The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 21, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 21, 2002.

Issue

Whether the claim is acceptable.

Decision

The Panel found that the claim is acceptable.

Decision: Unanimous

Background

The adjudicative facts underlying this appeal require clarification.

There are inconsistencies in the written material regarding the date of the work place injury. More importantly, there has been inconsistent information presented to the medical specialists on the question of whether the claimant experienced difficulties with his injury between the time of the accident and the time of his first visit to the sports medicine specialist. To a large degree, the Panel's determinations hinge upon the question of whether there were ongoing symptoms from the time of the work place injury.

On November 7, 2000, the claimant submitted an application for compensation benefits. He suggested that his right knee condition was related to injuries suffered while he was carrying out his duties as a warehouse worker. The claimant indicated that he was placing food items on a pallet when he stepped onto the riding platform of the jack with his right leg and banged the inside of his right knee on the battery case. A few weeks later his knee swelled up and started to cause pain. He then went to see a physician for treatment. The form suggests that the date of the injury was October 7, 2000.

The employer's report of injury dated November 7, 2000, similarly described the accident. However, the employer suggested that the claimant did not report any accident until weeks later and that he was not at work on the day identified as his injury date.

Further elaboration on the date of the injury can be found in a telephone conversation between the claimant and an adjudicator on January 18, 2001. In summary:

the claimant stated he had no prior knee problems. He was not sure of the exact date of accident but thought it was around September 15, 2000 at around 10:00 p.m. His knee only hurt for a few seconds and then was fine. He continued to perform his regular duties.

his knee did not bother him until October 7¹, 2000 when, after work and for no reason, his knee 'ballooned up'. He went to see his doctor for treatment on the same day on a 'walk-in' basis.

the claimant reported the accident to his supervisor on October 31, 2000. He didn't complain or report to anyone that he was having problems with his knee until he reported the accident on October 31st.

In a subsequent telephone conversation, the claimant indicated he was shopping at a mall when his knee ballooned up.

Although the adjudicator cites the date of the visit to the doctor as October 7, 2000, it appears that the claimant was assessed by a sports medicine specialist on October 4, 2000. At that point in time, he was diagnosed with a meniscal tear.

In the course of his October 4th interview, the claimant indicated that the work place injury had taken place three weeks previously. He noted that he had experienced aching and swelling for a day following the injury and that he had suffered pain since that time with pivoting and stepping.² The claimant was sent for physiotherapy treatments and to an orthopaedic specialist.

A report from an orthopaedic specialist dated November 14, 2000 refers to an accident in September, 2000 and indicates that the claimant Acould have a medial meniscal tear but the mechanism of injury is really not consistent with that, and it is much more likely that he has a bony contusion to the right knee. In a January 2, 2001 report, the orthopaedic specialist noted that the claimant Alikely has a small right medial meniscal tear, possibly some chondromalacia to his medial femoral condyle. A right knee arthroscopy was recommended.

In a decision dated February 1, 2001, primary adjudication stated it was unable to establish that the claimant suffered a workplace injury. It cited the mechanics and diagnosis of injury and the delays in reporting and seeking medical attention. On February 8, 2001, the claimant appealed the decision to Review Office.

On February 23, 2001, Review Office determined that the claim was not acceptable. Review Office agreed with the orthopaedic specialist that the mechanics of injury would not be consistent with the diagnosis involving that of a medial meniscus tear.

Based upon its findings of no continuity of symptoms between September 15, 2000 and October 4, 2000, Review Office was unable to draw a conclusion that the claimant's knee condition at the time of examination on October 4, 2000 was related to the incident described on the claimant's application form for benefits. Review Office did not feel that the signs and symptoms the claimant was suffering on October 4, 2000 while in attendance with his physician were a ramification of the climbing up on the jack incident of September 15, 2000.

In a letter dated June 15, 2001, the claimant's union representative submitted two medical opinions regarding the relationship between the work place injury and the claimant's knee condition.

In a letter dated May 22, 2001, the orthopaedic specialist stated

From the history that Mr. Martin gave me which was documented in my letter of 14 November 2000, I do not think there is any doubt that his knee complaints were directly related to his the work.

Similarly, in a letter dated May 30, 2001, the sports medicine specialist confirmed his opinions that there was a relationship between the injury and the claimant's symptoms.

In her June 15 letter, the union representative clarified that the claimant reported his accident and knee injury to his employer on October 9, 2000 and that he began therapy before his Workers Report of injury form was even forwarded to the WCB.

