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 June 12, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 27, 2018, the worker reported to the WCB that he injured his right knee when he fell on it as he was getting out of a truck at work on September 5, 2017. He advised that he "…took a couple of days off as I thought it would get better" and reported his injury to his employer on September 9, 2017. On July 10, 2018, the employer filed an Employer Incident Report with the WCB, indicating that they had no "record or indication that a report was received at this time."

On July 18, 2018, the worker discussed his claim with his WCB adjudicator. He advised the adjudicator that he did not report the incident when it occurred as he was hoping it would go away and he took over-the-counter medication for the injury. He said he had immediate pain of 8/10, that there was swelling and his knee was "a little bit red" on September 6, 2017. The worker advised that he walked with a limp and had difficulty weight bearing. The adjudicator asked the worker why he did not report this injury when he was at the WCB on September 6, 2017 for a call-in examination on another WCB claim, and he said that he thought the WCB "would make him go back to work."

On July 31, 2018, Compensation Services advised the worker that his claim was not acceptable, as they were unable to establish that he sustained a workplace injury to his right knee on September 5, 2017. Compensation Services noted that the medical reports on file dated September 25 and October 5, 2017 did not reference his right knee and only addressed difficulties in his left knee related to another WCB claim. Compensation Services further noted that the worker attended call-in examinations at the WCB on September 6 and September 20, 2017 and did not mention an injury to his right knee at either examination; the worker's active guided mobility for his right knee was reported as normal at the September 20, 2017 examination; and a medical report for treatment on February 15, 2018 also indicated right knee issues for the past two weeks.

On August 7, 2018, the worker requested that Review Office reconsider Compensation Services' decision.  The worker advised that he had surgery on his right knee on July 25, 2018 due to the injury he sustained at work, and noted that he had received no income or therapy for his injury for almost a year.

On September 25, 2018, Review Office determined that the worker's claim was not acceptable.  Review Office found that the evidence on the worker's claim, as well as on his existing 2015 claim for an injury involving his left knee, did not support that the worker had a workplace accident as defined by The Workers Compensation Act (the "Act").  Review Office noted that the worker did not report his injury until approximately nine months after the accident occurred and the employer had no record or information that he sustained an injury in September 2017.  Review Office found that the worker's delay in reporting the injury was significant and made it difficult to establish that an incident occurred on September 5, 2017.  Review Office further noted that the worker attended for two call-in examinations with the WCB and met with his WCB case manager in September 2017, but did not mention his right knee symptoms or difficulties at any of those times.  Review Office further noted that medical reports for the September 25 and October 5, 2017 appointments made no reference to the worker having difficulties with his right knee.

On November 28, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing 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.

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, 

(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.

Worker's Position

The worker was assisted by an advocate and participated in the hearing by teleconference. The worker was provided with the services of an interpreter. The worker and his advocate made a joint presentation and responded to questions from the panel with the assistance of the interpreter.

The worker's position was that he injured his right knee at work on September 5, 2017 and his claim should be accepted.

The worker said the injury occurred as he was trying to get out from his truck. He had undergone surgery on his left knee two years earlier, and was unstable. He had to go down the steps of the truck, which were high up. He was trying to lean on the truck and "almost fell, like almost collapsed" and felt very sharp stabbing pain in his right knee."

The worker stated that by the end of September 2017 he wanted to visit his family overseas, but was unable to do so because of his injury and the severe pain he was experiencing. A friend drove him to another province, where he saw a family physician. He said that his knee was starting to swell a lot at that time, and he had to see his physician every two weeks after that for his injury. As his claim had not been approved, he was on a waiting list for surgery for about 10 months, before finally undergoing surgery on his right knee on July 25, 2018.

The worker said that he has not received any compensation since his injury in 2017. He started working again in January 2019. He submitted that because the WCB did not accept his claim and he had no money, he could not pay for physiotherapy or other treatment, and the whole process and his recovery and return to work had been delayed.

In conclusion, it was submitted that the worker's claim should be accepted and he should be entitled to wage loss and other benefits as provided under the Act.

