The Nova Scotia Workers’ Compensation Appeals Tribunal has rejected an employer’s appeal regarding a workplace injury claim, affirming that a worker’s ankle injury, sustained on Jan. 14, 2023, occurred on the job and entitles the worker to benefits.
Appeal Commissioner Alison Hickey ruled that the evidence supported the worker’s claim of an injury arising “out of and in the course of his employment.” The employer had argued the injury occurred off-site at an Airbnb where the worker was staying, but Hickey found the injury was more likely to have happened during work hours.
The worker, employed as a labourer involved in demolition and asbestos removal, reported injuring his foot while descending stairs at the job site. He was taken to the hospital on Jan. 15, 2023, where a fracture of the fifth metatarsal in his right foot was diagnosed. Medical reports indicated that the worker had “heard a snap” in his foot while walking downstairs in work boots, according to emergency department records.
Ping pong, Airbnb and alcohol
The employer appealed a Dec. 12, 2023, decision by a Workers’ Compensation Board (WCB) Hearing Officer, which ruled in favour of the worker. The employer, represented by its human resources specialist, contended that the injury occurred off-site at the Airbnb where the worker was staying after his shift. The employer also raised concerns that alcohol may have played a role in the incident.
Testimony from the employer’s HR specialist revealed conflicting accounts of when and where the injury took place. Initially, the worker’s supervisor reported that the worker had injured his foot at the job site.
However, later conversations raised the possibility of the injury occurring while the worker was playing ping pong at the Airbnb after his shift, leading the employer to challenge the WCB’s decision.
Second-hand accounts weakened case
Despite these discrepancies, Hickey found that the employer’s evidence failed to meet the burden of proof required to overturn the original decision. “I am unable to conclude that it is more likely than not that the Worker did not injure himself at work on the 14th,” Hickey wrote. She noted that the employer’s reliance on second-hand accounts, and the absence of key witnesses at the hearing, weakened their case.
While the worker did not participate in the appeal hearing, medical records and witness statements from the original claim were reviewed extensively. The employer’s argument that the worker’s injury was caused by a pre-existing foot deformity was also dismissed. Hickey concluded that while the deformity may have played a role in the worker’s prolonged recovery, it was not the sole cause of the injury.
TERB payments
The tribunal also addressed the employer’s objection to paying Temporary Earnings Replacement Benefits (TERB) for the period between February 21, 2023, and March 6, 2023. During that time, the worker was under medical orders not to return to modified duties, as advised by his treating orthopaedic surgeon, Dr. Leighton. Hickey ruled that the worker’s earnings loss during this period was compensable, based on medical evidence that supported the worker’s inability to perform even sedentary tasks until March 6.
The decision also referenced the employer’s concerns regarding the worker’s conduct after the injury. A disciplinary form submitted as evidence described an incident where the worker allegedly damaged a company vehicle by driving recklessly on Jan. 14, 2023. However, Hickey found the relevance of this incident to be “tenuous” and noted that it did not provide a sufficient basis to question the worker’s injury claim.
Employer’s frustrations acknowledged
In her analysis, Hickey acknowledged the employer’s frustration with the worker’s absence from the hearing and the challenges that presented in cross-examining his version of events. However, she emphasized that both parties faced limitations due to the lack of firsthand witnesses, stating, “It would also have been helpful to have an opportunity to question the individuals whose statements the Employer relies on.”
Ultimately, Hickey concluded that the worker’s injury was more likely than not sustained during his work shift on Jan. 14, 2023. She noted that the mechanism of injury—rolling the ankle while descending stairs—was consistent with the medical diagnosis of a metatarsal fracture and constituted an “accident” as defined by Nova Scotia’s Workers’ Compensation Act.
The tribunal’s ruling means the worker is entitled to workers’ compensation benefits for the injury, including earnings loss for the period when he was unable to return to modified duties. The employer’s appeal was dismissed, and the original decision in the worker’s favour was upheld.
For more information, see 2024-05-AD (Re), 2024 CanLII 90537 (NS WCAT).
