WORKERS COMPENSATION APPEAL TRIBUNAL [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: AND: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND APPELLANT DECISION # 220 Appellant Maureen Peters, Worker Advisor, representing the Worker Respondent Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing October 22, 2015 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island Date of Decision February 10, 2016

2 WCAT Decision # 220 Page 1 of 8 Facts and Background 1. The Appellant was employed with [PERSONAL INFORMATION] as an [PERSONAL INFORMATION]. On May 23, 2014, the Appellant after placing material in a garbage can at his workplace, turned around, tripped and fell, landing on his right hip. 2. After the fall, the Appellant experienced significant pain on his right side, was unable to stand and eventually transported to the Queen Elizabeth Hospital ( QEH ) Emergency Department. The Appellant remained at the QEH receiving a course of pain reduction medication and rehabilitation services until his discharge on June 26, [Appeal Record Tabs 6 and 17] 3. The Appellant filed a new Worker s Report, Form 6 on June 4, 2014 with the Workers Compensation Board (the Board ). [Appeal Record Tab 5] 4. On July 16, 2014, the Entitlement Officer informed the Appellant that his claim for right hip and knee injury was denied. The Board determined there was no causal connection between the Appellant s injury and his workplace duties. [Appeal Record Tab 19] 5. On October 15, 2014, the Appellant submitted a Request for Internal Reconsideration. On December 3, 2014, the request was dismissed, as the Internal Reconsideration Officer ( IRO ) issued a decision IR# [PERSONAL INFORMATION] determining that the act of turning around was not considered a work required motion and therefore, there was an insufficient connection to the employment. [Appeal Record Tabs 23 & 1] 6. On January 2, 2015, the Appellant filed a Notice of Appeal with the Workers Compensation Appeal Tribunal ( WCAT ). [Appeal Record Tab 2]

3 WCAT Decision # 220 Page 2 of 8 Issue 7. Did the Worker suffer personal injury by accident arising out of and in the course of his employment? Appellant s Argument 8. Section 6(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 ( Act ), states that the Board shall pay compensation to any worker who suffers personal injury by accident arising out of and in the course of employment. [Appellant s Factum Tab 2] 9. A definition of accident is provided in Board Policy POL-71 Arising out of and in the Course of Employment : [Appellant s Factum Tab 3] 10. The Appellant relies on the IRO s finding at page 3 of her decision that his injury occurred in the course of employment, and therefore, section 6(4) of the Act applies and it is therefore presumed that the injury arose out of the employment: 6. (4) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. [Appellant s Factum Tabs 1 & 4] 11. The Appellant argues that there is no evidence showing the injury did not arise out of the employment, which is required under section 6(4). Although there is mention in the file that the Appellant has [PERSONAL INFORMATION], it was confirmed that he does not use any aids for walking and does not have a history of falling.

4 WCAT Decision # 220 Page 3 of 8 Without substantive evidence of a non-compensable injury, the Appellant submits that the presumption in section 6(4) cannot be negated. 12. The Appellant referred this Panel to a Nova Scotia Workers Compensation Appeal Tribunal decision wherein the Tribunal held that a worker who twisted her ankle while walking down a hallway had an acceptable claim and noted the definition of accident includes a chance event as follows: The Worker testified that she twisted (rolled) her ankle resulting in the injury. There were no particular hazards, so the accident appears to have resulted from how the Worker stepped a chance event. This chance event occurred as part of ambulating to perform workplace duties, so it arose out of employment there is no need for the Worker to rely on the presumption. [Appellant s Factum Tab 5] 13. The Appellant also refers to a British Columbia Workers Compensation Appeal Tribunal decision, WCAT , which was considered by the IRO but was dismissed on the basis that there was a workplace hazard in that case which contributed to the worker s trip and fall. The Appellant argues that there was no substantive evidence in that case there was any such hazard present. [Appellant s Factum Tab 6] 14. Overall, the Appellant submits that the injury to the Worker was caused by his fall in the course of carrying out employment duties. Without substantive evidence showing the injury did not arise out of the employment, the presumption in section 6(4) applies and the IRO s decision of December 3, 2014 should be overturned.

5 WCAT Decision # 220 Page 4 of 8 Respondent s Argument 15. The Respondent submitted that the Worker s injury was the result of a trip and fall but that there was no evidence linking the injury to an activity or undertaking because of his employment. 16. In the Worker s Report Form 6, the Respondent pointed to the Appellant s description of the accident I was placing material in the garbage can. When turning around I tripped and fell on right hip. Thought pain would go away. So I stayed on the floor for 1 hour 30 minutes. When pain did not ease, co-workers called ambulance. 17. Further, the Employer s Report Form 7, the Employer described the incident as [PERSONAL INFORMATION] lost his balance and fell, striking his hip. 18. The Respondent argues that the Appellant s injury did not arise out of his employment, based on the fact that walking and turning is a motion that is performed both inside and outside the workplace. For that reason, the Respondent submits that the Appellant s act cannot be considered a work required motion, and therefore, not caused by or as a result of his employment. Further, there was no evidence of any workplace hazard that was a contributing factor. 19. The Panel was referred to Decision # (1992), 24 WCATR 106 (Ont.) where a worker suffered a seizure while she was refueling a bus she was driving as part of her employment. She was hospitalized and two days later (during her hospital stay) the worker suffered a giant cerebral aneurysm, which occurred as a result of the first seizure. The worker was denied coverage because the seizure was not caused by the act of refueling the bus. The Board found that the injury was not linked to nor did it originate from an activity undertaken because of the employment. [Respondent s Factum Tab 5]

