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 is acceptable. A hearing was held on April 9, 2018 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker, a production operator, reported injuring his right ankle on March 17, 2014. On the worker's accident report, completed April 3, 2014, the worker described the incident as:

Going down stairs by punch clock I stepped down and felt a sharp pain on my right ankle. Don't know if I slipped or stepped on the ankle.

The worker advised the WCB on April 11, 2014, that his ankle was sore all day after the workplace accident but he completed his shift. He noted that some of his coworkers may have noticed that he was limping on that date as well. The worker also advised the WCB that he delayed going to see the doctor until the next day as he thought it would go away.

On March 18, 2014, the worker saw his doctor for an initial examination and was diagnosed with a right ankle sprain. Tenderness over the base of the worker's fifth metatarsal was noted and it was recommended that the worker stay off work that day. An x-ray taken on the same date did not note any abnormalities of the worker's right ankle or right foot.

The worker returned to work to his regular duties on March 24, 2014. The WCB accepted the worker's claim on April 14, 2014.

After continuing to experience pain in his right foot, the worker saw his doctor on May 27, 2014 for a follow-up appointment. At this appointment, the worker's doctor diagnosed the worker with a broken right third metatarsal and referred the worker for an x-ray and a bone scan. The x-ray conducted on May 27, 2014 found "…minor sclerosis and periosteal reaction now present at the neck of the 3rd metatarsal which may represent a healing fracture." The bone scan conducted on June 10, 2014 noted "…the findings are most suggestive of post traumatic bony remodeling involving the distal right second - fourth metatarsal heads and anterior aspect of the right cuboid bone."

The worker was seen at a follow-up appointment with his family doctor on June 19, 2014. Given the continuing symptoms of the worker and the results of the worker's x-ray and bone scan tests, the worker's family doctor recommended the worker be off work until June 28, 2014. The worker attended a further follow-up appointment with his family doctor on July 3, 2014 and the doctor advised that the worker could return to his full duties effective July 7, 2014. The worker was advised however, that should he have pain and/or swelling as a result of standing or walking while at work, he was to return for a further assessment.

On July 29, 2014, the worker's physiotherapist recommended that the worker not weight bear on his right foot. It was also noted that "Continued use prolonged standing/walking delaying healing." The worker's physiotherapist recommended that the worker only work eight hours a day or 40 hours a week and remain off his feet as much as possible. It was also recommended that the worker be referred to an orthopedic surgeon.

The worker was seen by an orthopedic surgeon on August 1, 2014 who recommended that the worker stay off work for two weeks as the worker had persistent symptoms of pain and swelling. At his follow-up appointment with the orthopedic surgeon on August 14, 2014, it was recommended that the worker remain off work for another week. On August 22, 2014, the orthopedic surgeon provided the recommendation that the worker could return to work for half days using a walking boot as needed. The worker returned to work for half days starting on August 25, 2014 and returned to full time duties on September 29, 2014.

On October 13, 2016, the employer's representative requested reconsideration of the WCB's April 14, 2014 decision to accept the worker's claim to Review Office. The employer disagreed with acceptance of the worker's claim based on their review of the available information.

Review Office upheld the WCB's decision in their decision of November 15, 2016. Review Office found that the worker sought medical attention within a reasonable amount of time and was treated for an injury that was consistent with his description of the workplace accident. The worker's initial doctor's report of March 17, 2014 noted that there was tenderness over the base of the worker's fifth metatarsal, which confirmed the area that the worker would have sustained an injury. Review Office also noted that they placed more weight on the evidence provided by the worker's supervisor who noted that the worker was limping on the date of the workplace accident.

The employer's representative filed an application with the Appeal Commission on December 6, 2017. An oral hearing was held April 9, 2018.

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 WCB's 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 a personal injury by accident arising 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, (the "Policy") addresses the issue of whether the accident arose out of and in the course of employment.

The worker was injured on March 17, 2014. The employer is appealing the decision that the claim is acceptable.

Employer's Position

The employer was represented by an employer advocate. The employer's representative reviewed the written submission, which was dated March 5, 2018, and answered questions from the panel.

The employer representative noted that descriptions of the accident varied, specifically that:

• the worker indicated that on March 17, 2014, while coming down some stairs, he came down on his right foot and felt pain in his right ankle. He indicated he was not sure if he slipped on the stairs. 

• the worker also reported that he slipped on wet floor going to work at the backdoor stairs and when he slipped he felt sudden pain. 

• on March 28, 2014, the worker confirmed with a supervisor that he was not limping because he was not feeling pain. He also stated that he did not slip, but stepped by the edge of his foot and felt a sharp pain and his foot was not painful until he was home.

She submitted that wage loss benefits should not have been allowed because the employer had suitable modified duties that fit within the worker's restrictions.

The employer representative advised that the employer has CCTV video evidence which confirms that the worker was not limping. She noted that the camera catches the bottom of the stairs in the workplace. She said that on April 22, 2014, a supervisor reviewed the video with the worker. The video showed that the worker was standing and seems to be talking to someone behind him above the stairs. He then walked out the door normally, and about three minutes later he walked back through the same door. Both times that he was seen on the video there was no limping, nor any sign of strain on the ankle or leg.

