conditions, and did not dispute the worker's description of the worksite;
• the incident occurred at approximately 2:00 PM, near the end of his shift which began at 7:00 a.m.;
• the worker was walking beside the truck, at the half way point down the side of the truck, when he stepped on uneven ground and rolled his ankle;
• the worker sought medical attention later on the day of the accident;
• the worker reported the accident to his employer at the start of his next shift; and,
• the worker did not miss time from work.

The panel notes that the medical information supports the worker's position that he was injured at work. The worker attended the local health center the day of the injury. The report from the care provider indicted that "Rolled ankle at work. Initially able to weight bear, now unable." The injury was diagnosed as an ankle sprain. The worker saw a physician the day following the injury. The medical report notes that the worker had an ankle injury the day before and that "He said it was possible he was walking on uneven ground and maybe there was a rock below his left foot." He saw another physician on June 2, 2014 who examined the worker's ankle and noted that the worker had "completely healed."

The panel finds the diagnosed injury is consistent with the accident as described by worker.

The panel is unable to accept the employer's position that there was no workplace accident. The employer was unable to provide evidence to support their position. Their primary position appears to be that the description of the accident became more defined over a period of a couple days. The panel does not find this to be unusual and it certainly does not contradict the evidence that an accident did occur.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of July, 2015