The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The claim is acceptable; and 

2. The worker is entitled to wage loss benefits.

A hearing was held on July 27, 2023 to consider the employer's appeal.

Issue

1. Whether or not the claim is acceptable; and 

2. Whether or not the worker is entitled to wage loss benefits.

Decision

1. The claim is acceptable; and 

2. The worker is entitled to wage loss benefits.

Background

The employer provided an Employer’s Accident Report to the WCB on December 6, 2022, noting the worker reported an injury to their right ankle that occurred at work on October 4, 2022. The worker described unloading items from a truck on October 4, 2022, when they stepped on a rock and their foot slipped forward, after which they felt pain in their ankle. The employer noted concerns about the worker’s claim, including that the worker had not reported the incident to their manager, there were no witnesses to the incident and the worker sought medical treatment, including an x-ray on October 6, 2022 which they did not report to the employer. Further, the employer noted the worker attended for further treatment on October 8, 2022, was referred for an ultrasound and advised to return to work. On December 1, 2022, the worker underwent the ultrasound study, was advised they had a tear in their Achilles tendon and their right ankle was placed in a cast until February 1, 2023. The worker contacted the employer the following day, December 2, 2022, to report the incident. The employer noted the worker delayed in reporting the incident and sought medical treatment without advising the employer. The employer indicated its concern that the incident did not occur at work.

When the WCB contacted the worker on December 8, 2022 to discuss their claim, the worker confirmed that on October 4, 2022, when unloading heavy items, they descended down from a vehicle, stepped on a rock that was on the ground with their right foot and rolled their ankle. They continued working and finished their shift that day. The worker reported they sought medical treatment on October 6, 2022 at a local walk-in clinic, where an x-ray was taken. The worker returned to the clinic on October 8, 2022 and their ankle was again x-rayed. The treating physician confirmed they could return to work and the worker continued performing their regular duties on regular hours. The worker noted the ultrasound took place on November 12, 2022, and they were called on November 23, 2022 to arrange an appointment to review the results. When the worker attended a fracture clinic on December 1, 2022, they learned that their Achilles tendon was torn and the worker was placed in a walking cast and received a sick note authorizing them to stay off their right foot for two months. After this, the worker advised the employer of their injury and the employer did not offer modified duties. The worker described being able to walk with the walking boot, with occasional swelling, no bruising and pain at night. Regarding the delay in reporting, the worker advised they sought medical treatment right away and were not initially advised there was anything wrong with their ankle. They continued working as they did not believe the injury was serious enough to report to the employer.

The WCB received copies of medical reports from the treating healthcare providers on December 9, 2022. The October 6, 2022 walk-in clinic report noted the worker's report of ankle pain after jumping off a vehicle at work. The worker indicated they had been walking on it for three days and it hurt. The walk-in clinic physician examined the worker, noted no obvious deformity, tenderness over the insertion of the Achilles tendon and lateral malleolus and a normal neurovascular exam, and requested an x-ray. The physician diagnosed musculoskeletal ankle pain and advised the worker to follow-up for x-ray results and if the pain did not improve. An October 9, 2022 report from the walk-in clinic indicated the results of the x-ray could not be located and the worker was referred to the local emergency department to have their ankle immobilized. The emergency department report indicated the worker's right ankle was "…swollen to medial and lateral side", and noted the worker advised that swelling had increased, and they had been self-treating with ice and elevating. X-ray results revealed no obvious fracture. The physician diagnosed Achilles tendonitis and advised the worker to elevate their ankle, use ice and return if no improvement. The ultrasound findings from November 5, 2022 indicated an Achilles tendon rupture “…with retraction proximal and distal. Gap deformity estimated 2.5 cm. The rupture is approximately 8 cm from the distal insertion at the calcaneus. A thin slip of tendon is believed to remain intact. There is evolving hematoma and surrounding soft tissue inflammatory change." On November 6, 2022, the emergency room physician referred the worker to an orthopedic surgeon based on the ultrasound results.

The WCB accepted the worker’s claim and advised the employer on December 9, 2022.

A December 1, 2022 report from the orthopedic surgeon was received by the WCB on December 15, 2022. The surgeon noted the diagnostic imaging indicated an Achilles tendon rupture with proximal retraction that occurred as the result of an accident at work on October 4, 2022. The orthopedic surgeon further noted the worker reported improvement in their overall pain, discomfort and swelling since that time and that they had discussed conservative management of the injury. The worker’s right ankle was placed in a back slab, with a walking boot and restrictions were recommended.

On December 29, 2022, the worker advised the WCB their pain had dissipated, the ankle was not swollen, and they felt it was healing well. In follow-up with the worker on January 5, 2023, the surgeon noted the worker's injury was improving and provided a note for the worker to remain off work until March 5, 2023.

The WCB contacted the employer on January 19, 2023 to discuss the worker's restrictions and ask if the employer could accommodate the worker in a position with no range of motion to the worker's right ankle and protective weight bearing. The employer advised on the same date they could not accommodate the worker.

