Highlights of Noteworthy Decisions

Decision 1601 21
J. Dimovski - C. Sacco - Z. Agnidis
  • Arising out of employment (common activity)
  • Chance event (interpretation)
  • Preexisting condition (knee condition)
  • Presumptions (entitlement)
  • Initial entitlement (eligibility)

The worker claimed initial entitlement to benefits for a left knee injury while in the course of employment on September 8, 2011.

The Panel found that the worker's testimony about the injuring process was not reliable and preferred instead to rely on the worker's prior statements made to the Board and employer. Based on this, the Panel concluded that the worker felt left knee pain while walking in the course of his employment.
The employer noted that there is Tribunal case law which supports that "walking, in and of itself does not constitute a chance event" accident. Without a chance event accident, the Tribunal has concluded that there is no basis to apply the presumption set out in section 13(2) of the WSIA (see Decision No. 2471/10).
The Panel chose to follow the approach as set out in Decision No. 2471/10, subject to the following clarification. The Panel noted that the definition of "chance event" set out in the WSIA differs from the definition provided under Board policy. Under the WSIA, "chance event" is described as an "event occasioned by a physical or natural cause", whereas under Board policy, the term is defined as "an identifiable unintended event which causes an injury". In the Panel's view, an injury incurred at work while walking or through performing a commonplace activity in the course of employment would be sufficient to meet the definition of a chance event accident as set out under the WSIA. As a result, the section 13(2) presumption would apply in such claims. However, the presumption provided by the WSIA can be rebutted. This is consistent with Decision No. 1293/20.
The Panel noted that while the question is reversed in a presumption situation, a decision-maker must still decide whether it has been established on a balance of probabilities that the worker's injury did not arise out of his employment. The Panel found that the worker's left knee pain had occurred while walking on a smooth and mostly level surface.
The worker's representative submitted that the worker's pre-existing condition put him at risk of harm, especially given the physical nature of his job. It was submitted that the thin-skull doctrine should be applied in this case.
As noted above, the Panel acknowledged that there is a presumption in favor of entitlement in this appeal. Ultimately, however, the Panel was satisfied that the preponderance of evidence supported that the worker's injury was not due to a work-related injuring process, and the presumption was rebutted on a balance of probabilities. The Panel concluded that there was nothing about the worker's walking on the day in question which supported that the workplace or his job duties significantly contributed to the onset of injury. The worker had been walking on asphalt on ground that was essentially level. More importantly, there was no medical opinion of significance in the case materials which endorsed a work-related injuring process.
The Panel determined that the worker's symptoms were not due to a work-related injuring process, but consistent with the nature of the worker's non-compensable pre-existing history of knee complaints. The presumption that the worker's injury arose out of employment was rebutted. It was noted that the worker's symptoms could fairly be assessed as evidence of the disabling nature of the worker's pre-existing condition. As such, the thin-skull principle would not apply, nor would the Board's aggravation policy as previously claimed by the worker.
The appeal was denied.