Decision #92/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on March 9, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On August 31, 2018, the WCB received a Physiotherapy Initial Assessment report referencing an initial assessment of the worker on August 24, 2018 for a right ankle injury. The description of the incident was said to be "misstepped on ladder" and the date of incident was listed as "2018," with a notation that the worker was "checking his calendar."
On September 12, 2018, the employer filed an Employer's Accident Report indicating the worker injured his right ankle when he slipped on a ladder at work on July 11, 2018.
The WCB received a Doctor First Report on September 18, 2018, with attached chart notes of a visit by the worker to a minor injury clinic on July 27, 2018. The chart notes indicated the worker was complaining of right foot pain for approximately six months, with pain in the back of the heel, more in the morning and after a long day, and no history of injury. It was noted that the worker reported the pain started when taking his rubber boots off with the other foot, and that it had recently increased. On examination, the treating physician noted mild tenderness on the worker's Achilles tendon at insertion and a single leg heel raise was painful, but the worker had a normal neurovascular exam and normal range of motion. The worker was diagnosed with "Achilles tendinitis insertional" and stretching exercises, physiotherapy and heel lifts were recommended.
On August 22, 2018, the worker underwent an MRI of his right ankle – Achilles which showed, in part, "Distal Achilles tendinosis with a tiny low grade partial intrasubstance tear. Enthesopathy at the distal Achilles tendon" and "Small volume of fluid within the retrocalcaneal bursa, likely reflecting mild bursitis…" A previous MRI of the worker's right foot was noted to have taken place on January 12, 2013.
On September 20, 2018, a WCB adjudicator called the worker to discuss his claim. The adjudicator noted that the worker indicated he had a previous injury to his heel in June 2016 but the injury had resolved. He advised that he slipped going down a ramp on June 11, 2018 and "…tweaked the backside of his right heel." The worker said he treated his heel with a topical anti-inflammatory medication and it was 100% when he went to work on July 11, 2018. He advised that he was climbing down a ladder at work that day and his foot slipped off the rung and went down to the next rung; his foot went straight back and all his weight went onto his heel.
The worker further advised the adjudicator that he attended a follow-up appointment with the minor injury clinic physician on September 14, 2018 and was referred to an orthopedic surgeon. The worker confirmed he continued to work, but said he was performing light duties in the office. On September 24, 2018, the worker provided the WCB with a chronology of his injury and the medical treatment he had sought.
The WCB gathered additional medical information, including a copy of the worker's January 12, 2013 MRI, chart notes from his treating physiotherapist and a report from his family physician. On October 19, 2018, the WCB adjudicator spoke with the employer's assistant chief administrative officer (ACAO), who recalled the worker limping around the office and that the worker talked about hurting himself on the job site in July 2018 and thought he might have just tweaked something. On October 26, 2018, the adjudicator spoke with the employer's chief administrative officer (CAO), who indicated he was on holidays from July 4 to 19, 2018. The CAO further indicated that the worker had mentioned in passing that he hurt his foot, but he did not recall the worker mentioning how he hurt it.
On October 26, 2018, the WCB adjudicator advised the worker that his claim was disallowed. The adjudicator found that a review of the medical information suggested the worker had a "…long standing history of right heel difficulties…" and that given the information on file, including the inconsistent medical history and the delay in reporting the injury and seeking medical treatment, a relationship could not be established between the worker's current symptoms and an accident occurring at work.
On February 25, 2019, the worker requested that Review Office reconsider the adjudicator's decision. The worker provided a history of his conversations with the employer and the treatment of his injury, and noted he continued to have ongoing difficulties with his right heel.
On March 18, 2019, Review Office determined that the worker's claim was not acceptable. Review Office found that the worker delayed in seeking medical treatment until July 27, 2018, and did not relate his injury on July 27, 2018 to a workplace accident, but to an incident approximately six months earlier where he was taking off his boots. Review Office noted the worker indicated his pain had recently increased, but did not indicate this was work-related. It was noted that the treating physician also documented the worker reported no history of injury, but that there was more pain in the mornings and after a long day.
Review Office further noted that the right heel difficulties were not associated with the July 11, 2018 workplace accident until later on in the worker's claim. Review Office found it unlikely the worker would have attended for medical treatment on July 27, 2018 and not advised the physician he was hurt in a specific accident at work on July 11, 2018. Review Office therefore concluded that they were unable to determine the worker suffered an accident which arose out of or in the course of his employment.
On July 14, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for March 9, 2021.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. The worker provided a written response to that information through his representative on May 21, 2021, and on May 27, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an 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,
(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.
The worker was represented by a worker advisor, who provided two written submissions in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that there was sufficient evidence to establish he suffered personal injury by "accident" in accordance with subsection 1(1) of the Act, and his appeal should be granted.
The worker's representative noted that the description of the accident which the worker provided to the WCB matched the description provided by the employer, and was consistent with what was noted by the worker's physiotherapist and his family physician. It was submitted that this consistency in reporting was strong evidence in support of the worker's position.
The worker's representative further noted that the worker informed the adjudicator he had reported his right ankle injury to the employer's ACAO and its chief financial officer (CFO). The representative submitted it was telling that when contacted by the adjudicator, two representatives of the employer, the ACAO and CAO, distinctly recalled seeing the worker limping or having difficulty walking in July 2018. The representative submitted that if the worker had been limping or having difficulty walking prior to July 11, 2018, one would have expected the employer's representatives would have recalled observing such difficulties.
The worker's representative also submitted that there were significant failures or omissions in the WCB's investigation of the worker's claim, including that the WCB did not contact the employer's CFO, did not inquire as to whether the employer made any contemporaneous notes about the worker reporting an accident, and did not contact any of the other co-workers the worker was working with during July 2018.
