The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 4, 2000, at the request of the claimant. The Panel discussed this appeal on October 4, 2000.

Issue

Whether or not the claimant should be compensated for time loss from work from January 15, 1993 to March 7, 1993; and

Whether or not responsibility should be accepted for the left knee surgery of August 30, 1995 including associated time loss from work.

Decision

That the claimant should not be compensated for time loss from work from January 15, 1993 to March 7, 1993; and

That no responsibility should be accepted for the left knee surgery of August 30, 1995 including associated time loss from work.

Background

On April 10, 1992, the claimant injured his left knee while using a pry bar to close the door on a train car. On the same day, the claimant attended a local hospital for treatment and was diagnosed with a bruised left knee. X-rays of the left knee showed no fracture or other traumatic sequelae. The Workers Compensation Board (WCB) accepted the claim and the claimant was paid 4 days of time loss benefits for the time he missed from work.

On March 26, 1993, the claimant advised a WCB adjudicator that he has had trouble with the left knee since the April 1992 compensable injury. On October 26, 1992, the claimant said that he sustained another injury at work in which he stepped in a hole and twisted his left ankle, which later led to back difficulties. A claim with the Saskatchewan WCB was filed.

Medical documentation consisted of a progress report from an Alberta physician dated February 16, 1993. The physician noted that the claimant's knee seemed to ache a bit but he was moving it quite well.

On April 22, 1993, the attending physician noted that the claimant was seen on May 4, 1992, May 25, 1992 and June 22, 1992 for his left knee condition. On December 17, 1992, the claimant was complaining of left patella pain with slight swelling. A x-ray showed swelling in front of the patella and all else was normal. A diagnosis of prepatella bursitis was made and on January 20, 1993, the knee was aspirated and a tensor bandage was applied. The claimant was advised to do lighter duties.

The physician further indicated that the claimant was again seen for his knee complaints on January 21, 22, and 25, 1993 and February 1, 1993, March 3, 1993 and April 16, 1993. The claimant's knee was improved but he still complained of pain. No positive findings were found. The physician thought that the bursitis was the result of the injury.

In a decision letter dated May 5, 1993, the claimant was informed that the Manitoba WCB was unable to attribute his further left knee difficulties to his 1992 bruised left knee. The letter stated that according to the attending physician, the claimant was suffering from bursitis, which in his opinion did not result from his 1992 injury.

In 1995, the claimant requested compensation benefits as he was undergoing left knee surgery, which he attributed to the April 1992 compensable accident. Medical information was obtained from the attending specialists which showed that the claimant underwent a left knee arthroscopy on August 30, 1995 and the pre-operative diagnosis was a torn medial meniscus left knee joint.

On January 18, 1996, after consulting with a WCB medical advisor, the claimant was informed that it was the opinion of Claims Services, that there was no medical evidence to support a cause and effect relationship between the compensable injury and the current diagnosis of a torn medial meniscus.

On December 13, 1996, the case was considered by Review Office following receipt of an appeal from the claimant. The Review Office made the following determinations with respect to the claimant's appeal:

• that no further responsibility would be assumed for the ongoing difficulty experienced by the claimant with respect to his left knee and injuries sustained in April 1992;
• that the claimant would not be compensated for time loss from work on January 15, 1993 to March 7, 1993, and from August 30, 1995, until recovered from the surgical procedure; and
• that responsibility would not be assumed for the surgical procedure of August 30, 1995.

When rendering its decision, Review Office noted that the claimant sustained a bruised left knee when injured on April 4, 1992. In October 1992, the claimant filed a claim with the Saskatchewan WCB as a result of an injured ankle and injuries to his lumbar spine. The claim was subsequently denied by the Saskatchewan WCB. The claimant then requested that the Manitoba WCB accept responsibility for time loss from work on January 15, 1993, to March 7, 1993, as a continuation of the injuries sustained on April 10, 1992.

Review Office determined that the claimant was not disabled by reasons of the injuries sustained on April 10, 1992. The diagnosis provided was a pre-patella bursa (bursitis) which was normally the result of multiple injuries or contusions to the knee. The April 10, 1992, injury was a direct insult to the knee, which required the claimant to be off work for a total of four days. The knee was bruised only with no other identifiable damage.

Review Office quoted Section 6(3) of The Workers Compensation Act (the Act). Review Office stated that by claiming in Saskatchewan, the claimant waived his right to payment of benefits from Manitoba with respect of any injury he may have sustained on October 7, 1992.

