The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on November 4, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on July 6, 2020 reporting injury to their right lower leg that occurred at work on September 6, 2019. The worker reported that on September 6, 2019, while attending an out of province training program and in the shower at the start of the day, there was "…suddenly blood coming out of my legs, could not control the bleeding. Called the reception at the residency and called paramedics. They bandaged the leg to suspend bleeding, paramedics came and took me to local hospital and emergency room. Medical staff put dressing on it, and was told that blood vessel bursted (sic) and there's tiny small hole."

The Employer’s Accident Report described that the worker’s supervisor was notified by the hotel at 7:30 a.m. that an ambulance was dispatched to the worker’s room. The supervisor immediately drove there and walked into the scene where commissionaires were attending to the worker’s right leg. There was blood all over the room and the worker explained that a blood vessel on the back of their calf ruptured while they were in the shower.

The Emergency/Ambulatory Care Clinical Record from September 6, 2019 noted the chief complaint as a laceration and right calf wound. A mole on the back of the worker's right calf was noted and the worker denied any trauma to that area. The worker was treated at the hospital and released, and then returned to the employer’s premises to complete the training.

On January 14, 2021, the WCB advised the worker that upon review of the file, the claim was not acceptable. Although the worker was on the employer's premises when the September 6, 2019 incident occurred, the worker was not performing any duties related to their employment at the time.

The worker requested reconsideration of the WCB's decision to Review Office on January 18, 2021. In their submission, the worker noted their belief the injury occurred in the days prior to September 6, 2019 during the simulated ground fighting training and indicated they felt a foreign object in the area where their leg had bled which they believed caused a pinhole bleed from a fragment dislodging.

On February 23, 2021, Review Office determined the worker's claim was not acceptable, concluding that based on the medical information on file, the injury to the worker's right calf arose out of a personal act, and not out of or in the course of employment.

The worker filed an appeal with the Appeal Commission on March 18, 2021. A videoconference hearing took place on November 4, 2021.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation. "Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act"). 

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under that Act and the policies established by the WCB's Board of Directors. 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. Section 4(5) of the Act creates a presumption that where an accident arises out of the employment, it is presumed that it occurred in the course of the employment, where the accident occurs in the course of the employment, it is presumed that it arose out of the employment, unless, in either case, the contrary is proven.

The WCB has established Policy 40.44.05, Arising Out of and in the Course of Employment (the “Policy”) with respect to determining whether an injury is the result of an accident arising out of and in the course of employment. The Policy sets out that:

“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.”

The Policy goes on to note that when workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises. Further, workers on special assignments including training exercises are deemed to be in the course of their employment while directly or indirectly involved in activities under the control and direction of the employer, but those involved in personal, or leisure activities are not considered to be in the course of their employment.

Worker’s Position

The worker appeared in the hearing and provided a submission to the panel on their own behalf. The worker also offered testimony in answer to questions posed by members of the appeal panel.

The worker’s position is that as a result of the training duties they participated in during the days leading up to September 6, 2019, they sustained injury to their lower right leg which caused the episode of bleeding that morning, first noted on exiting the shower. The worker described the events of the date of injury as an extraordinary occurrence, noting they had never experienced anything like that before or since. The worker confirmed they completed a health and safety report for the supervisor on site.

The worker told the panel that although at the time of the incident they were preparing for their workday, they were doing so in the employer’s premises as this was during a remote training exercise week. The training exercises that week included spending the previous day outdoors at a shooting range as well as self-defense training earlier in the week that included wrestling and gym training. On further questioning by panel members, the worker described their daily activities during that week in significant detail.

The worker recalled feeling a lump on the back of their right calf the prior evening and assuming it was caused by an insect bite or pimple. They also recalled that a paramedic at the scene commented that maybe a mole had dislodged. There was no indication from the emergency room treatment as to what may have caused the bleeding. The worker could not recall noting a mole at that location previously but supposed that the physical activity of the week might have caused a mole to dislodge if it was there.

The worker noted that they subsequently became aware of other training issues that caused them to wonder whether the injury could have resulted from their time spent on the firing range the previous day, suggesting it was feasible that a fragmented or ricocheted piece of ammunition lodged in their leg and caused the bleeding the next day. On questioning by panel members, the worker confirmed that they were dressed in full outdoor shooting gear during the exercises including wearing long pants. They did not notice any damage to their pant leg on the day of the training but that the clothing was disposed of when the room was cleaned.

In sum, the worker’s position is that the injury sustained on September 6, 2019 more likely than not was caused by or the result of the employment training activities undertaken in the days preceding the incident, and therefore, the claim should be accepted for the injury arising out of and in the course of their employment.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for determination on this appeal is whether the worker’s claim is acceptable. For the panel to grant the worker’s appeal, we would have to find that the worker was injured as a result of an accident arising out of and in the course of the worker’s employment. As outlined in the reasons that follow, that panel was not able to make such a finding and the worker’s appeal is therefore denied.

The worker, in the course of making their submission, referenced some labour issues that they became aware of after the incident occurred. As these issues are outside the jurisdiction of this tribunal, the panel has not addressed them in these reasons.

There is evidence before the panel of an injury that occurred while the worker was away on employment training and lodging in employer-provided premises. The worker first noted bleeding on the morning of September 6, 2019 while taking a shower in preparation for the day. The Triage Assessment form from the emergency department where the worker was treated indicated the worker’s report on the date of the accident that “Small mole noted by EHS to area, bleeding controled (sic) at that time. EHS palpated to provoke bleeding, only minor oozing of blood noted. No obvious peri-varicose veins.” In another part of the same record, the history recorded indicates that the emergency personnel on the scene stated it “looked like a mole on back of calf” and that the worker denied any trauma.

In the worker’s first report to the WCB, provided July 6, 2020, they indicated the possibility that the blood vessel in their leg ruptured “…from training moves or ricochet from bullets, not sure what really happened.” The panel noted that the worker first reported the claim to the WCB some 10 months after the incident occurred, and by that time had puzzled over what happened for quite some time. The worker’s testimony and submission outlined other possible causes for the ruptured blood vessel, including that a fragment of ammunition from the shooting range may have lodged in their leg during the course of the day prior to the incident, or that a mole may have dislodged through the physical exercises they engaged in earlier in the week.

There is no evidence before the panel as to what actually caused the worker’s leg bleed. There is speculation in the initial medical reporting that suggests a dislodged mole may have caused the rupture but there is no information or evidence to confirm whether this is the case, or that if so, whether there is any causal linked to the worker’s employment or any hazard of that employment.

The panel found the worker to be a credible witness and capable advocate on their own behalf but noted that even the worker acknowledged their inability to provide an explanation for how the injury was sustained. While the explanations offered by the worker as to potential work-related causes of the injury are remotely possible, they remain speculative in the absence of any supporting evidence.

Having considered the worker’s testimony and the file evidence, the panel is satisfied, on a standard of a balance of probabilities, that there is not sufficient evidence to establish that any workplace hazard or fortuitous event occasioned by a physical or natural cause arising out of and in the course of the worker’s employment caused the injury sustained on September 6, 2019. We are therefore unable to determine that the injury sustained by the worker was the result of an accident and find that the worker’s claim is not acceptable. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of December, 2021