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 hearing was held on September 28, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker provided a Worker Incident Report to the WCB on December 8, 2021, reporting an injury to his right knee that occurred while working at a remote location on September 13, 2021. The worker reported he was working in a pit with a steep slope and an 8 to 9 foot drop, and was carrying equipment and tools in and out of the pit throughout the day. The worker said he felt a pull in his knee in the morning when he was "dropping from the top to the bottom into the pit." The worker advised he mentioned the injury to his supervisor and continued working. The worker reported he had trouble sleeping after that and swelling in his knee, and he limped around camp doing modified duties and returned home on September 20, 2021.

The employer provided the WCB with an Employer's Accident Report on December 8, 2021, in which they noted: "No information provided to company safety department by employee."

On December 14, 2021, the WCB contacted the worker to discuss his claim. The worker confirmed the area he was working in did not have proper access, that there was a very steep, sandy slope and he felt a pop while dropping from the top to the bottom into the pit carrying equipment. He confirmed he mentioned the incident to his supervisor and continued working. He said he took it easy and performed modified duties until he could return home on September 20, 2021. The worker advised he had mentioned the incident to 2 co-workers, in addition to the supervisor, and provided the WCB with the names of these 3 individuals. He noted his knee pain was currently 7 out of 10 and his knee was swollen, with the pain on the inside and back of his knee. The worker further noted his knee was stiff in the morning, and he limped when he had to climb stairs. The worker provided the WCB with dates he had sought medical treatment.

The WCB requested and received medical reports from the worker's treating physician. In chart notes dated September 21, 2021, the physician noted the worker described experiencing right knee pain after slipping while working outside and having difficulty walking on his knee since then. The worker reported the knee was gradually getting better, but was still swollen and painful and was causing poor posture. On examination, the physician noted the worker was not limping, but his knee was swollen, there was crepitus, a clicking sound, laterally slight joint line pain and restricted movement both in flexion and extension. An x-ray of the right knee taken that day was noted to be normal, and the physician diagnosed the worker with a right knee sprain.

In further chart notes dated September 29, 2021, the worker's treating physician noted the worker's "Right knee looks normal no acute finding, and not inflamed walking normally on it," and diagnosed "Right knee pain cause unknown." In chart notes dated November 30, 2021, the physician indicated "Right knee looks normal no localized tenderness or deformity slightly puffy on the medial collateral area" and again diagnosed "Right knee pain cause unknown."

The WCB also received a report from a physiotherapist of an initial physiotherapy assessment on December 14, 2021, at which the worker described having stepped down into an 8 foot deep excavation on September 13, 2021, where his right knee hyperextended and he experienced increasing pain over the day. The physiotherapist provided a diagnosis of a Grade 2 right MCL sprain – right meniscus sprain.

On January 5, 2022, the WCB discussed the worker's claim with the employer, who confirmed they were not aware of the worker's injury as nothing was reported to them. The employer further confirmed they would have had modified duties available but the worker was laid off as of September 20, 2021 and the contract was over after this job.

The WCB also spoke with the worker's former supervisor on January 5, 2022. The supervisor advised that he remembered the worker getting injured and filling out an incident report with him and the project manager. The supervisor further advised that he noticed the worker was having difficulties with his knee and he tried to do modified duties until he left on September 20, 2021. The supervisor also indicated that both project managers who were on site were aware of the worker's injury.

On January 7, 2022, the employer provided the WCB with contact information for the project managers the supervisor had said were on site. The employer also noted concerns they had with the worker's claim. The WCB spoke with the project managers that same day, both of whom advised that they were not aware the worker had injured himself at work and did not recall an incident report being filled out or submitted for an injury to the worker.

On January 13, 2022, the WCB's Compensation Services advised the worker that they had determined his claim was not acceptable. Compensation Services noted that given the length of time between the incident and the worker's reporting it to the WCB, the missing injury report to the employer, the lack of confirmation from the project managers on site, and the medical information received from the treating physician, they could not establish that the worker sustained an injury arising out of and in the course of his employment.

On February 3, 2022, the worker requested that Review Office reconsider Compensation Services' decision and provided a detailed submission describing his job duties on and around September 13, 2021, as well as copies of his log entries from September 11 to 19, 2021. On February 4, 2022, Review Office returned the worker's file to Compensation Services to gather further medical information and to contact other witnesses identified by the worker.

On February 7, 2022, Compensation Services contacted another of the worker's co-workers. The co-worker advised he was aware the worker was limping a little bit, and said that when he approached the worker, he said his knee was sore and that this was due to wear and tear. The co-worker did not remember if the worker mentioned he had an injury.

On February 15, 2022, Compensation Services contacted a further co-worker, who advised the worker had complained of a sore knee. The co-worker remembered the worker attempted to climb down the hill at the jobsite and had commented that "that did not feel good." The co-worker confirmed the worker continued to work but started to slow down, was limping and was using a tensor bandage on his knee.