The representative submitted that:

when the supervisor reviewed the video clip in person with him, it clearly exhibits that the worker was not limping. He changed his statement, saying that he was not feeling any pain until he got home.

In answer to a question, the employer representative advised that the video was not available for the panel to review, as it no longer exists.

The employer representative advised that the employer believes that the worker did not sustain a workplace injury arising out of or in the course of employment and therefore, the employer is requesting the worker's entitlement to healthcare and wage loss benefits be overturned.

The employer representative submitted that the diagnosis of ankle strain is not compatible with the worker simply walking down the stairs and coming down on his right foot.

The employer representative also noted that the worker had ongoing difficulties with his right ankle, which required multiple tests. She said that the first x-ray reported on March 19, 2014 indicated that no abnormality was observed. The second x-ray from March 28, 2014 showed mild osteopenia. She submitted that the findings suggest that the worker has a non-compensable condition in his right foot and this condition is not related to him walking down the stairs and feeling pain at work. She said the tests show the worker has a degenerative condition in his ankle and foot.

The employer representative also submitted that at the time of the reported incident, the worker was heading outside "for a smoke break".

In reply to a question about the evidence provided by a supervisor [M.M.], the employer representative said that, to her knowledge, there was not a supervisor named [M.M.] employed at the workplace. She said there was a supervisor with the initials M.P. and that he is the supervisor who viewed the video and concluded that it did not show the worker was limping.

With regards to a bone scan which was taken on June 10, which showed that in the area that the worker reported pain, there is a healing fracture to the second to fourth metatarsal heads. The employer representative stated that:

Part of my understanding is that according to the bone scan, he had a previous injury to that same area, and he has severe osteoarthritis. So I'm just thinking that this is related to the degenerative condition that he has.

Regarding later evidence of a fractured toe, the employer representative replied that the employer's position is there's no specific incident or injury that could have caused even a fracture, because the worker did not say he had a fall or slip or hit something. She submitted that there is no evidence that the injury arose out of and in the course of employment.

Worker's Position

The worker did not participate in the appeal.

Analysis

The employer is appealing the WCB decision that the worker's claim for injury was accepted by the WCB. The employer disagrees with the WCB position that the worker sustained an injury by accident arising out of and in the course of his employment. For the employer's appeal to be approved, the panel must find that the worker's injury did not arise out of and in the course of his employment. The panel was not able to make this decision.

The panel finds on a balance of probabilities that the worker sustained an injury by accident arising out and in the course of his employment on March 17, 2014, and accordingly that the worker's claim is acceptable. In making our decision, the panel attaches weight to the following:

• the worker advised his employer of his injury on the day of the accident

• the worker was examined by his family physician on March 18, 2014, the day after the accident. The Doctor First Report indicates that the worker complained of pain with weight bearing and notes findings of tenderness over the base of the 5th metatarsal. The physician provided an initial diagnosis of right ankle sprain. The report indicates "slipped on wet stairs".

• the worker advised the treating physiotherapist that he was injured when "stepping down stairs & sharp pain to foot."

There was a discussion at the hearing about whether the worker was limping at work after the incident. The employer representative submitted that the worker was not limping and that this supports a finding that the worker was not injured at work. She noted that one of the worker's supervisors viewed a video taken of the areas near the punch clock and the stairs, and that the supervisor reported that that the video did not show the worker limping. The supervisor also reported that the worker said he was not limping at work on that day. The employer's representative advised that the video did not show any evidence of a slip or tumble as the worker walked away from the stairs.

The panel notes that this evidence contradicts other evidence on file. The panel notes that the worker told the WCB adjudicator that he "was not limping after coming down the stairs" but that he was "pretty sure he was limping at work on 17/03/14". As well the worker's supervisor [M.M.] advised the WCB adjudicator that the worker was limping quite badly on the 17/03/2014.

The video was not provided to the WCB and is not available for the panel to review. As well, the panel notes that the worker advised the case manager that the video did not go back to where he was coming down stairs.

The panel finds, on a balance of probabilities, that it is likely that the worker was limping and that the worker did have an accident at work resulting in an injury on March 17, 2014. The panel relies on the report of the treating physician, the evidence of the supervisor [M.M.] and the worker's evidence that an accident occurred.

At the hearing, the employer representative advised that there is not a supervisor with the initials M.M. The panel is satisfied that the WCB case manager spoke with a person at the employer's premises who confirmed that the worker was limping on the day of the accident. It is possible that the initials are incorrect however, the panel accepts the evidence provided by the supervisor.

The panel notes the argument advanced by the employer that the worker had not started his shift and was going for a smoke. The panel finds that there is no evidence on the file to support that that worker was going for "a smoke", except for a comment in a written submission by an employer advocate. In any case, the panel accepts the worker's evidence that he was going down the stairs to punch the clock. The panel finds that the worker was on the employer's premises and performing an employment duty, punching the clock, and accordingly was in the course of his employment at the time of the injury.

The panel finds, on a balance of probabilities, the worker's claim is acceptable. Accordingly, the panel finds that the employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of May, 2018