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 hearing was held on August 14, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on February 1, 2024, reporting that on October 4, 2023, they injured their right hip after falling from a height of approximately 12 feet onto a ladder. They noted they reported the incident to the employer on February 1, 2024.

A Doctor First Report for an appointment at a local clinic on October 13, 2023 was received by the WCB. The worker reported to the treating physician that 10 days previously, they were working on a ladder, fell and hit the ladder, landing on their right hip/buttock. The physician noted the worker was able to ambulate and did not have tenderness at the sacrum, lumbar spine or coccyx areas but did have tenderness to the right buttock. A diagnosis of a contusion to the lumbar spine/coccyx was provided and ice and use of a cushion was recommended.

In a discussion with the WCB on February 6, 2024, the worker confirmed the mechanism of injury and advised they did not make a formal report but did tell their supervisor about the incident on October 4, 2023. The worker noted that after the incident they continued working but by the end of their shift, experienced swelling in their right leg/buttock and pain when walking. They described difficulty getting up after prolonged sitting, which had gotten progressively worse. The worker noted their symptoms had them bedridden and unable to get up in the morning, with localized pain to their right thigh and hip, increased pain when reach down, bending over or using stairs and they were using a cane and crutches to ambulate. The worker advised the WCB in addition to seeing the physician, they were also seen by a sports medicine physician, who had taken x-rays and advised the worker it was an issue with their spine. The worker further advised they had progressive issues with their right hip prior to the workplace accident, with working on ladders aggravating the issues but they had not sought treatment. The worker noted that they continued working their full regular duties after the October 4, 2023 workplace incident but their employment was terminated on October 20, 2023. The worker noted their belief is that the termination was due to their not being able to perform their job duties.

The employer provided the WCB with an Employer Injury Report on February 8, 2024. The employer noted the worker's reported date of accident was their second day working for the employer and the worker would not have been performing the job duties indicated on their report. The WCB requested additional information from the employer and on February 15, 2024 the employer advised that the worker's supervisor had not been notified by the worker of the October 4, 2023 accident and had not witnessed the worker having difficulties performing their duties after the incident.

On March 4, 2024, the WCB advised the worker by way of a decision letter that their claim was not acceptable as it could not be established the worker's right hip injury was caused by their job duties or occurred at work. A February 27, 2024 report from the worker's treating sports medicine physician was received by the WCB on March 8, 2024. The physician indicated they had first seen the worker on February 2, 2023 for non-compensable issues. The physician noted the worker reported pain in their hip and that they referred the worker for x-rays. The worker was seen again on March 13, 2023, and it was noted the worker's hip range of motion "remained well" and the worker was awaiting a referral to a pain clinic. The worker was next seen on November 14, 2023, and reported ongoing right-sided hip pain, localized to the lateral hip and posterior area, worsened with walking and standing. Range of motion was noted to be decreased with negative nerve root tension and impingement tests. The worker then had a virtual appointment with the treating sports medicine physician on February 6, 2024, reporting ongoing pain. The physician included copies of a February 2, 2023 x-ray of the worker's left hip, which noted mild degenerative changes and a November 14, 2023 x-ray of the right hip which was noted to be normal.

The worker requested reconsideration of the WCB's decision to the Review Office on March 28, 2024. On April 17, 2024, the Review Office determined the worker's claim was not acceptable. The Review Office found discrepancies in the worker's reporting, including advising they reported the incident to their supervisor but the supervisor did not report being advised of the incident, in addition to not reporting a workplace accident to the treating physician when seen on October 13, 2023, despite reporting a fall from a ladder 10 days previous, made it difficult to determine the worker sustained an injury while at work. As well, the Review Office found the medical information provided supported the worker had sought medical treatment prior to the October 4, 2023 for hip difficulties, with no reports linking those difficulties to an accident at work.

The worker submitted additional information, including a video statement by a coworker to the WCB and on October 30, 2024, requested the Review Office reconsider its previous decision. The worker submitted that they had not remembered their coworker's name at the time they filed their claim with the WCB but later remembered and contacted the coworker for a statement. The worker noted that although their accident occurred before the coworker started their shift, they had told the coworker of the incident and the coworker was aware of their injury and difficulties. The Review Office spoke with the employer on November 27, 2024 who confirmed the worker and the coworker had worked different shifts on October 4, 2023.

