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's right ankle injury was related to the January 2, 2014workplace accident.  A hearing washeld on June 23, 2015 to consider the employer's appeal.

Issue

Whether or not responsibility should be accepted for theworker's right ankle injury in relation to the January 2, 2014 workplaceaccident.

Decision

That responsibility should be accepted for the worker'sright ankle injury in relation to the January 2, 2014 workplace accident.

Decision: Unanimous

Background

On January 2, 2014, the worker felt his left knee pop when he stepped on a "chunk" in a puddle of water. The worker continued to work following the incident as he thought his knee condition would resolve on its own. In February 2015, the worker sought medical attention and was diagnosed with a knee sprain. File records also showed that the worker's supervisor was aware of the worker's ongoing difficulties from the time of the initial accident.

On May 18, 2014, the worker was putting on his right shoe at home and was standing on his left leg when his knee gave out. He tried to catch his weight with his right foot. His right foot twisted and snapped. The secondary accident to the worker's right ankle was accepted by a WCB adjudicator on June 12, 2014 as being predominantly attributed to the compensable left knee injury of January 2, 2014.

On August 15, 2014, the accident employer appealed the June 12, 2014 decision to Review Office. The employer referred to file evidence to support that the worker's knee injury of January 2, 2014 was of low severity and that the WCB did not recognize the need to accept the

knee injury as a compensable claim until the occurrence of the right ankle injury. The employer concluded that the worker's ankle injury was not directly related to the knee injury that occurred four a half months prior to May 18, 2014.

On October 7, 2014, Review Office determined that the evidence supported that the worker's left knee injury was the predominant cause of his subsequent right ankle injury. In making its decision, Review Office referred to file information to support that the worker's left knee was unstable following the January 2 workplace accident. It felt that the May 18 mechanism of injury described by the worker was in keeping with the worker's left knee instability. Based on the weight of evidence, Review Office found that the worker's right ankle injury met the criteria outlined in WCB policy that "...a further injury occurring subsequent to a compensable injury is compensable: (i) where the cause of the further injury is predominantly attributable to the compensable injury..."

On December 9, 2014, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 1(1) of the Act defines “accident” to mean “a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.”

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

Employer’s Position

Both parties participated in the hearing by teleconference.

The employer was represented by its WCB Administrator, its Supervisor of Safety and Health and its Manager of Human Resources, Safety Health and Environment.

The employer agreed the WCB had properly accepted responsibility for the worker’s left knee injury as a result of an accident at work on January 2, 2014. It disagreed, however, with the WCB’s decision to accept responsibility for the right ankle injury that occurred on May 18, 2014 when the worker’s left knee “gave out” at home while he was attempting to put on his right shoe.

The employer advanced two primary grounds as to why responsibility should not have been accepted for the May 18, 2014 injury:

(i) The ankle injury of May 18, 2014 was not predominantly attributable to the knee injury of January 2, 2014, as “the extended time period between the two injuries and the low severity of the knee injury, eliminate the possibility that the knee was the cause of the ankle injury.”

(ii) The employer should not have to bear the cost of accidents that happen outside the workplace. From the employer’s perspective, there is no way for an employer to validate actions that are reported to have taken place outside of the workplace.

The employer also contended the worker’s reports of the ankle injury varied, “and as this is the only tangible connection between the knee injury and ankle incident, [the employer] cannot be held responsible for the ankle injury or any similar un-substantiated event in which his [left] knee caused him to lose control.”

Worker’s Position

The worker was represented by both his union’s President and its WCB Liaison Officer.

They noted the worker’s left knee injury of January 2, 2014 was accepted by the WCB as compensable. While the worker did not suffer a loss of earning capacity as a result of that injury, he did experience continued instability and pain in that knee. It was the direct cause of the accident of May 18, 2014. The worker’s left knee remained sore six weeks after the accident, and on February 29, 2014, the worker commenced physiotherapy. The worker also sought medical attention. The worker’s problems with his left knee are addressed in the initial physiotherapy report of February 29, 2014.

The worker advised the panel the sensation in his left knee was similar to the sensation a person would have if he sprained his knee. He stated that if he attempted to steady his weight or put pressure on his left leg, the knee would buckle. It felt “rubbery” right up until the accident of May 18, 2014.