With respect to the surgical procedure, Review Office could not find a cause and effect relationship between the injury sustained April 10, 1992 and difficulty the claimant may have experienced after October 1992 nor with respect of the arthroscopic surgery in August 1995. On March 2, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.

Following the oral hearing, the Panel met to discuss the case and requested that additional information was required prior to discussing the case further. Specifically, the Panel requested that additional information be obtained from the treating orthopaedic surgeon. A response was later received from the surgeon dated December 1, 2000, and was distributed to the interested parties for comment. On December 19, 2000, the Panel met to render its final decision.

Reasons

The panel met to consider an appeal, by the claimant, of a decision by the Review Office, dated December 13, 1996. That decision confirmed an earlier decision to deny the claimant benefits.

Two issues were to be determined in this appeal: whether or not the claimant was entitled to wage loss benefits from January 15, 1993 to March 7, 1993; and whether or not responsibility should be accepted for the surgery performed on his left knee on August 30, 1995.

The claimant contends that these issues arose out of a compensable injury suffered by the claimant on April 10, 1992. On that date, the claimant was attempting to open the door of a rail hopper with a large pry bar, when he slipped, the bar flying in the air and coming down on his left knee. The claimant was off work until April 20th; and received wage loss benefits for the time off.

For the first issue to succeed, it must be determined that his inability to work during the period in question was due to a recurrence of the effects of the April 1992 injury. This is covered by WCB policy 44.10.20.50, which states that wage loss benefits will be paid if such a recurrence occurs. This policy defines recurrence as a disability directly related to the earlier compensable injury, which results in a loss of earning capacity.

We find that the first issue does not succeed, because the definition of recurrence is not met.

The claimant was off work for the period from January 15 to March 12, 1993 but we are of the view that, on a balance of probabilities, the evidence does not support this absence from work being due to a recurrence of the April 1992 injury. The preponderance of evidence indicates that there were a number of other factors which contributed to the claimant's inability to work.

We note that the claimant had a subsequent workplace accident on October 7, 1992, in Saskatchewan, which resulted in an ankle sprain and pain to his back. This claim resulted in lost time on a few occasions, until December 31, 1992, when the Saskatchewan WCB informed him that they would pay no more benefits on this claim. He subsequently claimed benefits from Saskatchewan for the period January 22 - March 4, 1993, much the same period as involved in this claim, on the basis of continuing back pain. In June 1993, the Saskatchewan WCB denied this claim. On appeal, the Saskatchewan Appeals Committee upheld this decision, in March 1994.

We also note that there were other non-compensable personal factors that removed the claimant from the workforce for part of this period.

While the problems the claimant experienced with his knee in January 1993 may, arguably, have been directly related to the injury of April 1992, we find that there was no resulting loss of earning capacity. The claimant's evidence is that his knee swelled up more or less spontaneously. His knee was immediately treated on January 20, 1993, when fluid was drained from the knee. The claimant was deemed able to return to light duties the next day.

We further note that - in respect of his knee injury - none of the medical practitioners, whom the claimant was seeing, directed that he not return to work, or imposed restrictions on his ability to perform his functions. At the time of the initial injury, the claimant was able to return to full duties 10 days after the incident. In January, after the knee was drained, he was deemed able to return to light duties the next day. It must be pointed out that, at this time, he was already working at modified duties due to the back/ankle injury incurred in October 1992.

Therefore, on the first issue, we find that there was no recurrence of the injury which led to a loss of earning capacity during the period of time considered by this appeal.

For the second issue to succeed, it must be determined that there is a causal relationship between the compensable injury and the medical problems which necessitated the operation.

The diagnosis at the time of the original compensable injury was that he had sustained a bruised left knee. An x-ray, taken on the day of the injury, showed "no abnormality in bone, joint or soft tissue structures." The operation performed in August 1995 repaired an incomplete inferior surface tear of the posterior horn of the medial meniscus.

After reviewing the mechanism of injury and the nature of the surgical findings, we find that the medical evidence does not, on a balance of probabilities, support a causal link between the compensable injury of April 1992 and the August 1995 knee surgery. As such, we would confirm the Review Office's decision to deny coverage of the claimant's surgery.

Accordingly, the claimant's appeal on both issues is denied.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of January, 2001