Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100178 Objection By: Employer Worker: Participating Representatives: Worker, Employer Hearing Date: September 23, 2010 Attendees: Worker, Worker Representative, Employer, Employer Representative
Issue
Initial entitlement for a left knee injury
How the Issue Arises
This claim was established for an injury of August 20, 2008. The worker reported that he had been working on a ladder and when he stepped off the ladder and turned to the right, he felt an acute onset of pain in his left knee. The worker indicated that he reported the injury by a voice mail message to his supervisor on the date of injury. The worker sought medical attention at the emergency department on the date of injury. He was diagnosed with a left knee strain. An MRI performed on December 29, 2008 indicated a complex tear involving the posterior horn of the lateral meniscus. The worker had arthroscopic surgery of the left knee on February 27, 2009.
The employer immediately raised concerns regarding this injury. They indicated that the worker was under investigation for misconduct and they believe that the timing of the reported injury was fortuitous and was designed to deflect the pending employer investigation. The employer also advised that co-workers had indicated they had witnessed the worker limping prior to the alleged accident.
Given the immediate reporting, immediate medical attention, and the objective findings on examination, the adjudicator was satisfied that proof of accident had been established. The worker was granted entitlement for the left knee injury, including payment of loss of earnings (LOE) benefits and entitlement for the surgery in February 2009.
Authority References
Policy 15-02-01 – Definition of an Accident
Policy 11-01-01 – Adjudicative Process
Submissions of the Employer
The employer representative argued that the reporting of the injury was designed by the worker to avoid the investigation into the unrelated employment matters. The representative noted that the incident was not mentioned to anybody on the job site on the day in question and that the worker waited until after his supervisor left the site to report the injury. Furthermore, the employer representative noted that the worker’s actions following the injury, such as stopping on the way to the hospital to visit a co-worker were deliberate actions on the worker’s part to establish a claim.
The representative also referred to the employer hearing held in April 20, 2010 and noted that there were many discrepancies in that account related to the reporting of the injury. It was the employer’s position that the worker did not injure his left knee at work on August 20, 2008 and entitlement should be rescinded.
Submissions of the Worker Representative
The worker representative submitted that the employer’s claims were speculation and that entitlement had been granted in this claim based on the factual record. He submitted that the factual record established the worker did have an injury at work on August 20, 2008 and the other matters are not related to the entitlement decision in this claim.
Testimony of the Worker
The worker testified that he injured his left knee while stepping off a ladder on August 20, 2008. He indicated he was working with several co-workers, but he could not recall if he specifically mentioned the injury to the co-workers at the time. He stated that after his shift was over and he was getting changed, he noticed significant swelling in his knee. By that time, everybody had left the job site. The worker testified that he telephoned the supervisor’s office number and left a report of the injury.
The worker testified that he left the job site and intended to go to the hospital. However, he stopped at a co-worker’s home to show him his knee. The worker testified that he stayed approximately five minutes and then went to the hospital. He stated he did this to show his co-worker the injury.
The worker testified that he did not know why his co-workers would suggest he was limping prior to the injury at work. He confirmed that he returned to work on August 15, 2008 after being off work for three months for depression. He stated he had no physical injuries when he returned to work and he performed his regular job duties, which were relatively heavy in nature. He stated he had no knowledge of the employer’s impending investigation until after his injury.
The worker testified that he returned to the job site on August 21, 2008 to make a formal report of the injury. He waited for his supervisor, but left at approximately 9:00 a.m. to seek medical attention. He stated that he was at home getting a sandwich when he received a voice mail message indicating he had been terminated.
Preliminary Matters
The worker representative objected to the employer hearing documents being in the claim file. He noted that the matter had not been decided and was not relevant to the WSIB proceedings.
It was explained to the parties that those documents were already in the file record and could not be removed. Additionally, it was noted that the employer’s objection to initial entitlement was largely based on the worker’s credibility, and as such, they were entitled to introduce evidence related to the worker’s credibility. However, the employer was cautioned to confine their questions arising out of those documents to the reported injury in this claim.
