The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on July 25, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On a Worker Incident Report, submitted to the WCB on February 14, 2018, the worker reported an injury to his left leg resulting from an incident at work on February 12, 2018. He described the incident as:

Around 9:30 a.m. I was preparing a load for transport. I was strapping the load down on the flat deck. As I threw the strap over the load I slipped on the ice. My left foot went out in front of me and I did the splits.

I felt instant pain…down the back of my leg. Now the bulk of the pain is behind my knee.

Two guys had to help me up off the ground and into the building…

The worker sought medical treatment later the same day from a walk-in clinic. The treating physician noted that the worker's left leg was more swollen than his right leg and directed the worker to the nearest emergency department in order to rule out a possible deep vein thrombosis ("DVT"). The worker attended at the local emergency department where he was triaged; however, unable to wait due to increasing pain in the leg, he left without being seen by a physician.

On February 14, 2018, the worker was seen by a physiotherapist for an initial assessment. At that time, he reported "Severe pain in left calf/knee" to the physiotherapist, who noted that the worker was unwilling to move his knee due to pain. The physiotherapist diagnosed the worker with a calf strain and questioned whether he had internal derangement of the knee. The physiotherapist reports "no signs today of DVT".

The worker saw his family physician on February 15, 2018, who referred him directly for an ultrasound on his lower left extremity. The ultrasound report of the same date indicated "Positive DVT left lower extremity." The worker was sent to the emergency department for management of the DVT and started on a 9-day course of anticoagulant medications by the attending emergency room physician. He returned to see his physician for a follow-up appointment. The worker's treating physician noted swelling to the worker's left calf with pain on flexion and extension of the worker's ankle. The physician noted that the worker was confirmed to have a DVT and was taking medication for it. The worker was diagnosed with trauma to his left leg.

At a follow-up appointment with the worker's treating physician on February 26, 2018, the worker reported "less pain and swelling" and that he still required crutches for ambulation. The physician noted that the edema of the worker's left calf was still present but had decreased and the worker's calf was still tender.

On March 2, 2018, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor opined that the worker was diagnosed with a DVT "…but this does not likely relate to the workplace event." The WCB medical advisor noted that "Deep venous thrombosis may occur in relation to injury but it is improbable to manifest evidence of DVT immediately after the injurious event." The WCB medical advisor also commented that all of the clinical evidence on the worker's file related to the DVT that was diagnosed and there were no other reports "...consistent with substantial tissue injury having occurred in the workplace on February 12/18."

Initially, the WCB accepted the worker's claim on February 21, 2018. But, on March 6, 2018, the WCB advised the worker that his claim was not acceptable. The WCB advised that a connection between the worker's current diagnosis and his work duties of February 12, 2018 could not be established as symptoms of a DVT would not occur immediately following an injury and no other diagnosis related to a tissue injury had been provided.

The worker requested reconsideration of the WCB's decision to Review Office on June 13, 2018. On August 28, 2018, Review Office determined that the worker's claim was not acceptable. Review Office found that the evidence on the worker's file did not support a relationship between the worker falling at work and the immediate development of a DVT.

The worker's representative filed an appeal with the Appeal Commission on January 29, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Worker's Compensation Act, (the "Act") and regulations, and the policies set by the WCB's Board of Directors.

Section 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, 

(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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. 

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation. The Policy states that: 

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment. 

The following definitions are set out in the Policy: 

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury. 

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury. 

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented in the hearing by a worker advisor, who provided the panel with a written submission as well as making oral submissions. Both the worker and the worker advisor also answered the questions of panel members during the course of the hearing.

The worker advisor reviewed the circumstances of the fall that occurred on February 14, 2018, noting that the worker was at that time strapping down a load at a third party business location in his capacity as a transport truck driver for the employer.

Before he fell, the worker advisor stated, the worker exhibited no symptoms of swelling or pain in his left leg. Immediately after the fall, the worker could not rise to his own feet and required assistance from two individuals to get up and move away from the location of the fall.

