Decision #31/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on February 26, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker reported on May 9, 2018 that he injured his right ankle in a workplace incident he described as "I was moving a couch when I twisted my ankle." The worker advised that he reported the incident to his employer on February 26, 2018 but delayed in reporting the incident to the WCB as he didn't think his injury was serious.
On February 26, 2018, the worker was seen at a walk-in clinic. He reported that he injured his right foot thirteen days before but wasn't sure of the injury. The physician noted mild swelling to the worker's right foot and diagnosed the worker with "foot pain (soft tissue)".
The worker was seen for a follow-up appointment at the clinic on May 1, 2018. He advised the physician that he was experiencing ongoing pain in his right foot. The physician arranged for the worker to have an x-ray, which was conducted on the same day. The x-ray of the worker's right ankle did not demonstrate any evidence of a joint effusion, fracture or dislocation. At a further follow-up appointment on May 8, 2018, the worker was referred to a sports medicine specialist and it was recommended he be off work until May 30, 2018.
At an initial appointment with a sports medicine specialist on May 9, 2018, the worker reported that he twisted his ankle while at work on February 13, 2018 and it was recommended that he should do light duties at work but as there were no light duties available, he continued his regular duties. The worker further advised that he was seen by his physician on May 1, 2018 as his ankle was still bothering him. The sports medicine specialist diagnosed the worker with an ankle sprain and referred him for physiotherapy and an x-ray. The x-ray was conducted on May 9, 2018 and noted "No acute or healing fracture is seen."
On May 29, 2018, the worker attended for a follow-up appointment with his physician where it was noted that he was continuing to experience pain in his right ankle that was not improving. The physician recommended that the worker remain off work.
At his initial physiotherapy assessment, the worker reported pain in his right ankle with problems walking, doing stairs and heavy lifting. The physiotherapist diagnosed the worker with a grade two inversion ankle sprain and recommended the worker be off work for two to three weeks.
The WCB advised the worker on June 20, 2018 that his claim was not acceptable. The WCB noted that the delay in reporting the workplace accident and seeking medical treatment meant that a relationship between the worker's diagnosis and a workplace accident could not be established.
On July 16, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker submitted a letter from his employer in support of his request. His employer advised that the workplace accident occurred in late February, 2018 and that the worker had reported the incident to them but felt the injury was minor and he could continue to work. The employer further advised that they accommodated the worker by putting him on lighter duties. However, as his injury was not getting better and he sought medical treatment, it became evident that the injury was worse than first thought. As a result, the workplace incident was then reported by the employer to the WCB.
Review Office determined on August 14, 2018 that the worker's claim was not acceptable. Review Office found that the worker delayed in reporting his difficulties to both the employer and the WCB. The employer's letter in support of the worker's appeal noted that the worker advised the employer in "late February" of his injury when the incident date was reported to be February 13, 2018 and the worker advised his employer thirteen days later. Review Office noted that the employer delayed in reporting the accident to the WCB until May 9, 2018. It was further noted that the worker also delayed in seeking medical treatment. Given the delays in reporting, Review Office found that it was unable to establish that the worker's right ankle difficulties were related to his job duties performed on February 13, 2018.
The worker filed an appeal with the Appeal Commission on August 29, 2018. An oral hearing was arranged.
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.
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.
"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,
(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.
The worker made a submission to, and answered the questions of, the panel. He was very forthright and provided details of the incident and the reasons for the delay in reporting to the WCB. He confirmed that the initial injury occurred while moving furniture at work but that he continued to work, trying to “work through it” as he had done with injuries which he suffered in the past. It was not until he realized that his ankle was not getting better and, in fact, was getting worse, that he sought medical attention and reported to his employer.
The employer tried to accommodate him with light duties but the worker found it difficult to do his job since most of his duties weren’t consistent with limited physical activity. While the worker did attempt to limit activities that would cause pain, even driving caused his ankle to feel worse. Once he realized his ankle was not getting better, the worker sought medical assistance. The worker was diagnosed as having a sprain and obtained an ankle brace from a clinic after seeing a physician. He underwent physiotherapy but it didn’t eliminate the pain.
The employer reported the injury to the WCB when it became evident that the worker was unable to keep working. The worker eventually sought re-training because he found that his job kept causing the pain to flare up.
The worker's employer did not participate in the hearing.
The panel accepted the presentation and reporting of details of the injury provided by the worker. The employer, in reporting to the WCB, confirmed that the injury occurred at work. The panel acknowledges the delay in reporting the injury to the WCB but determined that the delay was not unreasonable given the circumstance. The worker first sought medical attention 13 days after the incident when he realized his ankle was not improving. The employer reported to the WCB when it became evident that the worker’s injury was more than just minor and was not resolving. The panel further notes that the employer provided a written submission to Review Office dated July 12, 2018, indicating that they were aware of a work injury, had reported it, and that the worker had been moved to lighter duties.
The panel also notes the worker had suffered injuries in the past; in particular a back injury which was not reported to the WCB as it was his nature to see if things would heal on their own. That injury eventually healed. The worker’s response to this more recent injury was in keeping with his past practice of waiting for the injury to heal without taking time off work or making a WCB claim.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The panel therefore finds that the worker’s claim is acceptable.
The worker's appeal is allowed.
K. Gilson, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of March, 2019