Compensation Services also made several attempts to contact the worker's treating physician in February 2022 for clarification with respect to the submitted reports, but did not receive any response from the physician. On February 28, 2022, Compensation Services advised the worker that their January 13, 2022 decision remained unchanged.

In submissions filed March 10 and 17, 2022, the worker again requested that Review Office reconsider Compensation Services' decision. The worker provided further details regarding the job site and his work injury, as well as medical information from his treating physician in support of his request. On May 9, 2022, the employer provided a submission in support of Compensation Services' decision, and on May 25, 2022, the worker provided a response to that submission.

On May 26, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found there were inconsistencies in the worker's description of the workplace accident. Review Office further found that while co-workers confirmed the worker may have been limping at work, none of them witnessed the incident or could confirm an accident occurred or that the worker worked modified duties. Review Office recognized the worker may have been experiencing right knee symptoms and difficulties while at work, but found the evidence on file did not support he sustained an injury arising out of or in the course of his employment.

On June 7, 2022, the worker appealed the Review Office decision to the Appeal Commission and a hearing was arranged.

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 worker for comment. On April 27, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies of the WCB's Board of Directors. The provisions of the Act that were in effect as at the date of the September 2021 incident are applicable.

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.

Worker's Position

The worker was self-represented and provided several written submissions in advance of the hearing. The worker made an oral submission at the hearing and responded to questions from the panel. The worker also provided written comments in response to the additional information requested and received by the panel subsequent to the hearing of the appeal.

The worker's position was that he suffered a right knee injury in the performance of his job duties and his claim is acceptable.

The worker described the incident, noting that he got hurt in the morning of September 11, 2021. He said he was taking his tools down into the pit when his right knee hit something on the ground and it buckled, bending the opposite way, and was very painful. He made it to the bottom and paused to gather himself and nurse his knee to get rid of the pain. The worker noted he was alone at the time, and used his shovel as a crutch to get out of the pit. He said he drove over to visit two co-workers who were working at a site less than a kilometre away, and told them he hurt his knee really badly.

The worker said his supervisor came to see him later and he told him he had hurt himself at the excavation. The supervisor indicated he would have to make a report, and returned later that afternoon to take his report. He said the supervisor stayed in his truck, that he told him exactly what had happened, and the supervisor said not to worry about it and it would be taken care of. He noted the supervisor said he handed an incident report in to the project managers. The worker stated that this is where the confusion is, that no one sent the report in to the employer's safety office or the WCB. The worker noted he had no control over the employer and did not know the report had not been sent in.

The worker said he stayed around the trailer site for three days after the incident, doing modified duties. He thought the employer would arrange for him to return home so he could get his knee checked, but that did not happen until September 20, 2021, and he continued doing lighter duties until then. He was having trouble dressing, his knee was swollen and there was a build-up of fluid. The swelling went down because he was staying around the trailer site, doing modified duties and looking out for his knee as well as he could, but he needed to home to get medical attention.

The worker said that when he first saw a doctor, on September 21, 2021, the doctor did not listen to him and provided a very bad report which failed to indicate how he was hurt and how serious his injury was. The worker said he tried to tell the doctor what had happened but the doctor thought he had slipped on a rock on flat ground, which was totally wrong, and that he was working and walking well. The worker submitted that the swelling had gone down somewhat by that time, as this was nine days after the incident, and of course the x-ray did not show anything was broken, as this was a hyperextension injury.

The worker stated that he did not have a health card at the time, as it had been cancelled due to a processing error, so he could not get a second opinion. He noted that his health card was not reactivated until December 2021, and he was unable to see his doctor again until January 2022.

The worker submitted that around the beginning of January 2022 he was finally able to locate his logbook "showing everything in detail of what I could remember" and he provided his log sheets to the WCB together with a diagram he drew of the entire work site.

In conclusion, the worker stated that he has gone through serious hardship since his incident, right from providing the incident report and being told not to worry, through his health card being cancelled and being unable to get further medical care, to his claim being turned down. The worker stated he was so happy he found the logbook "because it brought everything so fresh, and I drew these diagrams, and this is the way it was."

Employer's Position

The employer did not participate in the appeal.

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 an injury by accident arising out of and in the course of his employment.

Based on our review and consideration of all of the evidence and submissions which are before us, on file and as presented at the hearing and subsequently in response to requests from the panel, the panel is unable to find that the worker suffered an injury by accident arising out of and in the course of his employment as required under the Act.

In arriving at that conclusion, the panel finds that there are significant inconsistencies and contradictions in the information which is before us. With respect to the mechanism of injury or the injury itself, the panel notes that the worker referred in the Worker Incident Report to a pull in his knee when he was "dropping from the top to the bottom into the pit." The Physiotherapy Initial Report dated December 14, 2021 indicates that the worker's "R knee hyperextended." In a March 10, 2022 note to his treating physician, the worker referred to his knee having buckled and twisted. At the hearing, the worker stated that his knee "buckled on me, bending the opposite way;" that it "buckled back and jabbed."

