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 claim for compensation was acceptable. A hearing was held on November 23, 2015 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The Employer's Report of Injury or Occupational Disease dated April 16, 2015 stated:

"Walking towards garbage and doesn't remember anything until helped off the floor. Broke front teeth and cut lip. Reported to supervisor on April 9, 2015 @ 10:55 a.m."

When speaking with a WCB adjudicator on May 4, 2015, the worker stated that he couldn't remember what happened prior to his fall. He was walking towards a garbage can and lost consciousness. He fell to the ground and struck his head on the floor. The worker said he did not recall feeling ill prior to the incident and there were no issues with the environment created by the employer.

In a decision dated May 4, 2015, the worker was advised that his claim for compensation was denied as there was no evidence that his accident arose out of his employment. The adjudicator stated: "When a loss of consciousness cannot be attributed to the environment created or controlled by the Employer, any resulting difficulties will be deemed non-compensable. As such, your claim has been disallowed. Therefore no responsibility will be accepted for your claim including medical expenses or time loss from work." On May 27, 2015, the worker's union representative appealed the adjudicator's decision to Review Office.

On July 13, 2015, Review Office considered the worker's appeal along with a submission made by the employer's representative dated June 26, 2015. Review Office overturned the adjudicator's decision and found that the worker's claim for compensation was acceptable.

In support of its finding, Review Office noted that the worker was at work and working his expected duties when he was injured. There was insufficient evidence to support the worker's accident occurred due to any other reason or medical condition which would remove him from employment so that his injuries would not be considered "arising out of" his job duties and subject to a "hazard" of the premises. As such, an accident was presumed to have occurred on April 9, 2015; the contrary had not been proven on a balance of probabilities.

On July 15, 2015, the employer disagreed with the above decision and an appeal was filed with the Appeal Commission.

Following the hearing held on November 23, 2015, the panel met to discuss the case and requested additional information prior to discussing the employer's appeal. Specifically, the appeal panel requested a report from the paramedics who assisted the worker at the work site on April 9, 2015 along with a copy of the hospital emergency report. The panel also requested that arrangements be made for a work site visit to see the location where the worker fell on April 9, 2015 and to speak with three witnesses with respect to the incident. The work site visit later took place on January 25, 2016.

On March 15, 2016, the interested parties were provided with a copy of the medical reports that were received by the appeal panel and were asked to provide comment.

Reasons

Applicable Legislation and Policy

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.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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 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;

Review Office in its decision applied the presumption provision set out in subsection 4(5) which states:

Presumption

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides guidance in determining whether a decision is considered to have "arisen out of employment." It provides that:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment - that is, if it is caused by some hazard which results from the nature, conditions or obligations in the course of employment.

Employer Position

The employer was represented by its compensation coordinator.

The employer representative reviewed the mechanism of injury. He noted that as there were no witnesses to the incident, and the worker could not remember what happened, there was an attempt to try to determine the origin of the trip and fall theory. He said that based on an email dated April 9, 2015, the tripping theory was initiated by a co-worker. The employer representative spoke with the co-worker and concluded that it was assumed the worker must have tripped, given that there were no witnesses.

The employer representative referred to the Employer Report which was submitted on April 16th. He said it reflects the results of the accident investigation versus the initial assumption. He noted that an investigation was conducted to try and determine the cause of the worker's injuries. The outcome of that investigation was that the incident was more of a medical issue than an accident. It does not appear that he tripped or was pushed.

The employer representative suggested that the fall may be due to some underlying medical issues. He noted the injuries that the worker sustained: two broken front teeth, split lip, large bump on his right cheek and his right under-eye area bruised, and no injuries to his hands or arms like he was bracing for a fall.

He also noted that the worker said that he remembers walking from his toolbox to put his empty drink container in the garbage, and the next thing he remembers is his co-workers helping him. He said this leads to the conclusion that the worker was unconscious before hitting the cement floor.

The employer representative also referenced a conversation with the WCB on May 4, 2015, the worker indicated that he was walking towards a garbage can and lost consciousness. He submitted that this is consistent with the history provided in the workplace safety incident investigation form.

The employer representative submitted that:

The question that begs to be asked is why [the worker] would not recall having tripped, when it is abundantly clear that he was able to recall walking to dispose of his empty drink container mere seconds prior? The only feasible explanation, in our opinion, is a temporary loss of consciousness during which he would understandably have no recollection. The most probable cause of such a loss of consciousness, and contrary to the review officer’s conclusion that there was no loss of consciousness, would be a fainting spell, or as it is known medically, syncope.

The employer representative submitted that:

While the worker was undoubtedly in the course of his employment at the time of the injury, there has been no identifiable hazard that would suggest that his loss of consciousness and resultant injuries arose out of the course of employment. On that basis, we respectfully submit that subsection 1(1) of The Workers Compensation Act has not been satisfied.

In response to a question about the presumption the employer representative submitted that it did not apply in this case given the evidence surrounding the fall.

Worker Position

The worker was represented by a union representative who explained the worker's position. The worker answered questions from the panel.

