The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim for a workplace incident that occurred onNovember 2, 2013. She is appealing the decision made by the WorkersCompensation Board (“WCB”) that she is not entitled to benefits beyond November2, 2013. A hearing was held on August 19, 2015.

Issue

Whether the worker is entitled to benefits beyond November 2, 2013.

Decision

The worker is not entitled to benefits beyond November 2, 2013.

Decision: Unanimous

Background

On November 2, 2013, the worker injured her left ankle when she was leaving the workplace and the back of her heel was struck by a revolving turnstile.

While the worker was going through the full-length turnstile, another co-worker behind her pushed the turnstile hard causing the bottom arms of the turnstile to hit the worker’s left foot, catching it under the bottom opening. The worker’s foot rolled and was dragged. The worker filled out a worker’s accident report with the employer.

Following this incident, the worker returned to the workplace and continued to work. However, she attended her doctor twelve (12) days later to have her ankle examined. The treating doctor noted the worker had localized tenderness and diagnosed her with an ankle sprain. An x-ray was performed which showed no abnormality and there was no recommendation for time loss or modified duties. The worker returned to her doctor on February 14, 2014 with complaints of instability, ankle pain and swelling. The doctor confirmed the worker’s complaints with similar findings and requested the worker attend for an MRI. The MRI dated August 15, 2014, noted a tendon injury.

In an attempt to link the tendon injury with the November 2, 2013 incident, the worker supplied witness statements from family and co-workers which sought to acknowledge ongoing left ankle difficulties.

The WCB reviewed the file documentation; however, they were unable to associate the worker’s left ankle tendon injury with the November 2, 2013 incident. On January 20, 2015, the WCB sent the worker a decision letter stating her recurrence of left ankle problems was not accepted.

On February 20, 2015, the worker’s representative requested reconsideration of this decision. The worker’s representative took the position that the November 2, 2013 workplace incident caused an inversion injury to the worker's left foot. Further, it was submitted that the mechanism of injury fit with the MRI findings to support WCB responsibility for time loss and medical aid benefits.

On March 26, 2015, Review Office determined the worker was not entitled to benefits beyond November 2, 2013 as there was no relationship between the worker's left ankle complaints of February 14, 2014 and the November 2, 2013 incident. Review Office noted there was no medical evidence on which to establish continuity between when the accident occurred and when the worker sought medical attention months later.

On April 2, 2015 the worker's representative appealed the Review Office decision to the Appeal Commission. A hearing was held on August 19, 2015.

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.

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 39(1) of the Act provides that wage loss benefits will be paid “…where an injury to a worker results in a loss of earning capacity …”. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the workers loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) of the Act provides that the WCB “may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident”.

Worker’s Position

The worker was represented by a worker advisor. The worker's position is that the WCB should accept responsibility for her left foot injury as it is directly related to the November 2, 2013 workplace accident.

The worker states that the workplace accident on November 2, 2013 caused an inversion injury to her left foot. She noted that on November 2, 2013 she was leaving work and while turning through a full length turnstile another co-worker behind her pushed the turnstile hard causing the bottom arm of the turnstile to hit her left foot, catching it under the bottom opening. The worker claimed that her foot was rolled and dragged causing pain to the heel inside of her left foot.

The worker's representative noted the MRI of August 15, 2014 confirms the diagnosis of: 1) Suspect remote injury to the anterior talofibular ligament and 2) Peroneal split syndrome. The representative asserted the mechanism of the injury fits with the MRI findings, which supports WCB responsibility for time loss and medical aid benefits.

The representative also noted the first doctor’s report, dated November 14, 2013, confirms the worker’s description of the accident as “rolled ankle while at exit door”. Contrary to the WCB's position that no co-workers were aware of the worker’s left ankle difficulties after February 2, 2014, file information indicates that multiple co-workers and family members confirmed the worker continued to have ongoing difficulties with her left foot since the accident. The treating physician's report dated December 18, 2014 confirms the mechanism of injury caused an inversion type injury.

The representative further noted that the worker's physician has taken her off work as of June 2014, which means the worker has a loss of earning capacity due to her compensable left foot injury, for which wage loss benefits are payable under subsections 4(1) and 39(2) of the Act.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to benefits after November 2, 2013. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity resulting from the injury and required medical assistance due to the injury beyond November 2, 2013. The panel was unable to make this finding.

During the hearing the worker provided a detailed explanation of photographs that were submitted prior to the hearing, of the buildings exit area and turnstile. She paid particular attention to the height of the bottom bar in relation to her footwear and ankle. The panel is unable to find that the worker suffered an inversion sprain injury on the date of the accident. The medical records on file, particularly the MRI, are not consistent with an inversion injury as has been argued by the worker.

The panel carefully and extensively questioned the worker as to her job duties both prior to and subsequent to her November 2, 2013 injury. It was the worker's evidence she was required to inspect product on delivery and throughout numerous points in the plant, during the processing of that product, which involved significant amounts of walking. She explained she wore a pedometer that recorded her steps and averaged a distance of 17 kilometers per day. The panel finds that the worker continued to work regular duties following the alleged incident which included walking long distances and negotiating flights of stairs on a regular basis. Therefore the condition that the worker complained of in February of 2014 cannot be related the compensable injury of November 2, 2013, on a balance of probabilities.

The worker's appeal is therefore denied.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, P. Wiebe

C. Monnin - Presiding Officer

Signed at Winnipeg this 14th day of October, 2015