The employer’s workplace “tracking system” recorded that the worker was functioning without restrictions during the period between the first accident on January 2, 2014 and the second accident on May 18, 2014. The worker stated this was an inaccurate characterization of his condition, as his foreman was aware of the difficulties that he was having, and put him on light duties for six weeks following the January 2nd accident. By the end of that six weeks, the knee continued to be very sore and continued to “give out.” Consequently, the worker, who was an electrician, was permitted to focus on trouble-shooting rather than heavier construction-related activities. The employer representatives who were present during this teleconference hearing stated that they had not known of those facts prior to the hearing.

The worker stated that the May 18, 2014 secondary accident occurred when he was putting on his shoes immediately prior to leaving his home. He was leaning against the wall by the back door, with his weight on his left foot. His right knee was bent at 90 degrees and in front of him. His right shoe was partially on his right foot when his left knee gave out. He fell forwards and in doing so, reached out in an attempt to break his fall. The worker stated that any suggestion that he had been putting on his pants at the time was simply incorrect. He stated that he had since spoken to the surgeon who had erroneously made a note to that effect, and that the surgeon told him that the “mistake” wasn’t important.

The accident occurred at approximately one o'clock in the morning as the worker was preparing to leave his house in order to shut off a water tap in his back yard. The worker’s wife immediately summoned two neighbors, who transported the worker via truck to a hospital some thirty miles away. It was determined that the worker had suffered a right ankle fracture. He was ultimately transferred to a Winnipeg hospital where he underwent ankle surgery on May 20, 2014. The injury was accepted as a “right distal fibula fracture.”

An opinion provided by a WCB medical advisor on July 17, 2014 stated that the current left knee diagnosis “appears to be medial meniscus tear, possible partial ACL rupture.” The reported mechanism of injury of January 2, 2014 and the ongoing findings were felt to be consistent with that condition.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker’s right ankle injury in relation to the January 2, 2014 workplace accident.

In order for the employer’s appeal to be successful, the panel must find that the worker’s accident of January 2, 2014 did not cause or contribute to the worker’s right ankle injury of May 18, 2014. On a balance of probabilities, we are unable to make that finding.

In the panel’s opinion, the worker’s right ankle injury of May 18, 2014 was attributable to the workplace accident of January 2, 2014. The fact the May 18, 2014 accident occurred outside of the workplace does not determine if it is compensable.

This matter falls to be determined on the basis of the principles set forth in the Policy.

The Policy applies to “a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.”

The policy establishes the principles where a further injury is compensable. It provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Administrative Guidelines that apply to the Policy, as distinct from the Act, regulations and policies of the Board of Directors, are not binding on the panel. Nevertheless, they can be helpful in understanding the approach the WCB has adopted in administering the policy.

The Administrative Guidelines that apply to this policy provide as follows:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g., unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.

2. The subsequent injury arises out of a situation over which the WCB exercises direct control. For example, the subsequent injury occurs while the worker is participating in a WCB sponsored activity or service (e.g., a work assessment or on-the-job training); or, the subsequent injury occurs when the worker is travelling on transportation arranged and paid for by the WCB (e.g., to attend the WCB offices or a medical appointment arranged by the WCB).

3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB). For example, the worker is injured while being examined or treated (e.g., falls off the examining table or suffers complications from surgery). The subsequent injury would not be compensable if the injury resulted from a hazard of the healthcare providers premises that is not connected to the actual treatment (e.g., the worker slips on ice on the healthcare providers steps or a chair collapses in the healthcare providers offices).

The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury (e.g., a worker with a shoulder injury trips and falls). If the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.

The panel is of the view the right ankle injury of May 18, 2014 is compensable under the policy, as the cause of that injury is “predominantly attributable to the compensable injury” of January 2, 2014. It was the failure of the worker's injured left knee to support his weight that led to his fall and consequential injury to his right ankle. The panel notes that the worker's report of instability in his left knee are consistent with the accepted diagnosis of a medial meniscus tear and possible partial ACL tear.

The employer’s appeal is therefore dismissed.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 5th day of August, 2015