FD: FD: DT:D DN: 257/88 STY: PANEL: McGrath; Robillard; Meslin DDATE: 15/08/88 ACT: *1(1)(a) KEYW: Disablement (unaccustomed strain). SUM: Worker was operating grading machine when machine slid down embankment. Worker entitled to benefits for knee strain. Panel finding that strain was disablement caused when machine slid down embankment and worker braced himself with his leg and knee. PDCON: TYPE:A DIST: DECON: Decision No. 69 (1986), 1 W.C.A.T.R. 172 BDG:Claims Adjudication Branch Procedures Manual, Document no. 33-02-14 IDATE: HDATE:120488 TCO: KEYPER:D. Drury; S. Copeland; Z. Barmania XREF: COMMENTS: TEXT:
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 257/88 This appeal was heard on April 12, 1988, by: J. McGrath : Panel Chairman, M. Meslin : Tribunal Member representative of employers, M. Robillard: Tribunal Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the decision of the Workers' Compensation Board Hearings Officer dated January 5, 1987, which denied him initial entitlement to benefits for a left knee disability on the basis that it did not arise out of and in the course of his employment on October 4, 1985. The worker appeared and was represented by D. Drury of the Office of the Worker Adviser. The employer was represented by S. Copeland. Ms. Z. Barmania, from the accident employer sat in as an observer. THE EVIDENCE The Panel had the Case Description materials prepared by the Tribunal Counsel Office that were marked as Exhibit #1 and included Addendum #1. The following materials were additionally marked as exhibits: Exhibit #2: Three original reports from the accident employer dated October 21, 1985; Exhibit #3: An internal handwritten memo dated November 28, 1985. The worker appeared and gave evidence under oath. Two witnesses called at the request of the employer also testified. One was the immediate foreman of the worker at the time of the accident, and one was a general foreman for the accident employer. THE NATURE OF THE CASE The worker claims to have injured his knee on or about October 4, 1985, and is seeking total disability benefits for the period in which he was off work from October 21, 1985, to November 11, 1985. The Hearings Officer denied entitlement on the basis that there was some question of proof of an accident, no evidence of any specific accident or incident, and that there was no awkward movement slip or twist involved. In
2 addition, the Hearings Officer noted that there seemed to be some question as to correct diagnosis. THE PANEL S REASON The Panel will consider the evidence under a number of headings. (i) Factual background The worker was a 32 year old man at the time of the alleged accident in October 1985. He worked as a heavy equipment operator, licenced for heavy cranes and was competent in all types of heavy equipment since 1969. In July 1985, he was hired by the accident employer through the union for night shift work, five days per week under an immediate foreman, Mr. A. However, for two weeks prior to the incident on October 4, 1985, the worker had been working the day shift under the supervision of the general foreman, Mr. De. S. On October 4, 1985, the worker was asked to grade the earth on a steep bank of a canal working with a front-end loader-grader. He described this bank as being approximately 30 feet high with a slope that appeared to be at a 45 degree angle from the ground. This slope was broken by a ridge about half way down the bank, and the worker was working on the upper ridge. He commenced this work at 8:00 a.m. on earth that was slippery with dew. He was running the machine back and forth along the slope and had being doing so for approximately three hours when the machine suddenly skidded and slipped a distance somewhere between 10 and 15 feet down until it hit the "stopper area", being the level ridge described above. The worker's evidence is that there was some impact when it hit the level grade. The machine slid down on its left side, parallel with the slope. The worker describes this incident by saying that he froze and was afraid for a very short period of time, for just a split second while the machine slipped down the bank. He further testified that he has never had a vehicle slide on him before, that this was an unusual occurrence. There was some confusion about the position of the worker during this slide, but he indicated that his knee could have been bracing up against the frame of the machine. On level ground, the frame is about four to five inches from the left leg and knee. The worker did not recall banging his knee and he did not feel any pain at the time of this incident. As soon as this happened, the worker told his general foreman Mr. De S. that he had to stop grading because of the wetness of the ground and the potential for more slipping and from that time until the end of the day he operated a crane, which was hand operated on the level. When he woke up the next morning which was Saturday, he noticed some pain in his left knee which increased over the course of the weekend. When he returned to the night shift on Monday, October 7, 1985, he reported to his immediate foreman, Mr. A., that he was having trouble with his left knee and may have to go to the hospital. At that time he reported to Mr. A. that he had injured his knee when he had been grading the steep bank on the previous
3 Friday, October 4, 1985. From the time the worker experienced discomfort with