The worker's representative submitted that there is nothing being provided by the employer's representative by way of medical evidence to show that the worker fainted and did not trip and fall. He noted that the worker is a healthy, strong young man with no past medical history that might even suggest that he might have had a chance of fainting due to his ill health. He said that:

Just because [the worker] says he cannot recall how he fell does not mean he lost consciousness. He will tell you that he was finishing his last bit of his drink and was walking towards the garbage can with his head tilted back, and not looking in the direction of his path.

The worker's representative provided photos of the worksite where the worker was injured. He acknowledged that he had taken the photos of the worksite after work and that the worker was not present at the time.

The worker, referring to the photos, explained where he was working, where he was walking to and where he fell.

The worker's representative advised that when his co-workers got to him seconds after he had fallen, they found him flat on the floor with his arms in the push-up position. An ambulance was called, and they came and they took his blood pressure and glucose level, and they seemed normal. But they said he should go to the hospital for stitches, and have his teeth checked. The attending physician did an EKG, blood work and chest x-rays. They ruled out any cause of loss of consciousness.

The worker's representative noted that the worker's attending physician stated in his note of May 7, 2015, clearly without a doubt that the worker tripped and fell at work, and that his fall was not related to a seizure or epilepsy.

The worker's representative submitted that when a person faints, their knees give out, their legs give out first, so the person falls flat. He said that 99 percent of the time, a person falls backwards, and then lands on his back hitting his head.

He suggested that in this case:

[The worker] as he’s walking to the garbage can... he catches the edge of that plate on the floor to where he landed roughly, it would be a perfect landing as somebody falling flat, just bang, somebody tripping and just falling flat. Now, because he was walking with his head up with a cup in his hand, and he’s so into his drinking, his drink at that time, he didn’t realize what happened. And it takes only a second or two for a person to fall. And that is the time that he says that he, when he talked to the adjudicator on the phone four weeks after it happened, he said he didn’t know what happened. He didn’t say, I lost consciousness. He said, I don’t know what happened.

In answer to questions from the panel, the worker described his recollection of actions before the fall, getting up from the fall and receiving medical treatment. He advised that his co-workers helped him up and he then walked unassisted to the washroom and the first aid room. When asked by the supervisor and others about what happened, he said that he could not remember.

The worker confirmed that there was a metal plate near where he fell which is about one quarter to one half inch above the floor level. In response to a specific question from the panel as to whether he could remember anything unusual happening prior to the fall the worker responded "No". When asked specifically whether he remembered flailing, or losing his balance or anything of that nature, he responded "No".

With respect to whether he fainted, the worker advised that his physician told him that typically there is a triggering factor and with a faint, you actually remember, it shouldn’t happen instantly, it should be a slower process where your legs should get weak and you crumble. The physician also said that to go headfirst into the floor is unusual.

Analysis

To assist with the adjudication of this appeal, the panel arranged a worksite visit with the parties and also obtained information from the emergency responders and the hospital emergency ward where the worker was taken after the fall. When the information was received it was circulated to the parties for comment. The worker's representative provided a further submission on March 23, 2016, and a representative of the employer provided a further submission on March 24, 2016.

The employer is appealing the WCB decision that the workers' claim for a workplace injury is acceptable.

For the employer's appeal to be accepted, the panel must find that the worker's injury did not result from an accident arising out of, and in the course of his employment. The panel was able to make this finding for the reasons that follow. More specifically, the panel finds that while the worker's injury occurred in the course of employment, the evidence, on a balance of probabilities, establishes that the injury did not arise out of the worker's employment.

The panel notes that the worker's incident occurred in the workplace during work hours while engaged in an activity incidental to his employment. The panel therefore finds that the worker was in the course of his employment at the time of his injury.

The remaining issue is whether the worker's incident, the fall and resulting injury, arose out of the worker's employment. The description provided at the emergency department of the hospital is syncope. All tests conducted were normal. The worker's family physician opined that he did not have a seizure or epilepsy. The panel notes the evidence

provided by the emergency responders that "PT had been unwell prior to event with flu like symptoms" and the Triage note that "Unwell for few days. Cough with phlegm. Syncope at work. Dizzy while walking and collapsed." The panel finds, on a balance of probabilities, that the worker's medical condition as reported above was the likely cause of the worker's injury.

It had been suggested that the worker tripped over a metal plate on the floor, resulting in the worker's injury. The panel finds this to be speculative and not based on the available evidence.

The worker's evidence throughout the file and at the hearing is that he was not able to remember the fall and has not provided an explanation. The panel further notes that the medical evidence does not disclose a concussion injury that might explain the worker's lack of memory of a fall.

The panel attended the worksite and viewed the area where the injury occurred. The panel was unable to identify or confirm any environmental hazard of the workplace or other cause for the worker's fall. The evidence is that the worker was not involved in any unusual or stressful activity at the time of the fall. There is no evidence that a workplace duty or an environmental air quality issue caused the worker to faint or fall. In this regard, the panel notes the worker's conversation with a WCB adjudicator dated May 4, 2015 when he indicated that he had no concerns regarding an environmental cause. The panel is not able to relate the worker's fall to his employment duties.

The panel concludes, on a balance of probabilities, that the fall did not arise out of the worker's employment and that the claim is not acceptable.

The employer's appeal is approved.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of April, 2016