During the course of the hearing both the employer and the worker representative referred to statements obtained from two co-workers that were referred to in the employer hearing/investigation documents. Those statements were not in the file record. The employer submitted those statements to file after the hearing. It was decided to accept them into the record because they had been referred to by both parties at the hearing.
Assessment of the Evidence
The WSIB generally considers proof of accident to have been established where there is immediate reporting of an injury, immediate medical attention/lay off from work, and where the diagnosis is compatible with the history of injury. In this case, the worker reported the injury on the date of injury. There are no significant delays in reporting to the employer. The worker also sought medical attention and was diagnosed with a condition that was compatible with the history of injury described.
The employer’s allegation regarding the timing of the injury is speculative. The objective evidence to support that allegation is largely absent. There are no signed statements on file from the co-workers who are alleged to have witnessed the worker limping prior to the reported accident. There are no co-worker statements obtained by the adjudicator, and the employer elected not to call the co-workers as witnesses. The documentation submitted as evidence of the co-workers’ statements is a transcript of employer interviews. The veracity of that transcript cannot be confirmed. Additionally, by not calling the co-workers as witnesses, the employer has prevented the worker representative from testing the co-workers’ evidence through cross-questioning.
The employer representative argued that the timing of the alleged injury was suspect and that the worker’s actions subsequent to the alleged injury are not consistent with his story. In considering the issue of credibility, the following are considerations:
- Did the worker provide a consistent history of injury?
- Is the worker’s evidence consistent with the other available evidence?
- Are the worker’s actions reasonable in the circumstances?
- Has the worker satisfactorily explained any discrepancies?
- Is the worker’s sworn testimony provided in a straightforward manner and is his demeanour consistent with a truthful person?
There is no doubt that Mr. Bisutti had an injury to his knee. The medical reporting confirms objective findings. The sole question for this decision is whether the diagnosed condition was the result of an accident arising out of and occurring during the course of the worker’s employment, specifically on August 20, 2008.
The worker has provided a consistent history of injury and the employer has failed to provide any objective evidence to refute the worker’s story. Nevertheless, I share the employer’s concerns regarding the credibility of the worker. Firstly, the worker relates an acute onset of pain at work, yet fails to mention it to any of his co-workers or his supervisor. The worker testified that he had no knowledge of the employer’s pending investigation, but he stopped at a co-worker’s home on the way to the hospital in order to establish proof of injury. This would suggest that the worker knew the employer would have concerns with the timing of this injury and that he was likely aware of the pending investigation. He did not satisfactorily explain why he felt it necessary to report to the co-worker to establish his injury, if he wasn’t aware of the employer’s investigation.
The fact that the worker might have been aware of the employer’s investigation does not in itself negate the possibility of an injury at work. That the worker denies this knowledge does, however, speak to the worker’s credibility. Additionally, the worker’s responses to questioning in the April 29, 2010 employer hearing do not have the ring of truth (the worker did not dispute the record as being accurate). The transcript indicates that the worker was asked if he could explain why he was limping prior to the injury. The record reflects that he answered “No”. In response to two questions on the matter, the worker did not deny limping. His answer was simply that he couldn’t explain why. If the worker was not limping prior to the injury, the logical answer is for him to say he was not having any difficulty and didn’t know why someone would say that he was. The answers appear evasive and less than truthful. Furthermore, I found the worker’s demeanour during the appeal hearing also suggestive of less than truthfulness.
Having said that there are concerns with the worker’s credibility, where there is immediate reporting and medical attention, as well compatibility, the onus is largely on the employer to establish that the injury did not occur as claimed. In this case, the employer indicates that they have statements from co-workers that establish the worker had difficulty with his knee prior to the claimed injury. This would be critical evidence, yet the employer representative failed to call any witnesses to corroborate their allegations. As such, I have no alternative but to conclude that on the balance of probabilities proof of accident has been established.
Conclusion
Based on the evidence presented, I find that proof of accident has been established and there is no basis to rescind initial entitlement for the left knee injury.
The employer’s objection is denied.
DATED October 19, 2010
B. Craddock Appeals Resolution Officer Appeals Branch