APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230029
OBJECTING PARTY:
employer
REPRESENTED by:
eMPLOYER REPRESENTATIVE
RESPONDENT:
worker
HEARING:
VIDEOCONFERENCE – january 26, 2023
HEARD by:
c. goegan, appeals resolution officer
ADDITIONAL ATTENDEES:
employer resource person
employer observer
FEBRUARY 21, 2023
ISSUE
The employer is objecting to the November 10, 2021 decision of the Eligibility Adjudicator allowing initial entitlement to health care and loss of earnings (LOE) benefits for a left knee strain.
BACKGROUND
On October 18, 2021, this then 30-year old truck driver reported to the employer that they felt a pop in their left knee when their left foot slipped while walking up stairs. The worker stopped working the following day, sought medical attention and was diagnosed with a left knee strain.
The worker returned to modified duties on October 27, 2021. They reported re-injuring their left knee that day when they stepped into the back of a truck and their left foot slipped, causing their left knee to give out. The worker stopped working, sought further medical attention and a doctor confirmed the diagnosis of a left knee strain.
In a November 10, 2021 decision, the Eligibility Adjudicator allowed initial entitlement to health care and full LOE benefits from October 19, 2021 to October 26, 2021. The Eligibility Adjudicator also approved ongoing LOE benefits from October 28, 2021. The Eligibility Adjudicator accepted there was sufficient proof that the initial accident occurred as reported by the worker and accepted the nature of the injury completely prevented them from returning to any work for both periods.
The employer objected to the November 10, 2021 decision of the Eligibility Adjudicator and submitted video surveillance recordings of the worker corresponding to the times both incidents occurred. In a January 6, 2022 decision, the Eligibility Adjudicator reconsidered and upheld the allowance of initial entitlement in the claim, as the Eligibility Adjudicator accepted the worker’s descriptions of the accidents and placed little weight on the video surveillance recordings.
The employer objected to the November 10, 2021 decision and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-01 – Adjudicative Process 11-01-08 – Audio Visual Recordings 15-02-01 – Definition of an Accident
November 3, 2008 October 12, 2004 October 12, 2004
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find in favour of the employer and rescind initial entitlement to a left knee injury.
The Employer’s Position
The employer’s representative provided lengthy submissions with the May 20, 2022 Appeal Readiness Form (ARF) and reiterated their arguments during the hearing. While I will not repeat the representative’s submissions in their entirety, I have summarized their arguments as follows:
- The worker provided inconsistent descriptions of the reported October 18, 2021 accident and did not slip, trip or fall on the video surveillance. The representative submitted that as the injury was reported to have occurred while walking up stairs in the absence of a slip, trip or fall, the injury did not arise out of the employment and therefore, did not result from an accident.
- The worker’s description of the reported October 27, 2021 accident was also inconsistent with the video surveillance recording. The representative argued that as with the October 18, 2021 incident, the video surveillance did not demonstrate a left knee injury arising out of the employment.
- The diagnoses for the left knee injuries are the result of pre-existing conditions neither caused nor materially advanced by a workplace accident.
- The video surveillance recordings in this case should be afforded more weight than the worker’s statements concerning the reported accidents, as the worker’s statements in the record are inconsistent with the video recordings.
The Worker’s Position
In their closing submissions, the worker argued the November 10, 2021 decision of the Eligibility Adjudicator is correct as the video surveillance showed them ascending stairs on October 18, 2021 and labouring on the second step when they felt their knee pop. The worker also noted that after their knee popped, they worked a 12-hour shift that caused their knee injury to get worse.
The worker submitted the video surveillance from October 27, 2021 showed them stepping onto the back tailgate of a truck with their right leg and then stepping into the truck with their left, which buckled. They also submitted the view of their left leg was partially blocked in the video. The worker submitted they had done everything asked of them by the doctors and physiotherapist.