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 unable to make that finding, for the reasons that follow.

The panel notes that there are a significant number of inconsistencies on file and in the information provided at the hearing and finds that the worker is a poor historian.

Based on our review of the information on file and as presented at the hearing, the panel is unable to identify a mechanism of injury. The panel finds that the description of the incident which was said to have resulted in the worker's right knee injury is limited and inconsistent. This includes:

• In the Worker's Incident Report, dated June 27, 2018, the worker stated that "I came out of the truck and fell on my right knee." 

• Information on the 2015 claim file for a left knee injury indicates that in a May 23, 2018 telephone conversation between the Review Office and the worker, with an interpreter, the worker said "he was coming out of the truck, when his left leg gave out and he fell to the ground, onto both of his knees." 

• In her November 9, 2017 chart notes, the worker's treating physician noted that the worker was complaining of "R [right] knee pain started about a week ago. No injuries… " 

• At the hearing, the worker stated that he "almost fell, like almost collapsed," that "he did not fell (sic), but he, like, move forward and almost fell, but he didn't fell (sic) on the concrete…but almost."

The panel finds that there are further inconsistencies in the worker's description of the pain he experienced at the time of the incident and in the days that followed. Information on file of a July 18, 2018 telephone conversation between the WCB adjudicator and the worker notes that the worker stated that he had immediate pain when the incident occurred of 8/10 and the following day of 8/10, when walking or moving his leg in any direction. At the hearing, the worker stated that he felt very sharp stabbing pain at the time of the incident. In response to questioning, the worker indicated that his knee was very sore the next day and that "It didn't get better…it got worse, and it was swelling more and more and more." Following further questioning with respect to the worker's attendance at the call-in examination at the WCB on September 6, 2017, being the day after the date of incident, and the lack of any mention of right knee problems in the notes of that examination, the worker indicated that the pain started getting worse "after five, six days" or "maybe four to five it's developed, getting worse and worse."

The panel places weight on the notes from the September 20, 2017 call-in examination, which was two weeks after the date of incident. The panel notes that the worker was examined by a WCB physiotherapy consultant and a WCB senior medical advisor, with an interpreter in attendance, for a re-assessment of a permanent partial impairment (PPI) impairment rating in relation to his left knee claim. The notes indicate that the assessment involved a one hour and 35 minute history and physical examination of the worker, with communication consistently undertaken through an interpreter. There is no indication, however, that the worker mentioned any right knee injury or difficulties or complained of any right knee pain at that time. The notes show that the examining consultant and advisor looked at the worker's right knee, but did not identify any problem or symptomatology. The right knee was tested and compared to the worker's left knee to arrive at the PPI rating for his left knee. The panel notes that the measured range of motion of the worker's right knee at that time was normal and the same as it had been at a previous PPI examination on June 13, 2017.

The panel notes that at the hearing, the worker indicated that his friend had suggested he see a particular physician in another province who spoke his language. The worker said that the right knee pain became worse, which was why "he went to see a doctor in [location] that speaks the same language, that he could explain." The panel finds that the medical evidence on file from the treating physician, however, does not support the worker's assertion that he first attended the physician due to a September 5, 2017 right knee injury or that right knee difficulties were at issue at that time. The panel notes, in this regard, that:

• Chart notes for September 25, 2017 indicate that the worker came in to review his left knee injury. There is no reference in those notes to the worker's right knee. 

• Chart notes from October 5, 2017 are for a follow-up with respect to the worker's left knee pain. Again, the worker's right knee is not mentioned. 

• The first reference to the worker's right knee is in the November 9, 2017 chart notes. In addition to reporting that the left knee is getting worse, it was noted, as indicated above, that the worker was also complaining of right knee pain which "started about a week ago. No injuries." The physician goes on to document that there is minimal effusion and the worker's right knee range of motion is full.

In conclusion, the panel acknowledges that the worker has experienced difficulties with his right knee, but is unable to attribute the worker's right knee pain and difficulties to a workplace incident or injury on September 5, 2017. The panel therefore finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment, and that the worker's claim is not acceptable

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of August, 2019