Decision #104/24 - Type: Workers Compensation

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 September 25, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

An Employer's Accident Report was received by the WCB on February 6, 2024, reporting the worker injured their right hip as the result of an incident at work on January 31, 2024. The worker reported to the employer that on that date, they were checking to see if their vehicle was properly aligned to a loading dock, when they slipped on melting ice and hit their right hip on the ground. The worker further reported they did not feel much pain initially, but by the evening, the pain worsened, and they sought medical treatment on February 2, 2024.

A report from a local urgent care centre was received by the WCB on February 6, 2024. The report was for the worker's attendance on February 1, 2024, and when they were seen by a physician on February 2, 2024. The worker denied they sustained an injury and complained of pain to their right leg that started on January 20, 2024, describing the pain as burning from their right buttock, radiating to their right hip and down their leg to their knee then to their ankle. The worker noted the pain was intermittent and they would do stretches and exercises to relieve the pain, but it would return. On examining the worker, the treating physician found a straight leg raise on the right to 45 degrees and on the left to 60 degrees, no spinal tenderness and an x-ray taken at the time was noted to be normal. A diagnosis of sciatica was provided, and it was recommended that the worker follow up with their family physician. The worker was placed off work until February 5, 2024.

On February 5, 2024, the worker attended an appointment with their treating family physician. The worker reported slipping on ice and falling onto their right hip on January 31, 2024. The following day, the worker advised that they developed pain that radiated down their right leg. The physician examined the worker and found mild tenderness in their right gluteus, made worse with a right straight leg raise and tenderness in their right hip. A diagnosis of a lower back/leg injury was provided, and the worker was placed off work for a further week, then to resume regular duties. A Functional Abilities Form (FAF) was completed by the physician indicating the worker was to be off work and to trial resuming regular duties on February 12, 2024.

The worker submitted their Worker Incident Report to the WCB on February 16, 2024. The worker noted they injured their right hip when they slipped on black ice and fell on January 31, 2024.

At a follow-up appointment on February 20, 2024, the worker reported they attended to return to work on February 13, 2024, but after driving for 2 hours, their pain returned and worsened. The physician found point tenderness at the worker's right upper lateral gluteal area and a mildly antalgic gait. The physician diagnosed a right gluteal strain, recommended two weeks off work and physiotherapy. During a virtual follow-up visit on February 23, 2024, the physician noted the worker was attending for chiropractic treatment and their right hip pain was now stable.

The WCB contacted the worker on February 27, 2024 to discuss their claim. The worker confirmed they slipped on black ice and fell onto their right hip on January 31, 2024. They further confirmed they felt pain, but it wasn't too bad, and it wasn't until the following day that the pain worsened. The worker sought medical treatment after working their full shift that day. The WCB questioned why the report from the urgent care centre reported that the worker stated their symptoms began on January 20, 2024. The worker’s response was that they were not sure why the report stated that. The worker noted they did not work on that date and did not sustain an injury on that date. The worker further advised they returned to work on February 14, 2024 and February 15, 2024 but due to ongoing pain, discontinued working and have not returned since that time. The worker described their current symptoms as difficulties with bending and twisting, pain radiating down to their ankle, an inability to put pressure on their right leg and difficulty sleeping.

On March 5, 2024, the WCB provided the worker with a decision letter advising them that their claim was not acceptable. The WCB determined the evidence provided did not establish the worker's difficulties were related to an injury that occurred in the course of the worker's employment. The worker requested reconsideration of the WCB's decision to the Review Office on March 22, 2024. In their submission, the worker advised they called their spouse and a coworker to advise of their fall on January 31, 2024, indicating they fell and hurt their back. The worker also provided the Review Office with screenshots of text messages from February 2, 2024 between themselves and the employer advising of their injury. In addition, the worker noted their treating healthcare providers indicate they require further treatment and for that reason, the worker believes their claim should be accepted.

The Review Office found the worker's claim was not acceptable on April 17, 2024. The Review Office noted that the initial medical evidence on file indicates that the worker's reporting of symptoms that occurred two weeks previously was not related to a work-related incident. The Review Office also found that the worker indicated they advised their spouse and a coworker of the incident however, noted the incident occurred during the early hours of the morning and it was unlikely the worker would have contacted people at that time. Also, the Review Office found the worker reported to the employer they required time off due to symptoms of sciatica and not symptoms related to a workplace accident. As such, the Review Office further found an accident arising out of or in the course of the worker's employment had not been established.

