The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A videoconference hearing was held on February 7, 2022 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 May 24, 2019, reporting an injury to her left ankle that occurred at work on May 23, 2019. The worker described:

…I didn't trip nor slip on anything, but as I was walking I guess I twisted it somehow, it could have been from the patio, but unsure. 

It started aching and I was limping at the end of my shift. 

And it swelled overnight.

The employer also submitted an Employer Injury Report to the WCB on May 24, 2019, indicating the worker did not know how she injured her left ankle and that the details were unknown.

On May 24, 2019, the worker attended an initial physiotherapy assessment. The worker described her left ankle swelling, difficulty walking and maneuvering stairs, limping while weight-bearing beginning part way through her shift on May 23, 2019. The worker reported being unsure how her ankle injury happened but possibly "…rolled it on uneven patio surface." The physiotherapist noted a positive medial stress test and local swelling/tenderness to the worker's left medial collateral ligament. The physiotherapist diagnosed the worker with a grade 2 medial ankle sprain and recommended she use an ankle brace and remain off work until May 28, 2019.

The WCB contacted the worker on May 28, 2019 to discuss her claim. The worker advised that approximately half way through her shift on May 23, 2019, while she was walking, her left ankle started to bother her. The worker confirmed she did not trip or slip on anything and there was no hazard on the employer's premises. The worker further stated that her ankle just started hurting and she was not sure why. The WCB advised the worker that in the absence of a hazard, a workplace accident had not been established and her claim was not acceptable.

On June 5, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker provided a chronology of the events of the workplace accident and noted she attended an appointment with a sports medicine physician on May 29, 2019. The worker advised that an x-ray taken at that time indicated torn ligaments and she was told to remain off work for two to three weeks in a walking boot.

Review Office subsequently obtained a copy of the May 29, 2019 chart note from the worker's sports medicine physician, which indicated that the worker reported rolling her left ankle on a wood patio but did not fall. It was noted that the worker reported pain in the medial aspect of the left ankle, a small amount of swelling and an aching pain at rest which increased with weight-bearing. The sports medicine physician diagnosed the worker with a strain to her medial ankle and recommended two weeks off work.

On June 10, 2019, the WCB received a copy of the June 7, 2019 report from the worker's treating sports medicine physician, in which the physician noted the worker still had pain in the Lisfranc joint and lateral ankle with no swelling or redness noted. The sports medicine physician recommended the worker continue with physiotherapy and provided restrictions. In the report of a follow-up appointment on June 18, 2019, the treating sports medicine physician noted that the worker could return to work on a trial basis and might need shorter shifts.

On July 30, 2019, Review Office contacted the worker to gather further information. Review Office noted that the May 29, 2019 chart note from the treating sports medicine physician indicated the worker had been seen by her family physician on May 27, 2019, and requested contact information for the physician so they could request a report for that date. The worker provided the contact information but could not recall having attended an appointment on that date.

On July 31, 2019, Review Office spoke with the family physician's office and was advised that the worker attended an appointment on May 27, 2019, but that the appointment was for a non-compensable health issue. It was noted there was "a small mention of a sprained left ankle on May 16", of the worker having attended for physiotherapy, having a brace and returning to work the following day, and that there was no documentation regarding a mechanism of injury.

On August 2, 2019, Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the evidence on file which noted the worker could not describe a specific mechanism of injury or identify a hazard on the employer's premises that caused the injury to her left ankle. Review Office concluded that the evidence did not support that the worker had an accident arising out of or in the course of her employment, and that they were unable to relate her injury to her employment.

On April 21, 2020, the worker's representative provided photographs of the employer's premises, contact information and statements from four witnesses and a co-worker, information on lighting, and an October 21, 2019 letter and May 27, 2019 chart note from the worker's treating family physician, and requested further consideration of the worker's claim. The representative submitted that there were several hazards at the employer's premises on May 23, 2019, including an increase in the worker's workload and the patio having recently opened for the season. The representative submitted that the witness statements noted that the worker was the only person working in the patio area on May 23, 2019 and it was extremely busy that day, such that the worker had to walk faster than usual. The representative further noted that the photographs showed a large patio with obstacles on an uneven slatted wood surface. The representative also noted the worker was required to move from the outdoor patio area in the sun, to an indoor area, with the lighting areas changing and the worker "…struggled with light/dark adaption." The representative further submitted that the worker was consistent in her reporting of the incident to her treating healthcare providers, and in reporting the progression of her symptoms. On June 8, 2020, the employer's representative provided a submission in response, and on June 29, 2020, the worker's representative responded to that submission.