The Review Office again determined on November 28, 2024, the worker's claim was not acceptable. The Review Office found the statement provided by the worker's coworker reported the accident happened on September 23, 2023, not October 4, 2023 as reported by the worker. In addition, the Review Office noted the worker had reported no witnesses to the accident when they initially filed their claim, with it not until months later the worker submitted the statement by the coworker and placed more weight on the reporting in closer proximity to when the worker submitted their claim. The Review Office also placed weight on the worker's delay in reporting the injury to both the WCB and the employer and not indicating to their treating physician on October 13, 2023, they had sustained a workplace injury, which delays made it difficult to establish the worker sustained an injury in the course of or arising out of their employment.

The worker filed an appeal with the Appeal Commission on April 11, 2025 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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 follows:

"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.

Section 17(1) of the Act requires that a worker give notice of an injury caused by an accident to their employer as soon as practicable and no later than 30 days after the accident occurs. Section 17(5) provides grounds for excusing a failure to give the notice required and includes where "the board is of opinion that the claim is a just one and ought to be allowed."

Worker’s Position

The worker was present at the hearing and made an oral submission to the panel. The worker also relied on their written submission included in the Worker Appeal of Claims Decision form dated April 10, 2025 and the medical information and photos provided by the worker in advance of the hearing on August 5, 2025. The worker offered testimony through their answers to questions posed by members of the appeal panel. The worker also produced a witness, who provided evidence through questions posed by the worker and members of the appeal panel.

The worker’s position is that they suffered an accident at work and, although they did not report the injury for several months, it is a legitimate claim and should therefore be accepted. The worker’s evidence and the evidence from the witness is that the injury occurred at work. The worker also states that the medical evidence also confirms that the worker attended a medical appointment 10 days after incident and reported falling from a ladder. The worker had right buttock pain, swelling and a bruised tailbone.

The worker states that the injury occurred while they were in the course of employment and is seeking that their appeal be accepted.

Employer’s Position

The employer was represented at the hearing by their Human Resources manager, who participated virtually. The representative made an oral submission and answered questions posed by members of the panel.

The position of the employer is that there is no evidence to support the finding that the incident occurred while the worker was working.

The employer’s evidence is that the incident was not reported to the employer at the time of the accident and was not reported until several months later. The employer submits that there were no witnesses to the incident and states that neither the coworker training the worker nor the operations manager observed the worker having any difficulties performing their duties after the incident.

The employer is seeking that the Review Office decision be upheld and the claim be denied.

Analysis

This appeal arises from the WCB’s decision that the worker’s claim is not acceptable in respect of a reported hip injury arising from a fall at work during their October 4, 2023 shift. For the worker’s appeal to succeed, the panel would have to find that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The worker stated that the incident occurred on their second day of employment, while they were working alone in an unoccupied unit. In order to complete their duties, the worker reported that they were required to use a ladder to access a raised platform (approximately 16 to 18 feet above ground level). The worker indicated that they were on a ladder which hooked onto the platform when the ladder fell, causing them to hang from the platform before eventually falling and landing on their hip, tailbone and buttocks.

The worker’s evidence is that they did advise the individual training them of the incident and also told a coworker of their injury. The employer’s evidence is that they were not advised of the incident.

The panel considers it a significant oversight that the WCB did not interview the coworker that was training the worker and whom the worker states they advised of the accident. The panel accepts that the worker reported the incident and that the employer had knowledge of the injury and regardless, the panel is of the view that claim is a just one and ought to be allowed and therefore the 30 day time limit shall not apply.

The panel is of the view that the delay in reporting the injury is not fatal to the claim. It is reasonable to expect that a worker may be hesitant to report an injury sustained on their second day of employment. Moreover, the medical evidence in closest proximity to the worker’s injury (clinical notes dated October 13, 2023) confirms the mechanism of injury and states the worker was “working on a ladder and fell”. The worker’s evidence is that they went to their treating physician ten days after the accident because they continued to have significant pain and swelling.

The panel is satisfied that the described mechanism of injury could have caused injury to the worker.

The clinical notes state that the worker is “not involved with WCB”. The worker’s evidence that they advised the treating physician that they had not contacted the WCB at that point. The worker’s evidence is that they expected their symptoms would improve, but instead they continued to worsen.

The panel heard evidence from the coworker, who did not witness the injury itself but recalled speaking to the worker following the incident. The coworker’s evidence was that particular unit was a tricky and awkward unit to access. The coworker told the panel that they saw the worker during their shift and the worker told them of the fall. The panel accepts the coworker’s evidence.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury arising out of and in the course of their employment on or about October 4, 2023. Therefore, the worker’s claim is acceptable and the appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of October, 2025