The worker filed an appeal with the Appeal Commission on May 9, 2024, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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. As the date of injury is identified as January 30, 2024, the applicable legislation is the Act as it existed at that time.

Section 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.

The Act defines accident in Section 1(1) as

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace, 

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

and as a result of which a worker is injured….

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment.” The Arising Policy states that

When there is insufficient evidence to establish that a worker's accident arose out of their employment and also insufficient evidence to establish that it arose in the course of their employment, the legal test of "arising out of and in the course of employment" is not met. The accident is not related to their employment.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-Ex Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effect of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.

Worker’s Position

The worker attended the hearing and made an oral presentation and provided answers to questions posed by the panel members.

The worker’s position is that their claim ought to be accepted as they were injured by a fall that arose out of, and in the course of, their employment.

The worker stated that the fall did not feel serious at the time, and it was cold outside so they could not feel pain at the time of the fall. The worker said that pain increased in their leg and toes the following day. The worker expressed that they were concerned about the possibility of blood clots and went to the hospital because of that concern. The worker indicated that they told the doctor at the hospital about the fall at work. The worker advised that an MRI was ordered but due to the wait, they ended up traveling to another country for treatment.

The worker is seeking benefits as a result of the injury which caused them to be unable to work.

Employer’s Position

The employer was represented at the hearing by two Human Resources representatives. The employer’s representatives made an oral presentation and answered questions posed by members of the panel.

The employer’s position is that the worker’s leg issues were pre-existing and began two weeks prior to the fall that occurred at work.

The employer states that the worker did not report the injury until February 2, 2024 and that the worker did not advise the employer that they had been to the hospital. The employer also states that at the time of reporting the worker stated they were not sure whether their leg issue was related to the fall they had. The employer states that they are not disputing that the worker fell, however, they are of the view that the worker’s pre-existing condition was the cause of the leg issues the worker experienced.

The employer states that they support the decision that WCB has made in this regard and are seeking that the Review Office decision be upheld.

Analysis

The issue before the panel is whether the claim is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker was injured as a result of an accident arising out of and in the course of their employment. The panel is not able to make that finding in this case for the reasons that follow.

The panel has considered the medical information on file and specifically notes that the reason for the visit, as indicated in the chart notes from the worker’s visit to the hospital on February 1, 2024, is pain to the worker’s right leg starting on January 20, 2024. The panel has also noted that the diagnostic imaging report from February 2, 2024 indicated “Right sciatica. No injury. Assess lumbar spine.” Despite the worker stating that the fall was mentioned to the doctor at the hospital, this is not what the chart notes indicate. The panel is of the view that the worker did not mention the fall at work to the doctors during his hospital visit or the MRI appointment. From a review of the medical evidence, the first mention of the fall is at an appointment with the worker’s treating physician on February 5, 2024.

The panel has also considered that the worker has indicated that the main reason they attended the hospital on February 1, 2024 was over concern of blood clotting in their legs. The chart notes however do not mention a concern about blood clots, despite the worker’s assertion that was the reason for attending the hospital. The panel notes that there is also no mention of the worker’s concern of blood clots in the chart notes from the worker’s treating physician.

On questioning by the panel, the worker indicated that they had felt numbness in their toes approximately two weeks prior to the fall at work, however it was not severe enough that they needed to go to the hospital. This is not consistent with the information provided to the WCB and as set out in a memorandum on file dated February 27, 2024, wherein the worker denies any prior injury or prior symptoms.

The panel has also noted that the worker advised the employer on February 1, 2024 that they were “not available” for their shift. No details were provided regarding an injury at this point in time. The worker did mention the injury to the employer on February 2, 2024. The panel is of the view that if the hospital visit was in relation to a workplace injury it is likely that the worker would have reported the injury to their employer during communications on February 1, 2024, especially since the worker was at the hospital that same day.

The panel places greater weight on the evidence provided by the worker during their hospital visit on February 1, 2024.

The panel is of the view that the issues the worker was experiencing were related to the pre-existing difficulties they had with their leg.

Based on our review and consideration of the evidence before us, on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker's leg issues were not the result of an accident arising out of and in the course of their employment and that the claim is therefore not acceptable. The worker’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2024

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