The union representative also indicated that the claimant's night supervisor was aware the claimant had started with the therapy. In the advocate's view, the claimant trusted his employer to forward his report and the responsibility for the delay lay with the employer. The union representative noted that the claimant did not suffer any time loss as a result of his injury and was troubled by symptoms of numbness and decreased strength for a period of months.

Prior to considering the appeal, Review Office wrote to the attending physicians and obtained further medical opinions dated August 29, 2001 and September 24, 2001.

In its letter to the sports medicine specialist dated July 27, 2001, the Review Office presented the following scenario:

file evidence indicates that the claimant had a bump on his knee which he said hurt for a few seconds and then went approximately 2 1/2 weeks with no symptoms.

The sports medicine specialist confirmed his opinion that the claimant's symptoms were related to the workplace injury.

In its letter to the orthopaedic specialist dated July 27, 2001, the Review Office presented a similar scenario:

after bumping his knee he had no symptoms until he was walking in a mall 2 1/2 weeks post-trauma when his knee suddenly became painful and ballooned up.

In this same letter, Review Office also speculated that it would be difficult to connect the injury of September 15th to the medical findings of October 4th given the no symptom scenario which it had presented.

In seeking these further medical opinions, Review Office did not refer either physician to the information found in the October 4th, 2000 notes of the sports medicine specialist which suggested mild swelling and ongoing pain upon pivoting and stepping.

In a decision dated October 12, 2001, Review Office confirmed its view that the claim was not acceptable based on a review of the new medical evidence. Review Office agreed with comments found in the September 24th letter of the orthopaedic specialist that there was no logical explanation for a 2 1/2 week delay in the commencement of symptomatology if one was to take a position that the mid-September 2000 bang on the knee was the culprit in the production of the symptoms.

On December 7, 2001, the union representative asked Review Office to reconsider its previous decision based upon a further report by the orthopaedic specialist. In that report, dated November 19, 2001, reference was made to inconsistencies in the information provided to WCB and to the physicians. The specialist also noted that Ait is most likely that his symptoms were related to his work-related injury.

On January 25, 2002, Review Office re-confirmed its view that the claim for compensation was not acceptable. In its decision, Review Office made reference to the opinions expressed by the orthopedic specialist in his reports dated September 24, 2001 and November 19, 2001 and to the January 18, 2001 telephone conversation that the claimant had with a WCB adjudicator.

Review Office presented its view that the claimant did not have symptoms for two and a half weeks leading into the incident which occurred while walking in a mall after work. Review Office concluded there was insufficient evidence to warrant a rescinding of its previous decision.

On February 12, 2002, the union representative disagreed with Review Office=s decision and an oral hearing was arranged.

Reasons

At the oral hearing, the claimant testified regarding the accident and its impact upon his knee. When questioned regarding the adjudicator's notes of January 18, 2001, he confirmed ongoing symptoms between the injury and the visit to the sports medicine specialist on October 4th, 2000.

Based upon a review of the record coupled with the claimant's statements during the hearing, the Panel accepts the claimant's evidence that a workplace injury took place on or about September 15th, 2000 and that the claimant suffered continuous mild continuity of signs and symptoms in the time prior to his visit to the sports medicine specialist.

In making its finding, the Panel places particular emphasis on the credibility of the claimant's oral evidence and upon the information provided during the October 4, 2000 appointment with the sports medicine specialist. The information from October 4th, 2000 was the most contemporaneous to the injury.

Based upon this factual finding coupled with the opinion consistently expressed by the sports medicine specialist³ and the opinion of the orthopaedic specialist as expressed in his letter dated May 22, 2001,⁴ the Panel finds a causal relationship between the work place injury and the claimant's symptoms.

Given its rejection of the factual scenario presented to the orthopaedic specialist by the letter of the Review Office dated July 27, 2001, the Panel places no weight upon the opinion expressed by the orthopedic specialist in his report dated September 24, 2001.

The panel accepts the claim.

Footnotes

^[1]A review of the adjudicator=s notes suggests that the number 7 is printed over the number 4.

^[2]The physician's notes reveal the following:

"swelling and aching x 1/7 into thigh (at work) injury - trauma medially 3/52 ago - pain since with pivoting/stepping"

^[3]See in particular, the letter dated May 30, 2001 and the accompanying notes. See also the letter dated August 29, 2001.

^[4]As well as the letters dated November 19, 2001 and November 14, 2000.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of June, 2002