6 WCAT Decision # 220 Page 5 of Likewise, in the case at hand, the Respondent suggests that the placement of refuse in the garbage did not cause the Appellant to trip and fall, and therefore, is not linked to an activity undertaken because of the employment. The Respondent submits that walking is not an action peculiar to the Appellant s work duties; therefore, it cannot give rise to an accident or chance event. Decision/Analysis 21. A worker s injury or condition is compensable only if the injury or condition arises out of and in the course of his employment, pursuant to Section 6(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 and Board Policy POL-71 Arising Out Of and In the Course of Employment. 22. It is clear that the Appellant suffered an injury on May 23, The Appellant s Form 6 clearly described what occurred on May 23, 2014, I was placing material in garbage can. When turning around I tripped and fell on right hip when the pain did not ease, coworkers called ambulance. Further the Form 6 states that the work he was doing was for the purpose of his employer s business. 23. The Appellant was immediately taken to the QEH and treated for a subtle fracture in his right femur. 24. In IRO Decision # [PERSONAL INFORMATION], the IRO found that the injury occurred on the premises of the employer during work hours, and thus, in the course of employment. However, the IRO was left to consider whether the Appellant s injury arose out of his employment. The IRO found that the act of walking and turning around is a motion performed both inside and outside the workplace and there is insufficient connection to the employment to result in a finding that the Appellant s injury arose out of his employment.

7 WCAT Decision # 220 Page 6 of The Tribunal rejects the Respondent s argument that the event which occurred on May 23, 2014 was not an accident, pursuant to section 1(1)(a) of the Act. The Appellant tripped and fell - this was a chance event, it was occasioned by a physical or natural cause, and it resulted in the Appellant s right hip injury. 26. If an accident occurs in the course of employment (which has already been determined by the IRO), the Tribunal must consider whether there is any evidence to rebut the presumption under section 6(4) of the Act that it also arose out of the employment : 6. (4) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. 27. The Tribunal agrees with the IRO s assessment in Decision # [PERSONAL INFORMATION] that the accident occurred in the course of employment. Board Policy POL 71 Arising out of and in the Course of Employment defines in the course of employment as follows: 3. In the course of employment means the injury must be linked to a worker s employment in terms of time, place and activity. 28. The evidence suggests, in this case, that the injury occurred on the premises of the employer; it occurred in the process of doing something for the employer (taking out the garbage); and it occurred during work hours. 29. Given that the accident is found to have occurred in the course of the employment, the presumption in Section 6(4) applies and the Respondent has the burden of proving that the injury did not arise out of the employment. 30. Board Policy POL-71 defines arising out of employment as follows:

8 WCAT Decision # 220 Page 7 of 8 2. Arising out of employment means an injury that must be linked to, originate from, or be the result of, in whole or in part, an activity or action undertaken because of a worker s employment. 31. Paragraph 3 of the policy states: 3. The following variables must be examined to determine whether an injury arose out of and in the course of employment: whether the injury occurred on the premises of the employer; whether the injury occurred in the process of doing something for the employer; whether the injury occurred during a time period for which the worker was being paid; or whether the injury was caused by some activity of the employer or of a fellow worker. 32. The Respondent argued that the presumption found in Section 6(4) can be rebutted because there was no causal connection between the Appellant s injury and his work duties. Particularly, that the act of walking and turning is not a work-specific duty. 33. The Tribunal finds the Respondent has not presented sufficient evidence to demonstrate that the accident did not arise out of the employment. The Respondent appears to have taken a very narrow view of the issue by attempting to distinguish the act of walking and turning around from the act of placing refuse in the garbage, which was a task the worker performed in the course of his employment. There was no evidence presented to rebut the Appellant s evidence that the activity was performed as part of his work duties. 34. The Tribunal finds that the act of turning around which resulted in the Appellant s injury was linked to, originate from, or be the result of, in whole or in part, an activity or action undertaken because of the worker s employment. That activity was taking out the garbage for the employer. 35. Therefore, this Tribunal rules that the Appellant s injury to his right hip was an accident which did arise out of and in the course of his employment, and thus the Appellant s

9 WCAT Decision # 220 Page 8 of 8 appeal is allowed. This Tribunal orders that this matter be remitted back to the Board for calculation of benefits to be paid to the Appellant. 36. We thank counsel for their materials and submissions. Dated this 10 th day of February, Meaghan S. Hughes, Vice-Chairperson Workers Compensation Appeal Tribunal Concurred: Donald Turner, Employer Representative Gordon Heustis, Worker Representative