The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for a right ankle injury occurring on November 30, 2016. A file review was held on August 17, 2017 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB on December 22, 2016 for a right ankle injury that occurred on November 30, 2016. The worker reported: "As I was coming into work, I rolled my right ankle on uneven ground and frozen mud. I did not fall down. I rolled my right ankle outwardly. I finished my shift."

In a letter to the WCB dated December 13, 2016, the employer's representative wrote that no accident or incident occurred at work to cause the worker's ankle problems nor was any workplace injury reported. The representative noted that the worker texted the employer on Saturday, December 3, 2016, to advise that he would not be in to work on Monday due to ankle pain. The worker did not advise that his ankle issues were work-related and the employer had no reason to believe they were, especially in light of no incident having been reported at work. The worker did not return to work until Wednesday, December 7, 2016, and produced a note from a chiropractor advising that he had very slight restrictions. The worker continued to work and subsequent queries did not reveal that he had any work accident or incident to cause his ankle issues. The representative said there was absolutely no evidence that a work injury occurred nor did the circumstances of the claim meet the definition of an accident. The employer saw no reason to accept the claim and did not feel there was any loss of earning capacity since the worker had stopped participating in modified duties.

A WCB adjudicator spoke with the worker on December 29, 2016 to discuss his claim. The worker advised that he was walking from the parking lot to the jobsite at 7:00 a.m. on November 30 when the injury occurred. He continued to work on his foot for the remainder of the week but was limping. The worker advised that he reported the accident to his supervisor on the same day and that two co-workers would have seen him limping and knew about the injury. The worker advised that he iced his ankle each day after work, but it was not getting better. He then sought medical treatment at a local hospital facility on December 3, a chiropractor on December 5, a clinic on December 13, and a physiotherapist on December 17.

The claim file contains three Worker/Witness Statements dated December 7, 2016 which were submitted by the employer and signed by the worker, his supervisor and another staff member, respectively.

On January 11, 2017, a WCB adjudicator spoke with a co-worker identified by the worker. The co-worker advised that he had noticed the worker limping and asked him what happened. The worker responded that he had twisted his ankle and mentioned that this was at work. The co-worker advised that he did not actually see the worker twisting his ankle.

On January 16, 2017, the worker advised his adjudicator that he had been walking over gravel at the jobsite on November 28 when he felt a soreness in his right ankle. On November 30, he rolled his ankle again on an uneven surface while walking to the jobsite. He thought he could walk it off and it would be okay, so he continued working. By the end of the day on December 2, his right ankle was really sore and fatigued, so he sought medical attention. The adjudicator advised the worker that his claim was accepted as his co-worker had confirmed that he had hurt his ankle at work.

In a decision letter to the employer dated January 19, 2017, Compensation Services advised that the worker's claim had been accepted as a relationship between the development of the worker's difficulties and an accident arising out of and in the course of employment had been established. On February 9, 2017, the employer's representative appealed the decision to Review Office.

On March 30, 2017, Review Office denied the employer's appeal and found that the worker's claim was acceptable.

Review Office acknowledged the employer's concerns that there was differing information on the claim file as to the date the injury occurred. Review Office referred to the worker's description of the accident on his accident report and felt it was a reasonable representation of reporting with regards to the mechanism of injury as it remained consistent when reported to all medical providers and the employer.

Review Office placed weight on the information provided by the co-worker on January 11, 2017, as well as the information that was outlined in a medical assessment that took place on December 3, 2016. The medical assessment identified a soft tissue injury to the right ankle/foot and noted that the worker had "pain over the base of the 4th and 5th metatarsals." Review Office found this information to be relevant, as the worker described his initial injury as an outward roll of his right ankle. Review Office understood that a mechanism of injury of this nature would have placed greater stress on the metatarsals in question and fit with the worker's accident description.

Review Office found it reasonable and appropriate for the worker to have contacted his manager/supervisor by text on December 3, 2016, as the worker was not working at the employer's location but at a different worksite.

Review Office found that the worker sustained an injury to his right ankle in keeping with subsection 1(1) of The Workers Compensation Act (the "Act"). This was supported by the initial medical assessment done at the emergency room on December 3, 2016, and the criteria needed to determine that this was an accident under the Act had been met.

On April 18, 2017, the employer's representative appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means 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.

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

Employer's Position

The employer was represented by an advocate, who provided a written submission in support of their appeal. The employer's position was that the claim should not have been accepted, as there was inadequate evidence to support that a work accident occurred or that the worker's ankle issues were due to a work-related incident or accident.

The employer's representative noted that there were numerous different accident dates on file, and each person who was involved seemed to have a different alleged date of accident. The worker was also seen by multiple practitioners, in contravening disciplines. It was submitted that the inconsistencies or discrepancies in the evidence were significant and relevant when weighing whether the worker sustained a work-related injury or not.

The representative noted that the co-worker did not come forward in the initial reporting process to confirm that the worker stated he hurt his ankle. It was submitted that in any event, this did not support that an actual workplace accident or incident took place. The employer believed that with the information available and the information provided by the worker, it was impossible to ascertain that a work accident took place. In their view, if an "ankle roll" did occur, it could just as easily have happened away from the workplace.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find that the worker was not injured by accident arising out of and in the course of his employment as provided by subsection 1(1) of the Act. The panel is unable to make that finding.

Based on our review and consideration of the information on file and the submission of the employer, the panel is satisfied that the worker sustained a right ankle injury by accident arising out of and in the course of his employment. In arriving at that conclusion, the panel places weight on the following:

• While there are inconsistencies in the date of accident as reported at various times, the panel notes that the mechanism of injury as identified and described by the worker was consistent throughout, and the worker was persistently diagnosed by different medical practitioners with a right ankle soft tissue injury or sprain.  

• The information on file, which was uncontradicted, showed that the terrain where the worker was working consisted of rough, uneven ground and frozen mud. The panel is satisfied that the jobsite, as described, was the type of workplace where such an injury could occur, and accepts the worker's explanation, when asked about the actual date of injury, that he rolled his ankle more than once over a very short period of time while working at the jobsite.

• In his statement dated December 7, 2016, the worker's supervisor stated that he noticed the worker limping on Wednesday, November 30, 2016 in the morning. The panel notes that this is consistent with one of the days that the worker said he was injured, and in particular, with the date and time of the worker's injury as listed in his accident report.

• The supervisor went on in his statement to say "I asked if he was ok, he said, yes" and it was left at that. While the employer has argued that the worker did not say that his ankle issues were work-related, the panel notes that there is no indication that the supervisor asked the worker where or how he had been hurt.

• The statement from another staff member, also dated December 7, 2016, refers to text messages to and from the worker between December 3 and 6, 2016, where the worker advised that his doctor had told him he had soft tissue damage in his ankle and the worker said he did not want to risk coming to work. Again, there is no indication that the staff member inquired as to how the worker hurt his ankle or whether his injury was work-related.

• The co-worker who the worker had identified confirmed that he noticed the worker limping at work, and that the worker told him he had twisted his ankle at work.

The panel further notes that while the employer's representative suggested that the worker's ankle roll could just as easily have occurred elsewhere, no evidence was provided to support such a finding or suggestion.

Based on the foregoing, there is sufficient reliable and accurate information to establish, on a balance of probabilities, that a workplace accident occurred and the worker was injured as a result of that work-related accident or incident.

In conclusion, the panel finds that the worker was injured by accident arising out of and in the course of his employment as provided by subsection 1(1) of the Act. The panel therefore finds that the claim is acceptable.   

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of October, 2017