There is also some confusion or inconsistency with respect to dates. Thus, while the earlier reports, including the Worker Incident Report, the doctor reports and employer report all refer to a date of incident of September 13, 2021, the worker confirmed at the hearing that the correct date should be September 11, 2021. The worker explained that he had not known the exact date of the incident because he did not have his daily log sheets and was only able to determine that it was September 11 when he was moving in January 2022 and found his logbook. It is also unclear from the evidence as to when the worker may have reported the injury to his supervisor, where it was noted at various times that this was the day of the incident and at other times that it was the following day.

The worker has also indicated that he performed modified duties in the days following the workplace incident. The panel reviewed the log sheets or timesheets which the worker provided, including additional time sheets from prior to September 11, 2021 which were provided after the hearing, and is of the view that what was reported on the timesheets from September 7 through to 19, 2021 is more in the nature of regular than light or modified duties. When it was put to the worker that the duties as listed did not seem to be light duties, he insisted that they were light, noting he did as little as possible to aggravate his sore knee. In response to further questions, the worker stated he was not given modified duties by anyone else and "I did it myself." The worker also noted he was a lead hand, and explained that "I make sure these guys do proper work…I make sure things are done properly" and that "I tell them how to properly place the stuff, because they don't realize and plan ahead."

The worker confirmed that there were no witnesses to the incident, but noted there were various individuals who knew of his accident and injury and that it was obvious that he was limping. The panel recognizes that in speaking with the WCB case manager on January 5, 2022, the worker's supervisor indicated he remembered the worker getting injured and filling out an incident report. The panel notes, however, that the supervisor's account differs from that of the worker, in that the supervisor said he remembered the worker "…filling out an incident report with himself and project manager…at the time," while the worker said he provided the information one-on-one to the supervisor, who was sitting in his truck, with the worker standing outside the truck, and the supervisor said he would take care of this.

Information on file indicates that the supervisor advised the worker an incident report was completed and sent to the safety office. The employer has denied, however, that any information was sent to the safety office. The supervisor also advised that the project managers were aware of the worker's injury and the incident report was completed. Information on file shows the WCB contacted both project managers, who indicated they were not aware of the worker's injury, did not recall an injury report being completed, and had no record of such a report being submitted.

Another co-worker advised the WCB on February 15, 2022 that the worker complained of a sore knee and the co-worker remembered the worker tried climbing down the hill at the jobsite and indicated he did not feel good. The worker noted at the hearing that this reference was to another time after the workplace injury where he was helping the co-worker at the site.

The panel acknowledges that the worker may have been experiencing right knee pain and/or difficulties after September 11, 2021, but is not satisfied that the medical evidence supports that this was the result of a workplace accident or injury. The panel notes that the September 21, 2021 chart notes from the treating physician refer to the worker's description of having pain after slipping while working, and indicate there is swelling and reduced range of motion, but also report findings of "no distress no limping." The x-ray taken that same day noted no abnormal findings. The September 29, 2021 chart notes from the treating physician reported findings of "no distress looks well" and that the right knee looked normal, there were no acute findings, the knee was not inflamed and the worker was walking normally on it, and a diagnosis of "Right knee pain cause unknown" was provided.

The worker submitted at the hearing that the treating physician had not listened to him, and that he had to provide further information to the physician to get this "straightened out," as noted in a letter from the physician dated March 3, 2022. The panel notes, however, that the physician essentially sets out the worker's current description of his injury in that letter, but there is no new clinical information, and the panel is therefore unable to attach any weight to the March 3, 2022 letter.

As the worker insisted at the hearing that the supervisor had a log book which would be supportive of his claim, the panel requested that a copy of the log book be obtained from the supervisor. The panel has a number of concerns with respect to the document that was provided in response to that request, including that:

• While the Appeal Commission requested the log book directly from the supervisor, the document was not received from the supervisor but was provided by and through the worker; 

• The document that was provided was not a log book or a page from a log book, but a single page from a pad of paper; 

• The page which was provided was signed at the bottom, and the panel found it curious that the supervisor would have signed off on a page in his own personal log book; 

• While there is reference at the end of that page to "Field report, investigation and full report to follow threw (sic) office," there is no indication that this occurred and the employer has consistently denied that anything was reported to or received by them. 

Given the above-noted concerns, the panel has difficulty placing any weight on this document.

In any event, and regardless of the above concerns, the panel is unable to find, based on the foregoing and on the totality of the evidence that is before us, that an accident occurred as provided for under the Act.

The panel therefore finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of or in the course of his employment, and that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of June, 2023