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 teleconference hearing was held on August 18, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker submitted a Worker Incident Report to the WCB on June 13, 2019 indicating he injured his right ankle while loading heavy material at work on May 30, 2019. The Employer’s Accident Report noted the worker reported the incident to the employer on May 30, 2019 but that on questioning regarding the incident, the worker “…denied his pain was work related” and responded that he had the pain for a while.

The worker sought medical treatment on May 31, 2019, reporting injury to his right ankle when “pulling something heavy”, with the pain keeping him up at night. The physician noted tenderness along the worker’s anterior shin with foot flexion and extension but did not find any bruising or swelling. The physician queried a diagnosis of shin splints, prescribed anti-inflammatory medication and provided a sick note for the worker to be off work from May 31, 2019 to June 4, 2019. On follow-up the physician noted improvement in pain and recommended the worker remain off work to June 14, 2019.

On June 21, 2019, the WCB contacted the worker to discuss his claim. The worker advised the WCB adjudicator that he thought he hurt his ankle while pulling and stretching his leg during loading and unloading materials at work but could not provide a specific incident that caused his pain. The WCB advised the worker the same day that his claim was not acceptable as it could not establish any connection between his diagnosis of shin splints and a workplace accident occurring on May 30, 2019.

The worker requested reconsideration of the WCB’s decision on August 1, 2019 and provided additional information to Review Office on September 5, 2019. The worker noted that after loading heavy material in trucks, he sat down and began to feel pain in his right leg, shin, calf and ankle. He further noted that when asked by his supervisor if the pain was related to his work, he responded he was not sure as he had not had that type of pain before. On October 15, 2019, the employer’s representative provided a submission in support of the WCB’s decision.

On November 1, 2019, Review Office determined the worker’s claim was not acceptable, noting inconsistencies in the worker’s reporting of the workplace accident and that the worker did not appear to know when or how his injury occurred. Review Office further noted the worker’s diagnosis of shin splints was not consistent with the mechanism of injury reported by the worker.

The worker’s representative filed an appeal with the Appeal Commission on February 21, 2020. A teleconference hearing was arranged for August 18, 2020. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 2, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes any event arising out of and in the course of employment as well as any “...thing that is done and the doing of which arises out of, and in the course of, employment....” When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.

Worker’s Position

The worker appeared before the panel represented by a worker advisor and with the assistance of an interpreter. The worker advisor made submissions on behalf of the worker. The worker, through the interpreter, answered questions put to him by the worker advisor as well as by members of the appeal panel.

The worker’s position is that he was injured at work on May 30, 2019 in the course of and as a result of undertaking his job duties. The worker advisor set out that there was a significant increase in the worker’s job duties on May 30, 2019 which placed significant strain on his body such that he over-exerted himself in completing those duties and was injured.

The worker provided detailed evidence, with the assistance of the interpreter, in respect of his specific job duties on May 30, 2019. He described his usual job duties and noted that on May 30, 2019 he spent the entire day, working with a coworker, loading three semi-trailers. While he loads trailers approximately twice a month, usually only one trailer is loaded in a day. After each trailer was loaded, he took a break in the lunchroom.

Near the end of the day, after moving pallets of materials of varying heavy weights, from 900 – 4000 pounds each, using a pallet jack, he went into the lunchroom to take a rest around 3:00 p.m. At that time, he noted increasing pain in his right lower leg and felt he could not continue working. He told the panel that he reported to a manager that he had a lot of pain in his leg and was going home. The worker confirmed that he could not recall saying to the manager that he had the pain for awhile or that the pain was not related to work.

The worker stated that although he usually travels to and from work by bus, he left work by taxi because he felt he could not walk to the bus stop. That evening his ankle and leg were very painful, worse than earlier in the day at work. The worker stated he saw his doctor the next day and described the work he had been doing and the pain he had in his leg. The doctor provided him with a sick note and completed an accident report. The worker confirmed he provided the doctor’s note to the employer by text message.

The worker advisor made a submission to the panel outlining that the evidence supports that the worker was injured on May 30, 2019 as a result of the pulling and stretching required to move the heavy loads into position in the trailers he worked on that day. The evidence confirms that the worker reported the injury to his employer on a timely basis and sought medical treatment soon thereafter. The worker advisor argued that the worker’s reports are consistent in the basic facts and he explained the circumstances and mechanism of injury as best he was able, although the worker’s description may have been limited by his language skills.