On June 30, 2020, Review Office confirmed their previous decision that the worker's claim was not acceptable. Review Office relied on the evidence on the worker's file in close proximity to the workplace accident and found that the worker did not sustain an injury arising out of or in the course of her employment.

On September 20, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, 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.

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, 

(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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:

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. 

… 

While 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.

Worker's Position

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 her representative, and the worker and her representative responded to questions from the panel.

The worker's position was that the evidence supports she was injured in a workplace accident, and her claim should be acceptable.

The worker's representative submitted that there were multiple significant hazards in the workplace on May 23, 2019. Among these was the fact that this was the first time the patio was open for the season. Also, the surface of the patio was uneven, with gouges and cracks which were significant enough for the worker to roll or twist her ankle, and the workplace, including the patio, was very busy that day, more so than usual.

In her evidence at the hearing, the worker confirmed that May 23 was a very busy day and she was running around all day serving customers. She noted that it was the first nice day on the patio, and a group of customers arrived around 4:00 p.m. and moved the tables on the patio together which made it more awkward and harder to serve them. She described how she had to reach and bend over the tables to serve the customers, while holding a heavy tray, and said that when she put her foot down she twisted or rolled her ankle. She said it hurt a little, but she did not have time to sit because they were so busy, so she pushed through. The worker stated that even more people arrived later on for a special afternoon show, which was of an unusual nature, and resulted in the dance floor becoming very slippery.

The worker's representative submitted that the obligations and conditions of the worker's employment contributed substantially to her accident. The representative submitted that it was reasonable the worker would not have paid attention to or recalled the precise moment she was injured when she initially reported her injury, as the initial injury seemed insignificant at the time. The accident occurred during the afternoon rush hour, where the worker tweaked her ankle, but she did not have time to stop and think or reflect on what had happened and had to push through. The worker's representative noted that in the service industry workers have those tweaks all the time. Then the events that followed were confusing and highly distracting, and resulted in the worker being exposed to more workplace hazards while she continued working, including strobe lighting, loud music and entertainment, and a slippery floor.

In response to a question from her representative, the worker explained that she was at work and very busy when the WCB first contacted her, and she "kind of brushed her off", thinking her ankle would get better and she did not need anything. The representative noted that the worker subsequently provided additional information, but the WCB chose not to gather further evidence after that. The representative submitted that had the WCB explored more and contacted witnesses, they might have had a fuller picture of what occurred closer to the date of the accident.

In conclusion, the worker's representative submitted that the worker arrived at work on May 23, 2019 with an intact ankle, and was capable of performing all of her job duties. She twisted or rolled her ankle while performing her work duties on the worker's premises, in an environment under the employer's control, and reported the accident to her co-worker the same day. She reported the injury to her employer, and identified the uneven patio surface as the cause of her injury within 24 hours of the accident.

The worker's representative therefore asked that the panel find that the evidence supported the worker's injury arose out of and in the course of employment and that her claim is acceptable.

Employer's Position

The employer was represented by an advocate and by its president. The advocate provided a written submission in advance of the hearing, and made an oral submission to the panel. The employer's president responded to questions from their advocate, and both the advocate and the president responded to questions from the panel.

The employer's position was that the worker's claim is not acceptable, and her appeal should be dismissed.

The employer's advocate submitted that the evidence supports the Review Office decisions of both August 2, 2019 and June 30, 2020, which determined that the claim is not acceptable. In her oral submission to the panel, the advocate reviewed the two Review Office decisions at length and adopted the findings in those decisions. The advocate also referred to additional information which they had provided in advance of the hearing as further supporting the Review Office's conclusions.