The Case File Evidence
An October 19, 2021 Health Professional’s Report (Form 8), from Dr. Alexieva had the diagnosis of a left knee strain. Dr. Alexieva described the mechanism of injury as progressively increasing knee pain at work and was unaware of any pre-existing conditions.
An October 19, 2021 report from a registered nurse at xxxxx Health indicated that while walking up the stairs the previous day, the worker noticed pain to their left knee. The report stated the worker had no known injury and was able to ambulate with pain. The report indicated there was no swelling or bruising noted and stated the worker did not take pain medications.
The Employer’s Report of Injury (Form 7) indicated that between 8:00 and 8:30 am, the worker walked up stairs, heard a “pop” in their left knee and kept walking. The Form 7 indicated security cameras recorded the time the incident occurred and the employer stated it appeared an injury was already present.
An October 27, 2021 Form 8 from Dr. Chuang indicated the worker stepped out of a freezer truck and heard a “pop” in their left knee. Dr. Chuang diagnosed a left knee sprain and indicated the worker’s left knee gave out the previous week. Dr. Chuang indicated the worker was unable to return to work because of difficulty weight bearing.
An October 27, 2021 Patient Triage Record from xxxxx Health indicated the worker twisted their left knee while walking up the stairs at work the previous week. The report stated they slipped while getting into a freezer truck, felt their knee pop and had difficulty weight bearing.
In a November 3, 2021 case file memo, the worker advised a Customer Service Representative they were walking up stairs and slipped on a stair.
In a November 9, 2021 case file memo, the worker advised the Eligibility Adjudicator they were walking up the stairs at work and their left foot slipped off the step, causing them to step down onto the step below. The worker stated they felt a “pop” in their left knee. They stated they stopped for a second, continued up the stairs and the injury got worse. The worker confirmed they sought medical attention the following day and was off work for a week. They stated they returned to work on October 27, 2021 on light duties and slipped going into a truck. The worker indicated they stepped into the back of a truck, their left leg gave out and they stood in the same position until co-workers helped them to a chair. The worker denied any pre-existing conditions or non-work-related injuries.
On the November 19, 2021 Worker’s Report of Injury (Form 6), the worker indicated that on
October 18, 2021 at 8:00 am they were walking up steps when they lost their footing, their left foot slipped and their knee “popped”. The worker stated they returned to light duties on October 26, 2021 and reinjured their knee while stepping into a truck when their foot slipped and their knee “gave out”.
In a case file memo dated January 6, 2022, the worker advised the Eligibility Adjudicator that on October 18, 2021 they felt pain in their left knee in the middle of the staircase. The worker reported they did
not have any knee issues coming into work and were walking normally. The worker stated they did not slip, trip or fall. Their knee just gave out and they continued walking up the stairs.
The Video Surveillance Recordings
On December 6, 2021, the employer submitted two internal video surveillance recordings of the worker.
The first video, time stamped 8:00 am on October 18, 2021 shows the worker entering a building and ascending a small flight of stairs. The worker ascends the stairs by grasping the handrail with their left hand. The worker does not fall or slip, trip or appear to experience any alteration in their gait while ascending the small flight of stairs.
The second recording was time stamped October 27, 2021 at 8:19 am. In the video, the worker picks up two small boxes by grasping straps attached to the boxes and carries them towards the back of a cargo truck. The worker steps down onto a metal loading platform on the back of the truck with their right foot and their right leg appears to give way. The worker drops the boxes into the cargo area of the truck, subsequently turns around and moves to an upright position by leaning against the sidewall of the cargo area and grabs their left knee.
The Worker’s Testimony
The worker testified that they began working for the employer on May 10, 2021 as a delivery driver.
They described the general duties of their job that included delivering various food items and freezers to various customer locations. They confirmed they had worked for the employer for a period of less than six-months when they “tweaked” their left knee at work on October 18, 2021.
