The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A teleconference hearing was held on October 13, 2020 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On December 18, 2018, the employer provided an Employer Incident Report to the WCB detailing that the worker advised he injured his leg in an incident at work on December 15, 2018 while delivering a heavy appliance. The worker further advised the employer that he went to his cabin on the weekend and the pain in his leg got worse. He attended at the hospital where the physician told him it was a torn ligament and he required a couple of weeks to recover. The worker provided the employer with a doctor’s note.

The WCB received a copy of the hospital report and x-ray taken on December 17, 2018. The hospital report indicated the worker reported an injury to his left knee at work when he “…twisted and heard popping sound” with the pain increasing and he was unable to bend or extend his leg fully. The x-ray findings were normal, and the worker was diagnosed with a left knee sprain. The physician recommended the worker follow-up with his family physician and a referral was made to an orthopedic surgeon.

The worker filed a Worker Incident Report with the WCB on December 27, 2018, describing the injury to his left knee that occurred on December 15, 2018 when his foot “…slipped on some ice in the box of the truck and my body shifted to the side and my left foot stayed in place. I heard a popping noise but it did not hurt. It was around 5:00 pm so I finished working my shift.” The WCB confirmed the mechanism of injury with the worker on December 28, 2018 and his claim was accepted.

On January 4, 2019, the worker saw his family physician for follow-up and was referred for an MRI. The MRI conducted on January 18, 2019 indicated a “Possible short segment oblique tear anterior horn lateral meniscus.” On February 1, 2019, the family physician recommended the worker consult an orthopedic surgeon.

The worker’s file was reviewed by a WCB medical advisor on February 5, 2019 who provided an opinion that the worker’s left knee lateral meniscus tear was medically accounted for in relation to the December 15, 2018 workplace accident.

The WCB contacted the worker on March 6, 2019 to further investigate. The worker advised he injured his knee near the end of the day on December 15, 2018 while working with a coworker. The worker confirmed he went to his family’s cabin that evening for the weekend, returning on Sunday evening. His spouse helped him with painkillers and ice as the pain in his knee had gotten worse and he attended for medical treatment in the evening on the next day. The worker advised the WCB that he had been terminated by his employer.

On March 18, 2019, the WCB advised the worker that his entitlement to wage loss would end on March 24, 2019 as his loss of earning capacity was no longer related to his compensable injury.

On April 4, 2019, the employer contacted the WCB and requested Review Office reconsider acceptance of the worker’s claim. On May 7, 2019, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB contacted the employer on May 22, 2019 to confirm the time and the location the workplace accident occurred. On May 24, 2019, the employer confirmed the delivery time noted on their records was for 1:00 pm on December 15, 2018 and noted the location. The WCB advised the worker on July 8, 2019, after a review of his file and the new information received from his employer, due to inconsistencies in reporting, his claim was not acceptable and the WCB would not be responsible for any additional wage loss or medical treatment.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on August 6, 2019. The representative provided a detailed chronology of the timeline of events after the workplace accident from the worker and noted the worker had been consistent in his reporting of the incident and seeking medical treatment.

Review Office referred the worker’s file back to the WCB’s Compensation Services for further investigation of the new information provided in the submission on August 8, 2019. The WCB contacted the worker’s supervisor who confirmed when the employer was advised of the worker’s injury and on September 20, 2019, spoke to the coworker present with the worker when the workplace accident occurred. On September 20, 2019, the WCB advised the worker there would be no change to the earlier decision that his claim was not acceptable.

On February 24, 2020, the worker’s representative again requested reconsideration of the WCB’s decision to Review Office, restating their position from the August 6, 2019 submission. Review Office rescinded the WCB’s decision on April 9, 2020 and determined the worker’s claim was acceptable. Review Office found the evidence supported the worker was at work when an accident took place, and he was injured. Review Office further found the incident was reported consistently by the worker and his coworker and the worker sought medical treatment for his injury a few days after the workplace accident.

The employer filed an appeal with the Appeal Commission on April 22, 2020. A teleconference hearing was arranged for October 13, 2020.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) 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….

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work.

Employer's Position

The employer appeared on his own behalf. He provided an oral submission to the panel and answered questions posed to him by panel members.

The employer stated his position that the worker's claim should not be accepted because the evidence does not support the worker’s description of events. The employer noted that the delivery on December 15, 2018 was scheduled to occur at 1:00 p.m. and the worker’s shift did not end until 6:00 p.m., but that the worker stated the injury occurred at 5:00 p.m. The employer suggested the discrepancy in timing was suspicious and noted that he found it hard to believe the worker could continue to work through to the end of his shift based on the injury he sustained.