The worker advisor stated that these facts alone support that an accident occurred arising out of and in the course of employment and that the worker suffered an acute injury as a result of that accident.

In her submission to the panel, the worker advisor noted that regardless the diagnosis, whether DVT or calf strain or something else, the facts point to the worker having incurred an injury as a result of an accident. With respect to the comments of the WCB that the evidence does not support that the DVT was the result of the fall, the worker advisor noted that once this diagnosis was identified, whether caused by the fall or exacerbated by it or simply co-occurring, the treatment of the DVT took priority as a condition that was potentially life threatening. In the result, further investigations into the earlier diagnosis of calf strain were not undertaken.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding.

In determining acceptability of the claim, the panel must consider whether there was an accident arising out of and in the course of employment. Here, the facts are as set out in the worker's incident report, outlined above and in response to questions from the worker advisor as well as members of the panel during the hearing. While loading the flatbed trailer behind his truck at a third party pickup location at approximately 9 a.m. on February 12, 2018, the worker noted that the surface of the loading area as ice-covered and slippery. As a result, he described using a shuffling kind of walk to move around the area. To strap the load onto the trailer, he needed to toss the strapping bundle over the load and across the width of the trailer. He threw the straps with his right hand, in a stance with his right leg back and his left leg forward. With each throw, his weight shifted from the rear leg to the forward leg. On one such throw, approximately midway down the length of the trailer, his left leg slipped forward as the weight shifted onto it, causing him to fall into a partial splits and then down. He described rolling onto his side as he fell so that the impact on landing was mostly on his side.

After he fell, the worker was unable to get up and required assistance from two others in the loading yard to get off the ground. Once he was assisted indoors by these two individuals and seated, the worker contacted his employer by telephone to advise what happened. The employer sent two other drivers to the site, one of whom continued with the load pickup and the other drove the worker back to his employer's offices.

On the basis of the worker's report and oral evidence, the panel has no difficulty in concluding that the circumstances of the fall described by the worker fall within the definition of an "accident" under the Act, as a chance event that took place in the course of his employment.

Having determined this first question, the panel must then consider whether the worker was injured as a result.

The Workers' Incident Report dated February 14, 2018 set out that when the worker fell: " I felt instant pain…down the back of my [left] leg. Now the bulk of the pain is behind my knee." As a result, the worker noted he required assistance of two individuals to get up from the ground. In answering the questions of the worker advisor, the worker stated that when he fell, he "…felt it pull" with pain just a split second before he hit the ground. He described the pain as "excruciating" when he tried to put weight on the left leg and noted he could not straighten his leg.

When he had been assisted in getting inside the third party site office after the fall, the worker immediately elevated his leg and applied ice to the knee area. He stated that there was swelling on the inside of his left knee and that it was made more comfortable so long as he was not moving.

The worker confirmed in his evidence that prior to this fall he had no history of left leg swelling or pain in his left leg.

The panel considered the evidence of the worker as well as the initial medical reports as to the circumstances in the days following the fall. The worker described to the panel that after returning to his workplace, he sought medical attention, first from his own physician who could not see him until February 15 and then from a nearby walk-in clinic.

The treating physician at the walk-in clinic, in her Doctor First Report, noted that the worker reported a fall on ice at work earlier that morning, with a swollen leg since then. She noted that the worker's left leg was swollen, measuring 41 cm whereas his right leg measured 39 cm at the calf. She was concerned that the worker had a DVT and sent him to the ER at a nearby hospital to rule out that diagnosis.

The worker went to the ER as recommended and was triaged there but was not seen by a doctor because, as he explained to the panel, he became impatient with the wait and was experiencing increasing pain in his left leg, which he could not elevate or apply ice to in the waiting room. He left the ER without treatment or assessment and on his way home, purchased crutches from a local drug store.

