The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for her wrist injury as being a consequence of the June 15, 2018 accident and that she is not entitled to benefits after June 15, 2018. A hearing was held on June 12, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's wrist injury as being a consequence of the June 15, 2018 accident; and

Whether or not the worker is entitled to benefits after June 15, 2018.

Decision

Responsibility should be accepted for the worker's wrist injury as being a consequence of the June 15, 2018 accident; and

The worker is entitled to benefits after June 15, 2018.

Background

The worker reported on a Worker Incident Report, dated August 22, 2018, that she injured her left leg, knee, right arm and hand in an incident on June 15, 2018. She described the incident as:

I was at [sports facility] to get tickets for an event, I came out the door, I tripped over a brick. I took about 4-6 giant jumps trying not to fall, with every step I felt myself getting lower and lower to the ground. Eventually I smashed into a bike rack. My left knee hit a hard surface. I got up and finished my shift.

The next day my left leg gave out on me and I fell down. My right arm was very sore that day too.

The employer noted on the Employer's Incident Report submitted to the WCB on August 22, 2018 that the worker injured her left leg and right arm after she "Tripped on a piece of raised concrete…" and that she reported "abrasion and swelling left knee and tenderness right hand/forearm." It was also noted "Further injuries were sustained by worker on June 17, worker attributes injuries sustained in a fall to the damage to her left leg/knee 2 days prior."

The worker attended at a local emergency room on June 17, 2018. She reported that she fell that day on her outstretched right arm and twisted her left ankle. She further reported right wrist pain and bruising to her left ankle and that she had injured her right wrist two days earlier. The treating physician noted that the worker's right wrist was tender on the dorsal aspect and that there was pain to the wrist with supination. An x-ray conducted on the worker's right wrist noted a fracture to the worker's distal radius and her wrist was casted.

In a discussion with her WCB case manager on August 27, 2018, the worker confirmed the mechanism of her injury on June 15, 2018 and advised that on June 17, 2018, she was out for a walk and her left leg "…gave out on her, she fell and broke her wrist." She further noted that she attended for physiotherapy on August 2, 2018 and the physiotherapist noted that her injury was likely the result of her first fall on June 15, 2018.

On August 30, 2018, the WCB advised the worker of the status of her claim. The worker was advised that her claim for an accident that occurred on June 15, 2018 was accepted. However, her claim for a further injury on June 17, 2018, related to the June 15, 2018 accident, was not accepted and she was not entitled to further benefits after June 15, 2018. The WCB noted that the worker did not seek medical treatment until after the June 17, 2018 accident and as such, a relationship between the accepted compensable accident of June 15, 2018 and the worker's ongoing difficulties after her non work related fall of June 17, 2018 could not be established.

The worker requested reconsideration of the WCB's decision to Review Office on September 4, 2018. On October 11, 2018, the employer submitted a letter in support of the worker's request for reconsideration. The employer felt that the worker's injuries sustained on June 17, 2018 "…were significantly contributed to by the residual weakness remaining from the injuries that were sustained in the June 15th trip and fall."

On October 24, 2018, Review Office determined that responsibility would not be accepted for the worker's subsequent injury and the worker was not entitled to benefits after June 15, 2018. Review Office found that the worker reported that she was sore but did not seek medical treatment after the workplace accident of June 15, 2018, which supported her level of function after the workplace accident. It was noted that the worker was out for a walk on June 17, 2018 when she reported falling because her left leg was weak. Review Office noted that her ability to go on a walk did not support that there was any level of dysfunction in her left knee and as such, Review Office could not establish that the worker suffered an injury subsequent to her compensable injury. Further, Review Office found that there was no evidence on the worker's file that the worker had reported any difficulties or sought medical treatment in relation to the June 15, 2018 workplace accident. As Review Office had previously found that the worker did not suffer an injury subsequent to a compensable injury and there was no evidence that the worker required benefits beyond the date of the original injury, it was determined the worker was not entitled to benefits after June 15, 2018.

The worker filed an appeal with the Appeal Commission on October 29, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB Board of Directors.

Subsections 4(1) of the Act provides:

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 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(2) provides that:

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) provides that:

The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Subsection 37 provides that:

Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2) provides that:

Subject to subsection (3), wage loss benefits are payable until 

(a) the loss of earning capacity ends, as determined by the board; or 

(b) the worker attains the age of 65 years.

The WCB Board of Directors enacted WCB Policy 44.40.10, Evidence of Disability. This policy provides that Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition.

WCB Policy 44.10.20.10, Pre-Existing Conditions relates to pre-existing conditions and further injuries and in part provides that; 

(a) When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. 

(b) When a worker has: 

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker is appealing the WCB decision to accept responsibility for a subsequent injury and entitlement to benefits beyond June 15, 2018. The worker represented herself at a hearing held on June 12, 2019 where she responded to questions from the appeal panel.

The worker's position is that her subsequent injury to her wrist was the result of a compensable injury. Her original injury to her knee involved muscle strains. Her knee gave out after descending from a sloped concrete structure below a bridge. Her left arm took the brunt of her fall resulting in a fractured bone in the arm.

Employer's Position

The employer provided a letter that supported the worker's claim. The employer did not attend the hearing.

Analysis

The worker is seeking WCB acceptance of responsibility for her right wrist injuries, either from her original fall of June 15, 2018 (which has been accepted as a compensable accident) or from a second fall on June 17, 2018 (which has not been accepted as a compensable accident). After consideration of all the evidence on file and as presented in the hearing, the panel finds, on a balance of probabilities, that the worker's fall on June 17, 2018 was predominantly attributable to her compensable injury two day earlier, and that the fractured wrist she suffered that day is therefore a compensable injury under the Further Injuries policy.

In reviewing the circumstances, surrounding the first incident, the panel accepts the evidence that the worker's June 15, 2018 accident involved muscle strains, contusions and abrasions to her left knee. In the panel's view, the typical symptomatology associated with this type of injury would involve significant muscle soreness, tightness and weakness within the first few days. The panel places little weight on the worker not seeking medical attention at the outset, given that there were no indications of significant knee pathology, but rather superficial injuries that would be painful and uncomfortable which would be anticipated to heal over time without medical attention.

As to the second incident on June 17, 2018, the panel carefully questioned the worker as to the mechanism of injury leading to her fall. The panel accepts the worker's evidence. In particular, that her fall involved her walking on a section of angled concrete, placing a sideways load of her left leg that was already compromised by the original accident, leading to the worker's original description that her left knee "gave out" at which time she fell to the ground injuring her right wrist. The panel finds that the worker's original compensable injury significantly contributed to the June 17, 2018 fall and resulting wrist fracture.

In the result, the panel finds that the worker's right wrist injury is a consequence of the June 15, 2018 compensable accident and the worker is entitled to benefits after June 15, 2018 in respect of that injury.

The worker's appeal is accepted.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of August, 2019