The worker testified that they did not fall, slip, trip, or lose their footing while walking up the stairs on October 18, 2021. The worker viewed the surveillance recording showing them walking up the stairs on October 18, 2021 at the hearing and testified that they felt pain in their knee while on the second stair from the bottom as they ascended the small flight. They testified that they thought they just “tweaked” their knee and told their employer later in the day.
The worker acknowledged under questioning that the initial medical reports following the October 18, 2021 incident did not identify a slip, trip or fall; however, they testified they told the doctor that they felt a pop in their knee while walking up the stairs at work. They testified that they had no prior history of left knee or left leg problems before October 18, 2021.
The worker testified that after returning to work following the initial incident, they worked a full day with a co-worker on October 26, 2021. They testified that on October 27, 2021 they slipped on condensation on the floor while stepping into the back of a delivery truck and felt significant pain in their left knee.
The worker also viewed the October 27, 2021 surveillance recording during the hearing and testified that they felt left knee pain when they stepped down onto a metal loading platform. When questioned on the exact moment they felt knee pain, the worker acknowledged that they stepped onto the metal loading platform with their right leg but stated their left foot slipped when they did so.
The worker also testified that they had been involved in a motor vehicle accident prior to the October 18, 2021 incident but did not sustain any injuries in that accident. They also acknowledged having a prior low back injury, but reiterated during their testimony that they had no left leg or knee issues before October 18, 2021.
Initial Entitlement to an October 18, 2021 Accident
According to Policy 11-01-01 (Adjudicative Process), an allowable claim must have the following five points:
- An employer
- A worker
- Personal work-related injury
- Proof of accident, and
- Compatibility of diagnosis to accident or disablement history
When examining proof of accident, decision-makers may consider:
- Does an accident or disablement situation exist?
- Are there any witnesses?
- Are there any discrepancies in the date of accident and the date the worker stopped working?
- Was there any delay in the onset of symptoms or in seeking health care attention?
Policy 15-02-01 (Definition of an Accident) states the definition of an accident includes both a chance event and a disablement. A “chance event” is an identifiable unintended event that results in an injury while an injury itself is not a chance event. A “disablement” includes both a condition that emerges gradually over time or as an unexpected result of working duties.
There is an important difference between an injury that results from a chance event and a disablement. When a chance event results in an injury during the course of employment, it is presumed the injury arose out of the employment (unless the contrary is shown).
In the case of disablement, that presumption does not exist. The evidence must show the injury not only occurred during the course of employment but also that it occurred because of work. The fact that a worker has symptoms at work does not mean the work activities caused the injury or aggravated an underlying condition responsible for the symptoms. It is not enough to speculate on the possibility of a relationship between work and an injury.
I evaluated the October 18, 2021 accident as a disablement, unexpected result of working duties as there was no evidence of a chance event. The worker felt knee pain while walking up stairs on
October 18, 2021 but there were no external factors that resulted in a knee injury.
On the Form 6, the worker initially reported that they were walking up steps when their foot slipped, they lost footing and their knee “popped”; however, they acknowledged during testimony that they did not slip, trip, lose footing or fall while ascending the stairs at work. I find the worker’s testimony is consistent with the video surveillance recording, in which the worker ascends a small flight of stairs on October 18, 2021, and does not fall or appear to slip, trip, lose their footing or experience any alteration in their gait. I also find the worker’s testimony is consistent with the initial medical reporting that indicated the worker experienced knee pain while walking up stairs but did not describe a slip, trip or fall. Therefore, although the worker experienced knee pain while walking up stairs, I find it did not result from a chance event. In my view, walking up stairs is not a chance event and as noted in policy 15-02-01 (Definition of an Accident), an injury itself is not a chance event.
Since the accident is a disablement and not a chance event, the presumption of causation does not apply. Accordingly, the balance of the evidence must establish an injury both occurred in the course of employment and arose out of the employment.