The worker described to the panel that he kept his leg elevated and iced over the course of the next two days until he was able to attend for a physiotherapy assessment on February 14, 2018.

The Physiotherapy Initial Assessment report outlines that the worker reported severe pain in his left calf and knee, with pain subjectively rated at 8/10. On assessment, the physiotherapist diagnosed a possible calf strain and internal derangement of the knee based upon clinical findings as follows:

Swelling noted in the upper calf area, some swelling noted in the knee joint, palpation highlights fluid at posterior joint. Pt unwilling to move knee due to pain therefore no ligament stress tests completed.

The physiotherapist noted that the worker reported that the walk-in clinic physician suggested a possible diagnosis of DVT and stated "no signs today of DVT."

The next day, the worker saw his own physician, complaining of pain and tenderness in his left calf and back of knee. As set out in the Doctor First Report, on examination, the physician reported swelling in the left calf with increased pain on flexion and extension of the ankle as well as tenderness in the popliteal fossa. The worker's physician sent the worker for an urgent ultrasound, suspecting DVT.

The ultrasound report of the same day found evidence of DVT in the lower left extremity. The worker was then sent to the ER for management of the DVT and was treated for the DVT with anti-coagulant medication as an ER outpatient for the following 9 days and, subsequently, with monitoring by his own physician until January 2019.

The worker described to the panel using the crutches he purchased on the date of the fall for two weeks, and then reducing to one crutch for one week until he felt able to walk about without crutches. He noted that the swelling diminished after about one week, although there was still some swelling when he returned to work, and occasionally he still experiences some swelling in his left leg after driving his truck. The worker advised that when that swelling still occurs, it is alleviated by elevating his leg.

The worker confirmed that he returned to work on regular duties on March 12, 2018. On questioning from the panel, the worker advised that he was offered light duties by his employer some 1-2 weeks after the fall, but he declined those on the basis that he believed recovery would be faster if he kept the leg elevated. He indicated that his employer did not press the issue.

On March 2, 2018, a WCB medical advisor reviewed the worker's file and noted that "Deep Venous thrombosis may occur in relation to injury but it is improbable to manifest evidence of DVT immediately after the injurious event. A DVT was diagnosed in this case but this does not likely relate to the workplace event." The WCB medical advisor went on to state that "…there has not been clinical reporting consistent with substantial tissue injury having occurred in the workplace on February 12, 2018."

The panel notes that the worker's claim was initially accepted for a calf strain injury. Consistent with his statement in the Worker Incident Report, in a conversation with the WCB case manager on February 27, 2018, the worker described how the injury occurred and noted that shortly thereafter, his "leg was swollen like crazy and he had an incredible amount of pain." At that time the worker advised that his left leg was still very swollen and that the pain increased with the swelling. He noted that "his calf and the back of his knee are still strained from the fall as he stretched everything…."

The worker advisor acknowledged that the worker has numerous pre-existing conditions, risk factors and a family history that increase his risk for experiencing DVT, but noted that the worker had no prior history or indication of DVT, nor did the worker have any prior history of swelling in his left leg. While the WCB medical advisor opined that DVT was not likely related to the workplace fall, the medical advisor did allow that DVT can result in relation to an injury.

Here, the worker was not diagnosed with DVT until several days after the fall occurred. The evidence supports, however, that an injury did occur on the date of the fall, resulting in swelling and "excruciating pain" in the worker's left calf and back of knee area.

In considering the question of whether the worker was injured as a result of the fall that occurred in the course of his employment on February 12, 2018, the panel carefully considered all of the medical reports on file as well as the worker's own testimony. Based upon the reported medical findings and the evidence of the worker, the panel concludes, on a balance of probabilities that the symptoms described by the worker are consistent with the mechanism of injury described and that the worker was injured as a result of the fall that occurred on February 12, 2018.

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. The panel finds, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of employment on February 12, 2018. The claim is therefore acceptable.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of August, 2019