4 his knee he assumed it had happened during that incident on October 4 because it was the only activity that was awkward or unusual to account for the injury. He testified that there was no accident or injury to his knee during the weekend of October 5 and 6, 1985, or any later date. On October 8, the pain had become so severe that the worker went to the emergency section of the hospital, and according to his testimony told the nurse what had happened about the sliding machine but also said that he did not want to cause any trouble. She informed him that the report could be changed later if he wished to make a claim. He indicated that he probably told the staff at the hospital that he was using a clutch on the machine with his left leg. When he returned to work, he told Mr. A. the results of the hospital visit. The knee became progressively worse and the worker returned to the hospital again on October 16 and had prescribed pain killers, a tensor bandage, and x-rays. On October 21, the worker saw his own physician, Dr. Wu, who diagnosed a knee sprain and told the worker to lay-off work for a period of about 14 to 21 days and get rest. He then made a claim to the Board. The worker was off work from October 21, 1985, until November 11, 1985, when his left knee had healed sufficiently for him to return to employment. The Board denied entitlement to the worker for this period. (ii) Medical evidence 1. The hospital report when the worker attended the emergency ward on October 8, 1985, stated "now with `achy' left knee after using clutch at work". 2. The hospital report on October 16, 1985, after an x-ray had been taken, indicates that there was minimal fluid in the joint. History states "works on clutch" and a tension bandage was prescribed. This report makes a diagnosis of arthritis. 3. The report of Dr. Wu to the Workers' Compensation Board of October 21, 1985, indicates treatment of knee, rest, disablement from work for 14 to 21 days and states this history: "While grading steep bank, machine caused patient to lean to left and bearing weight felt pressure on left knee". Dr. Wu's diagnosis is sprain, left knee. 4. Dr. H.W. Boyes of the Board, when recommending rejection of the claim on March 26, 1986, based this recommendation apparently on what he called a more likely diagnosis of arthritis and the fact that there is really no history of injury. He further notes that there was no medical attention until October 21, 1985. The fact that the worker had received medical care was pointed out to Dr. Boyes, who then noted in a second memo on April 18, 1986, that: Your memo #18 is noted and I am aware now that this patient had medical care four days after the history of onset of problems. It should also be noted that this patient has what is described as water in the knee, the day before this accident which casts considerable doubt on the whole claim. All in all, with the information available, I think this claim should be rejected.
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6 (iii) Other evidence Mr. A., the worker's immediate foreman, testified that the worker reported to him that he had hurt his leg, and that he had banged it against the side of the machine and kept doing this because of the position of the machine. Mr. A. reported this to his supervisor, Mr. De S. He confirmed the worker's evidence that he had been operating on the slope of the canal. Mr. A. had never heard anything about a prior problem with the worker's knee. When the worker presented him with bills for his medicine, he turned them over to Mr. De S. Mr. De S. who was a supervisor for the accident employer over 28 years, is now supervisor over all trades. He does not remember anything about the worker on October 4 working on a slope and having to change to level work after the machine slipped. He recalled an incident on October 3, 1985, in which the worker told him that he had a "bad knee". Throughout the file, this has been interpreted as the worker claiming on October 3 that he had water on the knee. Mr. De S. denied that he said that. While describing this conversation with the worker, Mr. De S. rubbed his right knee, and further testified that he thought the worker had told him the injury was to his right knee. This witness's testimony of the chronology of events states that after this discussion of the worker's "bad knee", the worker brought to him bills for medication but was told the employer does not pay these bills. A "couple of days" later, the foreman left him a note of the accident, and then a "couple of days" later he investigated with the worker and the worker told him that he "must have hit his knee". Mr. De S. testified that he did not make an accident report because of the sequence of events. He felt the accident was not job-related. Mr. De S. was confused about dates, although he stated that at the time he put everything down on a piece of paper which unfortunately he did not keep. Throughout this case there is reference to the issue of a prior knee injury and the worker having "water on the knee". The source of this issue appears to be solely from the evidence of Mr. De S. and the written evidence contained in the internal handwritten memo of the accident employer listing the chronology of events. This memo was prepared on November 28, 1985, and refers to the comments of Dr. De S. about this event. (iv) Conclusions For the worker to be entitled to benefits it must be established that he suffered an accident as defined by the Workers' Compensation Act which includes: (I) (ii) (iii) a wilful and intentional act, not being the act of the worker, a chance event occasioned by a physical or natural cause, and, disablement arising out of and in the course of employment.