On January 25, 2023, the employer requested reconsideration of the WCB's decision to accept the worker's claim and their entitlement to wage loss benefits to Review Office. The employer noted in their submission that there was no evidence to support that the worker’s injury occurred while at work, the employer was not notified of any workplace accident occurring, the worker performed their regular duties for two months before being placed in a cast and removed from work, and that the WCB accepted the worker's claim within three days of the claim being submitted.

On February 16, 2023, the worker advised the WCB that the treating orthopedic surgeon advised them to wean off the walking boot cast over the course of the next two to four weeks, to start physiotherapy and to consider a gradual return to work in four weeks. A copy of the surgeon's February 16, 2023 report was received by the WCB on February 21, 2023, which confirmed the advice received from the worker and indicated a gradual return to work plan should be started in four to six weeks' time. An initial physiotherapy assessment took place on March 2, 2023, noting the worker had general decreased strength and stability in their right ankle due to immobilization and diagnosed a recovery right Achilles tendon rupture. At follow-up on March 8, 2023, the physiotherapist recommended restrictions of sedentary duties where the worker did not have to be on their feet for prolonged durations. The WCB provided the employer with these restrictions on March 10, 2023. On March 15, 2023, the worker's restrictions were again updated, and the WCB advised the employer accordingly on March 20, 2023. The employer advised on March 21, 2023 they remained unable to accommodate the worker.

On March 20, 2023, the treating physician noted ongoing pain and continued decreased range of motion and recommended further diagnostic imaging. An ultrasound study took place on March 22, 2023 resulting in an urgent referral to an orthopedic surgeon. An MRI study of March 29, 2023 indicated an "Essentially complete midsubstance tear of the Achilles tendon with only a single thin fiber remaining intact."

Review Office determined on April 6, 2023 that the worker's claim was acceptable, and the worker was entitled to wage loss benefits. Review Office found that the medical evidence most proximate to the October 4, 2022 workplace accident indicated the worker sustained an injury arising out of and in the course of their employment. As the worker sustained a workplace accident, Review Office found the worker was entitled to wage loss benefits.

The employer filed an appeal with the Appeal Commission on April 18, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation in force at the date of accident are applicable.

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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 27 of the Act provides that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Employer’s Position

The employer was represented in the hearing by its manager of health and safety, its director of capital maintenance and environment, and a manager of maintenance. The manager of health and safety made an oral submission and relied on a written submission provided to the Appeal Commission on July 19, 2023. The director of capital maintenance and environment and manager of maintenance provided additional information and answered questions posed by members of the appeal panel.

The employer’s position is that the evidence does not establish that an accident occurred as the worker described, noting there are inconsistencies in the worker’s reporting and that the worker did not report an injury until some two months after it allegedly occurred, and therefore the claim should not be acceptable, and the worker should not be entitled to wage loss benefits.

The employer’s representative submitted that the WCB decision to accept the worker’s claim was made too quickly and without sufficient investigation, particularly considering the concerns raised by the employer in its Employer’s Accident Report of December 6, 2022, regarding the lack of reporting of an injury to the employer until December 2, 2022 despite the worker having sought medical treatment in relation to their right ankle injury on October 6 and 8, and December 1, 2022. As outlined in the Employer’s Accident Report, the worker is known to participate in sports, and it was unclear to the employer whether or not the worker’s injury was incurred at work. The employer’s representative highlighted discrepancies in the description of how the injury occurred, noting that the emergency room report of October 8, 2022 suggested the worker hurt themself playing volleyball. The representative also noted that in some descriptions of how the injury occurred, the worker was in the truck box and in others, on the ground, and that they hurt their ankle while stepping or while jumping. Further the representative noted that the worker described holding a number of plywood sheets at the time, which is improbable.

The employer’s representative submitted that given the absence of witnesses to the injury and the concerns raised by the employer at the outset of the claim, the WCB ought to have investigated further before concluding that the claim was acceptable, and that the worker was entitled to wage loss benefits. The representative noted that the WCB case manager initially asked the worker only why they did not report an injury sooner but did not ask further questions about the worker’s involvement in volleyball until April 2023.

The employer’s representatives noted that while English is not the worker’s primary language, the worker is quite capable of communicating in English in the workplace. Furthermore, the representatives noted that the worker had been trained in incident and injury reporting and ought to have reported this to their immediate manager immediately but failed to do so.

The employer’s representatives confirmed that the worker’s job is physically demanding and that modified duties were not available to the worker after restrictions were imposed. The representatives noted that the worker was able to keep working after the injury until early December 2022 when their physician removed them from work.

The employer’s representative noted that had the worker reported the injury promptly, the employer would have undertaken its own investigation of the circumstances but confirmed that no investigation took place in December 2022 when the worker finally did report the injury.

In sum, the employer’s position is that the evidence is not sufficient to establish that the worker sustained their right ankle injury as a result of an accident arising out of and in the course of their employment; therefore, the claim is not acceptable, and the worker is not entitled to wage loss benefits.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The employer’s appeal is in respect of the WCB’s decisions that the worker’s claim is acceptable, and that the worker is entitled to wage loss benefits. For the appeal to succeed, the panel would have to determine that the worker was not injured as a result of an accident arising out of and in the course of employment, and that the worker has not experienced a loss of earning capacity as a result of that injury. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the employer’s appeal is denied.

