Highlights of Noteworthy Decisions

Decision 781 22
13/06/2022
K. Jepson - P. Greenside - A. Signoroni
  • Accident (occurrence)
  • Evidence (surveillance)
  • Evidence (videotape)
  • Fracture (leg)
  • Initial entitlement (eligibility)
  • Withdrawal (of issue)

The issues determined in this appeal, as raised by the employer, were the following: whether the worker's initial entitlement for a workplace accident on January 3, 2018 should be rescinded; and, in the alternative, if entitlement for a workplace accident was upheld, whether the Board's recognition that a tibial plateau fracture occurred in the January 3, 2018 accident should be rescinded.

The appeal was denied.
The Panel found that the worker had entitlement for a slip and fall injury. In summary, there was immediate reporting to the employer, immediate medical treatment, diagnoses compatible with a slip and fall (including a knee contusion), and consistency in the ongoing reporting of the accident mechanism. The Panel indicated that all of these aspects of the evidence supported the worker's claim that she slipped and fell on January 3, 2018.
The employer's argument that there was no workplace accident rested on two points: first, the fact that the worker had a significant pre-existing right knee condition and, second, that video evidence of the incident on January 3, 2018 showed that the worker did not actually slip and fall. The employer submitted that the worker went down to the ground in that moment either due to her knee giving way due to the pre-existing condition, and/or to a dizzy or fainting episode (also alleged as a pre-existing condition), or some other unknown cause.
The Panel did not agree with the conclusions regarding the video evidence. It was noted that the video had inherent limitations: the definition was not considered to be good (i.e., it was typical for a monitoring/surveillance video, which could be contrasted with much clearer and crisper commercial video quality such as a film or TV streaming show); it was still dark at the time of the footage (6:30 A.M.); the worker appeared to be wearing dark clothing; the worker appeared to be wearing an overcoat or winter coat, such that precise definition of body areas and outlines was imperfect; the camera was some distance from the actual incident (as was recognized is often the case for this type and quality of monitoring video); and, the speed/rendering/buffering of the video was such that the video did not run entirely smoothly in real time. The Panel noted that all of these factors hampered the viewer's ability to see with precision and clarity the mechanics of the incident. The video was not of sufficiently high quality to allow the Panel to draw clear or even probable conclusions about the more specific "micro-mechanics" of the moment in question. Overall, the video evidence failed to persuade the Panel that the worker did not slip and fall.
The Panel concluded that the employer's assumptions regarding the worker's pre-existing conditions were not warranted by the evidence and remained speculative. The worker therefore retained her initial entitlement for the workplace accident on January 3, 2018.
Furthermore, the Panel concluded that the medical evidence supported the Board's finding that the worker's tibial plateau fracture occurred as a result of the January 3, 2018 slip and fall accident. The worker also retained entitlement for her tibial plateau fracture as a consequence of the workplace accident.