Decision #57/16 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for compensation. A hearing was held on March 16, 2016 to consider the employer's appeal.
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 left knee injury that occurred at work on June 12, 2014. The worker reported that he was kneeling down to move product and was kneeling on his right knee with his left knee up. He turned to his right to grab the product and moved awkwardly. He then felt his left knee pop. The worker said he reported the accident to the merchandiser supervisor on the day of the accident.
On June 20, 2014, the employer's representative outlined the following concerns regarding the worker's claim:
the worker indicated that he had a sports related knee injury
the attached medical note showed that the worker was unable to work from June 12 to June 19 due to a personal illness
the worker did not report a work related injury until June 17, after his sick days had been used up
On June 20, 2014, a WCB adjudicator called the worker by phone to discuss his claim. The worker described the accident stating that he was kneeling down on his right knee and his left leg was bent in front of him. He turned to the right at the waist to get product from the floor, went to reach to pull forward, and must have moved awkwardly. He was leaning over on the right side and his left knee popped. He felt pain below his knee cap - his left knee cap was dislocated. He did not believe he twisted his left knee, but he twisted at the waist. There were no witnesses. The worker said he worked the remainder of his shift (4 more hours) and his left knee became more sore and swollen. He attended a doctor on June 12, 2014. The worker said he reported the accident to his supervisor on June 12, 2014.
The worker reported that he had prior problems with his left knee when he was 16 years old. He dislocated his left knee while playing hockey. On June, 7, 2014, he was playing football and was pushed. His left knee felt funny and he went to the hospital on June 8, 2014. He was told he had a sprain and was advised to stay off the knee for a few days. He missed two days of work on June 8 and 10, 2014. He returned to his regular duties on June 11, 2014. Before he started work on June 12, his left knee was a little sore but he was able to move it around. He experienced an increase in pain on June 12 after moving product.
On July 11, 2014, the supervisor identified by the worker confirmed that she was aware of the accident on the day it happened.
On July 17, 2014, the WCB advised the worker that his claim for a right knee injury sustained on June 12, 2014 was accepted and that wage loss benefits would be issued. On May 11, 2015, the employer appealed the decision to Review Office, stating:
Worker indicated he had a sports related knee injury and the medical note stated that the workers time off is due to a personal illness. Furthermore, the worker did not report a work related injury until June 17, after the worker's sick days had all been used.
In a further submission to Review Office dated July 2, 2015, the employer's representative stated:
There are many references to the worker having non-compensable knee injuries and the medical information strongly supports the injury is sports related. The information supports the worker had a sport injury on June 2, 2014 to the knee. He sought medical attention on June 12, 2014 then was off work due to personal reasons. So he was off work due to a non-compensable injury. The reporting of a work related accident was not done until June 17, 2014 after he had used up his sick days.
On July 14, 2015, Review Office confirmed the adjudicator's decision that the worker's claim was acceptable. On September 1, 2015, the employer's representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
A hearing was scheduled to take place at the Appeal Commission by teleconference on February 3, 2016 but was adjourned. The hearing was re-scheduled and took place on March 16, 2016.
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.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
In this appeal, the employer is appealing the WCB decision that the worker's claim is acceptable.
Employer's Position
The employer was represented by an employer consultant. The employer called two witnesses to provide evidence. Regarding the merits of the claim, the employer's representative submitted that the worker had injured his knee 5 days before the work incident in a sports accident and that any injury was due to the sports accident.
The employer representative advised that it was their understanding that on June 12, 2014 the worker reported pain in his knee while he was "simply just standing up." The representative submitted that "So our argument is that the injury and the acquired benefits are related to a non-compensable injury, not to a compensable injury of June 12, 2014."
The employer called the merchandiser supervisor as a witness. The supervisor advised that the worker reported the incident on the day of the accident. She said the worker told her that he had "tweaked his knee, bending to merchandise 12-packs on the bottom shelf in [a store], in the morning." She said the worker telephoned her to advise her of the injury but that she did not see him on that day. Regarding completion of the employer's injury form, she advised that she received assistance from her colleague, the supervisor in Edmonton. She could not recall the time lines for the various calls.
The employer called the merchandiser supervisor from Edmonton as a witness. He provided his evidence by telephone. He confirmed that the supervisor in Winnipeg called for assistance in completing the employer's injury form. He also confirmed that the calls from the merchandiser supervisor were on June 12, 2014.
The employer representative expressed concern that the initial medical report, which was completed by a physician at a medical clinic, says the worker is off for personal illness. The form did not indicate a work-related injury.
Worker's Position
The worker was self-represented and participated by telephone. He explained the incident and answered questions from the panel.
He described the workplace accident as:
I… knelt down, like, almost trying to propose, like, that’s the best way to
describe it, on my right knee, and facing the pallet jack that was in front of me, grabbing what was in front of me, and twisting to my right, while my knee, the left knee was up. And when I turned, I just felt it pop, like, it locked, and then when I moved, and the knee just popped and it gave me that shooting pain again. I got up. I tried to walk it off, and the more I worked, the more it kind of got aggravated and then it was bothering me. And then I phoned [supervisor] to let her know…
The worker also confirmed he had a sports injury on June 7, 5 days before the workplace accident. He advised that:
…a guy that was twice my size pushed me into another guy. As I went into him, my left knee buckled in and he fell on top of me, causing my knee to go in, and then I felt that same pain, that pop, as I did while I was working.
The worker explained that his knee popped out of its socket, and went back into the socket. The worker advised that he sought treatment at a local clinic on the day of the injury and then saw a sports medicine specialist the next day. He took 2 days off but returned to work on June 11 and was able to perform his regular duties. The worker confirmed that he has a knee brace and was wearing it on the day of the workplace accident.
Analysis
The employer is appealing the WCB decision that the worker's claim for a workplace injury occurring on June 12, 2014 is acceptable. For the employer's appeal to be approved, the panel must find that the worker did not sustain an injury by accident arising out of and in the course of his employment on June 12, 2014. The panel was not able to make this finding.
The panel carefully considered the evidence on the worker's claim file, the evidence provided at the hearing and the arguments of the parties. For the reasons that follow, the panel finds that the worker sustained an injury by accident arising out of and in the course of his employment on June 12, 2014.
The panel notes and relies upon the following in reaching this decision:
the worker was able to work a full shift on June 11, the day before the injury.
the worker reported the incident to the employer on the day that it occurred.
the worker's supervisor confirmed receiving a call from the worker on the day of the injury.
the accident, as described by the worker, was a discrete event which occurred when he knelt while stocking a shelf with product.
the June 13, 2014 report of a sports medicine specialist who examined the worker and reported that the worker had a "Valgus stress injury 2 weeks ago at football. Yesterday pain again when was kneeling at work. Previous patella dislocation."
the opinions of the WCB medical advisors that the diagnosis of a left patellar dislocation is consistent with the mechanism of injury of the workplace injury.
Although the worker had a pre-existing knee condition, the panel finds that the injury on June 12 was a discrete and separate injury and that the claim is acceptable.
The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of April, 2016