The claim arises from an incident that the worker stated took place on October 4, 2022 which they reported to the employer on December 2, 2022 and to the WCB on December 8, 2022. The employer raised concerns about the delay in reporting of this injury, noting that as a result, it could not investigate the incident as it usually would on receiving report of a critical incident in the workplace. The panel considered that although the employer’s ability to investigate at the time the event occurred was likely hampered by the late report, the employer’s representative confirmed in the hearing that no investigation was undertaken when the employer ultimately learned of the worker’s claim. The panel further noted that the worker confirmed to the WCB there were no witnesses to the injury and that they did not report the event is because they did not believe it was a significant injury given the treatment advice received from their treating physician. The panel accepts this explanation, noting that the worker did report to their treating physician on October 6, 2022 that they sustained an ankle injury at work, but the treating physician also did not at that time report the event to the WCB, as would have been expected.

The earliest evidence of the incident, most proximate to the date of the reported event, is contained in the treating physician’s chart notes of October 6, 2022 which indicate the worker’s report of “L[eft] ankle pain, jumped off truck at work, felt a pop, hurts to walk on it for last 3 days.” This report is contrasted with the chart notes from October 9, 2022 when the worker sought further treatment at the local emergency room. The chart notes of that visit indicate that the worker “…states [they] injured ankle on Tuesday playing volleyball, pt states [they] hit [their] achilles with opposing foot.” The panel also considered that on December 1, 2022, the worker reported to the WCB that they injured their right ankle at work on October 4, 2022 when they stepped on a rock and almost fell, feeling “something like click” and on December 8, 2022, the worker advised the WCB case manager that the injury occurred when they were unloading plywood sheets from a pickup truck. As they were descending down from the truck, the worker stepped on a stone on the ground and rolled their right ankle. The worker’s report to the WCB is consistent with the worker’s December 2, 2022 report to the employer. The panel further noted that the March 1, 2023 Physiotherapy Initial Report indicates that the injury occurred when the worker “Jumped off vehicle holding material, landed on object on ground and left foot slipped forward resulting in ankle injury (parked vehicle).”

The employer submitted there is a significant difference between the description of an ankle injury that occurred at work on getting down from a truck box, and an ankle injury that occurred while playing volleyball and therefore queried whether the evidence supports the WCB’s finding that the worker was injured arising out of and in the course of their employment. This is a valid question, which the panel noted was also raised by the WCB medical advisor in their April 14, 2023 memorandum to file. The panel considered that when this discrepancy was put to the worker by the WCB case manager on April 14, 2023, the worker confirmed, as documented by the case manager, that on October 9, 2022 they “…tried to tell the ER doctor that [they] had experienced a similar left ankle injury due to a sports trauma in the past – [they] had hit [their] left ankle with the other foot while playing volleyball years ago. The doctor may have misunderstood [them] as English is [their] second language.” The worker explained they do not play recreational volleyball but sometimes join in to play with their daughter, as recently as approximately one week before the injury. The panel further noted that although the employer’s representatives stated that the worker is easy to understand despite not speaking English as a primary language, the WCB case manager recorded that they spoke with the worker in their primary language. The panel also noted that the worker’s written English, as demonstrated in their file communications, does not indicate complete fluency. As such, we accept the worker’s April 14, 2023 explanation to the WCB case manager regarding a likely miscommunication with the emergency room physician on October 8, 2023.

The panel accepts the worker’s initial report to the employer and the WCB as to how the injury occurred, noting that this is consistent with the initial report to the treating physician just days after the incident occurred as well as subsequent reporting to the treating physiotherapist. The panel finds that, on a balance of probabilities, the worker’s right ankle injury was sustained when they dismounted from a work vehicle in the course of their job duties on October 4, 2022 and stepped on a rock, rolling their ankle in the process. While the employer also noted discrepancies in the reporting of the details of the load the worker was carrying at the time of the accident, the panel is satisfied that the evidence indicates the worker was carrying a load related to their job duties at the time of the accident.

The evidence before the panel further confirms that the worker sought appropriate treatment and was not advised to discontinue working at their regular duties after the injury occurred until a cast was placed on the ankle on December 1, 2022. As such, the worker continued to undertake their regular duties until that time. Further, we note that the employer confirmed that there were no modified duties available for the worker at that time, nor subsequently. As such the panel is satisfied that the worker sustained a loss of earning capacity due to the injury sustained in the compensable workplace accident of October 4, 2022.

On considering the evidence before us, and applying the standard of a balance of probabilities, the panel is satisfied that the worker was injured as a result of an accident arising out of and in the course of their employment and that the worker incurred a loss of earning capacity as a result of that injury. Therefore, the worker’s claim is acceptable, and the worker is entitled to wage loss benefits. The employer’s appeal is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of September, 2023