In summary, the advocate submitted that while a variety of hazards had been promoted by the worker's representative as apparent causes of the worker's injury, these apparent hazards, consisting of the worker working alone, a change in the worker's regular duties due to an increase in workload, momentary blindness caused by extremes in lighting, awkward use of patio doors, an uneven patio surface, and more recently an incident involving a slippery floor, had been shown to be either irrelevant or not of significant risk to have caused the worker's injury.

The employer's advocate further noted that in any event, the presence of a credible hazard alone does not necessarily mean that an incident and injury will occur. The advocate noted that a specific incident that leads directly to an injury would still be required to show cause and effect, and to establish that a personal injury arose out of and in the course of employment. The advocate submitted that in this case, there is an absence of a discrete, traumatic event which would adequately explain the reported injury.

The employer's advocate also submitted, with respect to the ankle sprain itself, that medical literature provided by the worker's representative indicated that this type of ankle injury typically involves very strenuous athletic activities, which is not consistent with the physical demands of the worker's regular job duties or with the action of reaching and bending over a table. The advocate noted that the literature also suggests that there is immediate pain when such a sprain occurs, which is similarly not consistent with the evidence in this case.

In conclusion, the employer's advocate submitted that the weight of evidence, on a balance of probabilities, does not support that the worker's left ankle sprain had its origin in the worker's employment. While the injury may have occurred in the course of employment, a specific work-related hazard and subsequent incident that immediately preceded the injury had not been credibly identified and therefore did not satisfy the requirement that the injury arose out of the employment as required under the Act.

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 left ankle injury as a result of an accident arising out of and in the course of her employment. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel is not satisfied that there was a work-related cause for the worker's left ankle difficulties.

The panel finds that there are a large number of gaps and discrepancies in the information on this claim. The panel finds that the worker's description of her injury in close proximity to the date of workplace incident was very vague and ambiguous, but became more specific after her claim was disallowed and time went on.

In her Worker Incident Report, the worker thus noted that she "didn't trip nor slip on anything, but as I was walking I guess I twisted it somehow…" Other early reports similarly indicate that the worker reported not knowing how she injured her ankle. However, on May 29, 2019, after her claim was denied, the worker reported to her sports medicine physician that she rolled her left ankle "on a wood patio".

At the hearing before us, the worker described for the first time a specific incident where she bent over the table to serve customers, while holding a heavy tray, and when she put her foot down she twisted and rolled her ankle. While previously she had been unable to relate the onset of her symptoms to a specific time, the worker also indicated that this incident happened around 4:00 p.m.

The panel notes that there was a lack of any explanation as to why the worker had not identified this particular incident earlier as the onset or cause of her difficulties. The panel finds that the evidence does not support, on a balance of probabilities, that the worker suffered such an accident or injury as described.

While the worker and her representative also referred to several potential hazards in the workplace, the panel is unable to draw a connection between any of those potential hazards and a workplace incident or injury.

It was argued in this regard that the worker was particularly busy on May 23, 2019. The panel accepts that the worker works hard and was very busy at work that day, but is not satisfied that the evidence shows she was significantly busier than usual. The panel notes that sales information provided by the employer for Thursdays in May 2018 and May 2019 did not indicate a significant difference between the sales on May 23, 2019 and sales on other Thursdays in May 2018 and May 2019. While there was some disagreement at the hearing as to what proportion of those sales were attributable to the worker, there was a lack of evidence that the worker's sales were higher on May 23, 2019 as compared to other Thursdays.

The panel is also not satisfied that there was a significant change in the worker's duties which caused or contributed to her injury. The panel notes that while there is reference to the patio opening up, this was seasonal and the worker indicated at the hearing that she had worked on the patio before. While she could not say how long she had worked on the patio, she did state that she had worked there the previous year at least.

Reference was made to uneven surfaces and cracks in the wood on the patio, but a link or relationship between those defects or potential hazards and the onset of the worker's ankle difficulties was missing. In response to questions from the panel and with reference to photographs of the deck, the worker indicated the general area on the deck where she had said she was leaning over and rolled her ankle, but there was nothing to indicate that any crack in that area of the patio was connected to her ankle difficulties or the onset of her symptoms.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a left ankle injury as a result of an accident arising out of and in the course of her employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of April, 2022