I find the injury occurred in the course of employment. The evidence consistently given by the worker is that he felt a “pop” in his left knee while ascending stairs at work on October 18, 2021 followed by immediate pain. The worker testified that he had no prior history of left knee problems and I found his testimony consistent with the medical evidence in the record that did not establish any prior history of left issues before October 18, 2021. As such, I accept the injury occurred in the course of employment.
While I accept an injury occurred in the course of employment, I do not find that an injury arose out of the employment. The video surveillance recording, the worker’s testimony at the hearing and the initial medical reporting all establish the worker felt left knee pain while walking up stairs at work. The evidence also establishes that the worker did fall, slip, trip, lose his footing or experience any alteration in his gait. In the absence of a fall, slip, trip, loss of footing or an alteration in gait, I find the evidence does not establish the presence of an injuring process that occurred in the act of walking up the stairs that could reasonably explain the “pop” and the onset of left knee symptoms. As I find there is no evidence of a workplace injuring process, I find the left knee injury did not arise out of the employment.
Since the left knee strain did not arise out of an in the course of the worker’s employment, it did not result from an accident (disablement) as defined in Policy 15-02-01 (Definition of an Accident). As the injury did not result from an accident, the five required points for an allowable claim in Policy 11-01-01 (Adjudicative Process) have not been satisfied and the worker does not have initial entitlement for the October 18, 2021 left knee injury.
Entitlement to an October 27, 2021 Accident
With respect to the October 27, 201 incident, the October 27, 2021 Form 8 from Dr. Chuang indicated the worker heard a “pop” in their knee when they stepped out of a freezer truck while the October 27, 2021 Patient Triage Record from xxxxx Health indicated the worker slipped while getting into a freezer truck. As with the October 18, 2021 incident, the worker testified about the October 27, 2021 incident and viewed the video surveillance recording of the incident during the hearing. They testified that they felt pain in their left knee as they stepped forward onto a metal platform on the back of the cargo truck. Under questioning, however, the worker acknowledged that when they stepped on to the metal platform of the truck, they did so with their right leg and not their left.
After confirming they stepped onto the metal platform with their right leg and not their left, the worker testified that when they stepped onto their right leg, their left foot slipped and they felt pain in their knee. In their closing submissions, the worker indicated their left leg was partially blocked from view in the video. After viewing the video surveillance recording of the October 27, 2021 incident, I do not find that the worker’s left foot slipped. In my view, the worker clearly stepped forward onto the metal platform of the truck with their right leg while holding a cardboard box in each hand. When they placed their weight onto their right leg, their right leg buckled and there was no identifiable slip involving the left foot or any discernible unusual movement of the left leg. The worker did ultimately right themselves after their right leg buckled and grabbed their left knee in the video, but there was no discernible slip or unusual movement of the left leg or the left knee.
After considering the evidence in the record, the worker’s testimony and viewing the video surveillance, I do not find that a left knee injury arose out of the worker’s employment on October 27, 2021.
I do not dispute the worker experienced left knee pain while at work. However, I find the evidence does not establish the presence of a work-related injuring process that would reasonably explain the worker feeling a “pop” in the left knee and the sudden onset of symptoms after stepping onto a metal platform and placing their weight onto their right leg. Accordingly, I find the evidence does not establish the presence of a workplace injuring process that could reasonably explain the worker feeling a “pop” in their left knee and the sudden onset of pain on October 27, 2021. Therefore, I find a left knee injury did not arise out of the employment. As a personal work-related injury did not arise out of the employment, the five required points in Policy 11-01-01 (Adjudicative Process) are not satisfied and the worker does not have initial entitlement for the October 27, 2021 left knee injury.
CONCLUSION
I conclude the following:
- Initial entitlement is rescinded. The worker does not have initial entitlement to an October 18, 2021 or an October 27, 2021 left knee injury.
The employer’s objection is allowed.
DATED February 21, 2023
C. Goegan
Appeals Resolution Officer Appeals Services Division