The worker's representative referred to handwritten notes written by the CAO which they had provided in advance of the hearing. It was submitted that these notes reflected the CAO's conversation with the adjudicator on October 26, 2018, and included a notation which was not referred to in the adjudicator's notes of that conversation, indicating the CAO advised the adjudicator that the worker had told him he injured his foot while performing an inspection. The representative submitted that this was further evidence that the worker consistently reported a workplace accident to the employer and his co-workers.
It was submitted that to make matters worse, Review Office itself noted there had been minimal questioning and information gathering, yet went on to dismiss the worker's appeal without pursuing any further investigation. The worker's representative submitted that as a result, to the extent uncertainty might arise from any such omissions, the worker should receive the benefit of the doubt.
The worker's representative also submitted that the information in the report from the worker's July 27, 2018 medical appointment was not particularly relevant to the issue of claim acceptance, given the worker reported the accident to his employer on or about the same day and the employer's representatives observed him limping in July 2018. The representative further submitted that if the information in that report was considered to be relevant, the worker's evidence was that he told both the triage nurse and the physician about the July 2018 accident, but they did not document this appropriately.
In conclusion, the worker's representative submitted that taking into consideration all of the above factors, there was enough evidence to find that the worker's claim is acceptable and to grant his appeal.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the evidence establishes, 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.
In arriving at our decision, the panel places weight on the September 18, 2018 report of the worker's attendance at the minor injury clinic on July 27, 2018. The worker confirmed at the hearing that this was the first time he sought medical attention after his July 11, 2018 incident. Yet there is no reference in the chart notes from that visit to a workplace accident having occurred approximately two weeks earlier. Rather, the presenting problem as outlined in the nursing assessment portion of those notes is "Intermittant [sic] pain to right heel" for about six months, "Started when taking rubber boots off with other foot. Recently, pain has increased…" The physician activity section further states, in part, "…here re right foot pain since 6 months ago; pain in back of heel more in morning and after a long day; no HX [history] of injury…"
While it was argued that the worker told the nurse and physician about the July 11, 2018 accident and that the information was not appropriately documented, the panel is unable to accept that argument. In response to questions from his representative at the hearing, the worker stated that he "…had the same conversation with the doctor as I had with the nurse, telling them that I slipped on the ladder going down, hurt myself…" The panel notes, however, that in response to a previous question from his representative as to whether he recalled the conversations with the doctor and nurse that day, the worker had stated "To an extent with the doctor, yes. With the nurse, no." The worker added that "They were basically told that – they asked why I was here and I let them know why I was there. I had told them I had slipped on a ladder, I had hurt my foot, I bent it backwards…and she wrote that all down."
The panel finds it unlikely that both the nurse and the treating physician would have failed to note that this was a workplace injury or to document a description of a July 11, 2018 or workplace incident if it had been reported to them on July 27, 2018. The panel notes that in this instance, it is not simply a matter of whether something was left out or not stated in the report, but of what was actually documented at the time, where the triage nurse and treating physician each noted that the worker was reporting pain for six months and the physician specifically noted that there was no history of injury.
The worker indicated at the hearing that he saw the treating physician three or four times after July 27, 2018, before finally being sent for an MRI. Following the hearing, the panel obtained chart notes from the treating physician for this period of time. The panel notes that in the chart notes from an August 20, 2018 visit, the treating physician reported that the worker was complaining of right heel and back of ankle pain "since 2 weeks ago" which was not improving, and again specifically noted that the worker "can not recall hx [history] of direct trauma."
The panel also notes that the initial report from the worker's physiotherapist which was submitted on August 31, 2018 refers to the worker's description of the incident or injury as "mis-stepped on ladder…" and the date of incident as 2018. The date of the initial assessment for that injury was identified on that initial report to the WCB as August 24, 2018, while the evidence shows that by that time the worker had been seen and treated by the physiotherapist on four occasions since July 11, 2018.
Chart notes were obtained from the physiotherapist following the hearing relating to those previous attendances. The panel notes that while there is a reference in the chart notes of a visit on August 9, 2018 to the worker "…having stretched on ladder a few mos ago," there is no indication that this occurred at work and no apparent reference in this or the other chart notes there having been a workplace accident prior to August 24, 2018.
The panel also questioned the worker at the hearing with respect to his position that further information could or should have been gathered, including from the employer's CFO and co-workers. The panel notes that when the worker was asked at the hearing whether he had any direct conversation with the CFO about this incident, he responded "Only in September when she filed the report to WCB." Asked whether he had told anybody else in the office about the accident, the worker said "Not really, no," then went on to state that "People noticed me limping around and said, you know, what's going on and I would tell them. A lot of the [clients] that are out there working wondered why I would not walk up a ramp or go up the ladder anymore, as of that July when that accident happened. And they were informed…I hurt myself and I'm not climbing a ladder."
The worker further indicated at the hearing that maybe a day or so after the incident, he mentioned to the owner of the property that he had slipped on the ladder, "and that's basically all I said to him." Asked whether he would have mentioned the incident of his foot slipping off the ladder in his report to the homeowner, he said he did not know, he would have to pull the file, adding "It might be in the file…whether I put it in there or not I'm not sure, if it was just a physical, like just a comment made between him and I."
In a May 17, 2021 response to the additional information obtained following the hearing, the worker submitted that the one constant throughout was that "I have always stated and maintain that this injury was caused or enhanced when I slipped on a rung climbing down a ladder…at work." The panel acknowledges the worker's position, but based on our review of all of the evidence, on file and as presented at the hearing and subsequently at the panel's request, the panel is not satisfied that the evidence supports that the worker's right ankle or foot difficulties were causally related to or enhanced by a workplace accident.
Based on the foregoing, the panel 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. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
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 21st day of July, 2021