The worker advisor provided materials to the panel in advance of the hearing outlining the mechanics of development of a shin splint injury, as well as materials describing the ergonomics of manual material handling and occupational safety requirements for use of a handcart such as a pallet jack. With respect to the mechanism of injury, the worker advisor directed the panel’s attention to the ergonomics manual materials and shin splints materials, noting that the worker’s mechanism of injury is consistent with the development of shin splints. In moving the heavy pallets of materials over the course of the day on May 30, 2019, the worker applied substantial and excessive force to his foot flexors and was injured due to over-exertion.

Further, the worker advisor referenced the medical reporting noting that the worker’s clinical presentation was consistent with a diagnosis of shin splints and that the treatment plan for rest and application of heat was appropriate for that diagnosis. The worker’s condition slowly improved, and his symptoms reduced.

In sum, the worker’s position is that the evidence supports a finding that as a result of forceful and excessive exertion on May 30, 2019 as he undertook a significant increase in his work duties, the worker experienced an over-exertion injury that he appropriately reported to his employer and for which he sought medical attention. The evidence supports a finding that the worker was injured in doing a “thing that is done and the doing of which arises out of, and in the course of, employment” and therefore the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for determination on this claim is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker was injured because of an accident that occurred 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 panel noted that the Review Office decision was based in part upon inconsistencies in the worker’s reporting of the accident, stating that the worker “...doesn’t seem to know what occurred or when exactly his difficulties began.” The WCB adjudicator also referenced the worker’s “inconsistencies” in the decision letter of June 21, 2019. The worker required the assistance of an interpreter in the appeal hearing, and the panel noted that no such assistance was provided to the worker by the WCB in gathering information from the worker. While the worker may not have requested such assistance of the WCB and may not have been aware of the option to do so, it was evident to the appeal panel that the worker did benefit from the support of a translator in the course of the hearing. We cannot help but wonder if the “inconsistencies” identified by the WCB might be attributable in part, at least to limitations in the worker’s language abilities.

The panel found the worker’s evidence provided in the hearing to support the information available in the file. There is ample evidence before us of the nature and kind of duties the worker undertook on May 30, 2019 and we acknowledge that this was physically demanding work.

The question for determination, however, is whether or not the duties undertaken could have caused and resulted in the medical findings and diagnosis. In the absence of a specific incident of injury and where there is an allegation that the worker was injured as a result of participating in repetitive duties, the evidence must support, on the standard of a balance of probabilities, that the injury is the result of the activity. The worker’s position is that the evidence supports that finding and states that the symptoms the worker experienced beginning on May 30, 2019 are sufficient to establish that link.

The medical reporting on file indicates a possible diagnosis on May 31, 2019 of shin splints, based upon the worker’s description of symptoms and the clinical findings. On follow up on June 4, 2019 the worker’s physician again provided a diagnosis of shin splints. On June 9, 2019, the worker saw another physician who assessed him with right shin/ankle pain.

The panel sought an opinion from a WCB medical advisor as to whether the job duties described in the worker’s testimony to the appeal panel could have caused the injury diagnosed, being shin splints. In a memorandum dated October 2, 2020 the WCB orthopedic consultant provided background information to the panel on the development of this kind of injury, noting that it can result as a response to repetitive stress/loading. The orthopedic consultant noted that the degree of stress/loading required is considered in relation to the combined effect of three factors: magnitude of load; frequency of load; and duration of load. Each of these factors is considered in turn by the orthopedic consultant, with reference to the worker’s testimony as to his work duties on May 30, 2019 and the consultant concluded that the evidence does not support that the loads the worker was required to move with the hand pallet jack were of sufficient magnitude required to cause shin splints, nor that there was a substantive increase in frequency or significant increase in duration of activity that would account for the diagnosis. The orthopedic consultant concluded he could not “medically account for the diagnosis of shin splints of the right lower leg in relation to [the worker’s] work duties on May 30, 2019.

In response to this opinion, the worker advisor provided a further written submission dated October 27, 2020 setting out the worker’s position that “Regardless of the diagnosis, the worker suffered an injury resulting from his workplace duties....In the current case, the worker’s sudden onset of symptoms after the accident shows, on the balance of probabilities, that an injury occurred as a result of the accident.”

The panel considered the medical findings and opinion of the WCB medical advisor in light of the worker’s evidence and the submissions of his representative, and we are unable to conclude that the events of May 30, 2019 could have resulted in the injury to worker. On the standard of a balance of probabilities, we find that the worker was not injured as a result of an accident arising out of and in the course of his employment. Therefore, the claim is not acceptable.

The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of December, 2020