The employer also outlined to the panel the unrelated circumstances occurring around the same period that ultimately led to the worker’s dismissal from his employment. The employer noted that the worker would have been dismissed sooner but for the fact of his injury and the WCB claim. The employer’s position is that these unrelated surrounding events call into question the worker’s credibility with respect to reporting of his injury.

The employer noted that the worker stated he went to his cabin after work on Saturday and remained there until Sunday. The employer suggested that the injury more likely than not occurred there.

In sum, the employer’s position is that the evidence does not support a finding that the worker’s injury occurred arising out of and in the course of his employment, and therefore the claim is not acceptable and the appeal should be allowed.

Worker's Position

The worker did not participate in the appeal.

Analysis

The question before the panel is whether the worker's claim is acceptable. For the employer's appeal to be successful, the panel would have to find that the worker was not injured as a result of an accident that occurred on December 15, 2018 arising out of and in the course of his employment. The panel was not able to make such a finding for the reasons that follow.

The employer’s position is that given the other circumstances surrounding the worker’s employment, the timing of the worker’s injury is suspicious, and his story is not credible. Further, the fact that the worker continued to work until the end of his shift makes it hard to believe he was injured at all. The employer suggested that it is more likely than not that the worker injured himself during his weekend activities than in the course of his work activities.

The panel finds that the employer’s position that the worker was injured as a result of an accident or event occurring outside of his employment is speculative, and that there is no evidence to support that position.

The panel finds that the evidence does support the worker’s claim that he was injured as a result of an accident that occurred while he was working on December 15, 2018. The panel notes that the worker’s statement to the Emergency Room personnel taking his history on December 17, 2018 that he was seeking medical attention due to “Injury to L knee at work on [S]aturday, twisted and heard popping sound. Since [S]aturday, knee pain has gotten worse, and now can’t bend or extend fully”

The panel also reviewed the screenshot copy of text messaging between the worker and his manager, provided to the WCB by the manager. This screenshot outlines a conversation in which the worker advised his manager on the evening of December 17, 2018 that he “...pulled something [S]aturday” but didn’t go to the hospital then because he didn’t think it was that bad. The panel acknowledges that the worker did not link the injury, in this message, to his employment, but notes that the next day, as outlined in the Employer Incident Report to the WCB, dated December 18, 2018 the worker described the accident to the manager as follows:

“[The worker] said on Saturday Dec 15/18 he must have slid on back of truck doing a washer delivery. Said he went to his [cabin] on the weekend & pain got worse. Said it did not hurt really bad until Monday when he went to hospital. Doctor told him torn ligament & would need a couple weeks to recover.”

The panel notes that each of these statements are also consistent with the worker’s statement to the WCB in the Worker Incident Report of December 27, 2018 in which the worker reported the incident as follows:

“We were unloading an appliance from the truck. I was on the box of the truck. My foot slipped on some ice in the box of the truck and my body shifted to the side and my left foot stayed in place. I heard a popping noise but it did not hurt.”

The panel also reviewed the WCB case manager’s notes of a September 12, 2019 conversation with a witness to the incident. That witness confirmed that the worker was injured while at work and in the course of his work on December 15, 2018, although the details of the conversation are not consistent with the other information on file. The panel therefore places less weight upon this statement, noting it was not provided until some 9 months after the injury occurred.

While the evidence does not definitively establish at what time during the worker’s shift the accident occurred, the panel is satisfied on the basis of the evidence before us, and on the standard of a balance of probabilities, that the accident did occur in the course of the worker’s employment on December 15, 2018.

The medical reporting on file confirms that the worker attended for treatment of left knee pain on the evening of December 17, 2018. The x-ray taken at that time confirms there was not any fracture or dislocation identified. Clinical findings included poor range of motion and clicking but no locking with lateral condyle ligament pain. The worker was later referred by his own physician for follow up and an MRI study. The MRI report of January 18, 2019 revealed a possible short segment oblique tear to the anterior horn of the lateral meniscus.

A WCB medical advisor reviewed the worker’s file on February 5, 2019 and concluded the diagnosis of a left knee lateral meniscus tear was medically accounted for as arising out of the December 15, 2018 workplace injury described by the worker, noting that the reported symptoms, clinical findings and MRI study results all supported this diagnosis. Further, the medical advisor confirmed that the mechanism of reported injury would account for the worker’s diagnosis.

Based on the medical findings and opinions, the panel is further satisfied that as a result of the workplace accident of December 15, 2018, the worker was injured. The panel therefore concludes that the evidence supports, on a balance of probabilities, that the worker was injured as a result of an accident that occurred arising out of and in the course of his employment on December 15, 2018.

The claim is therefore acceptable.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of November, 2020