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8 It would appear that the worker's claim falls within the subheading of "disablement" and the Board's guidelines under Document #33-02-14 requires that the disablement which the worker suffers must have some causal relationship with the work being performed such as, among other things, an awkward position or an unaccustomed strain. This Panel accepts the panel's reasoning in Decision No. 69 which states "the onset of a disability at work does not necessarily entitle the worker to workers' compensation benefits. The work being performed must be the probable cause of the disability." The Panel found the worker's evidence credible. He seemed genuinely unable to explain precisely how the strain to his knee happened because he did not feel pain at the time. However, the Panel does find that the pain developed the next day and reached a level requiring medical investigation on October 8, 1985, when the worker went to emergency at the hospital. The worker's story of the events as they occurred from October 4, 1985, until October 21, 1985, when he was told by his doctor to stay off work for his injury, are supported by the evidence of Mr. A. and the Panel found Mr. A. to be a credible witness. The worker's evidence is also confirmed, albeit in a rather imprecise manner, by the hospital report of October 8, 1985, which refers to the worker using his clutch at work, and much more precisely by Dr. Wu in his report on October 21, 1985, referring to the pressure on his left knee when he had to lean because of the machine grading a steep bank. The Panel had difficulty with the evidence of Mr. De S. because his idea of the chronology of events does not seem to make sense. It does not appear to the Panel that he would have received the medical bills from the worker before he even heard of the injury. These would have come to him much later. The only documentation of his alleged discussion with the worker about his sore knee was written on November 28, 1985, a period of approximately eight weeks from the date of the occurrence. Mr. De S., at some point, must have used the phrase "water on the knee" but at the hearing he said that he had only been told by the worker that he had a "bad knee". He also recalled the worker referring to his right knee. These discrepancies inclined the Panel to discount his evidence. The Panel finds that Dr. Boyes, in giving his initial recommendation to the Board about disentitlement of benefits, was not fully informed of the evidence. We have difficulty with his comment that he finds "the more likely diagnosis of arthritis". The Panel finds that the diagnosis of arthritis, as written on the hospital report of October 8, 1985, is unsupported by any other medical evidence. The employer's representative argued at the hearing that there was no immediate onset of symptoms, the worker continued to work until October 21, 1985, and the first medical report to the Board, requesting his layoff from work was not made until October 21. He argued that all of these factors militate against the worker's claim. With respect, the Panel cannot share this view. We find the worker's behaviour was reasonable in the circumstances throughout this period. The fact that there was no immediate onset of pain is not disentitling in and of itself. The fact that the worker continued to work until October 21, although in obvious difficulty with his
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10 knee as witnessed by his trips to the hospital, indicates that the worker was a conscientious worker and did not wish to be off work or to cause trouble. On reviewing all of the evidence as outlined above, the Panel finds that the most probable cause of the disablement to the worker was the unusual incident which occurred when the loader-grader slipped down the embankment on October 4, 1985, and the Panel finds that the worker most probably did brace himself in this momentarily frightening experience with his left leg and knee as he found himself in a very tense and awkward position. The Panel further finds that this was an unusual experience and strain for the worker having only happened that one time in his 16 years experience on these machines. The worker has satisfied the Panel that he fulfills the requirement under the Act for an accident by disablement and he is therefore entitled to benefits for the period from October 21, 1985, to November 11, 1985. THE DECISION The appeal is allowed. The Panel finds that the worker suffered an injury by accident on October 4, 1985, arising out of and in the course of his employment and resulting in lost time from October 21, 1985, to November 11, 1985. DATED at Toronto, this 15th day of August, 1988. SIGNED: J. McGrath, M. Meslin, M. Robillard.