The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 14, 2002, at the request of the claimant. The Panel discussed this appeal on November 14, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In February 2002, the claimant filed an application for compensation benefits concerning left knee difficulties that she related to her employment activities as a nanny, in which she would travel up and down stairs to perform her daily chores. The date of accident was reported as January 1, 2000 and the accident was reported to the employer on the same day, according to the claimant.

On March 20, 2002, the claimant spoke with a Workers Compensation Board (WCB) adjudicator regarding her claim. The claimant advised that she was hired to work as a nanny in 1999. Her place of employment was a large, two story home. The baby was on the second story, the kitchen on the main level and the laundry area was in the basement. The claimant was required in order to attend to her duties to climb up and down stairs all day long. The claimant noted that her employer was aware of her knee difficulties but she was told not to bother claiming WCB as the employer wasn't covered. In January 2000, the claimant left her position as her knee, ankle and leg had been bothering her and she couldn't go up and down stairs. The claimant was claiming WCB wage loss benefits for her lost time over the years.

On April 25, 2002, the adjudicator spoke with the employer. The employer was never aware that the claimant was relating her knee difficulties to working at her home until she received a call from the WCB. The claimant worked with the employer between March 5, 1999 to December 24, 1999. On the last day of her employment, the claimant called to say that she could not work anymore as she had just seen her doctor about a knee problem. The claimant never said it was from climbing stairs or that it was related to the employer's house stairs. The employer never took out WCB coverage as she thought that nannies were exempt.

Medical information consisted of a Doctor's First Report dated April 22, 2002 and a progress report dated April 29, 2002.

In a letter dated May 6, 2002, the attending physician noted that the claimant was working as a housekeeper and babysitter in which she had to climb stairs quite a few times a day and that she carried heavy loads of clothes, food and a baby. As a result of this activity, the claimant developed discomfort and pain in her left knee and was unable to climb stairs as of January 2000. The attending physician outlined his examination findings of January 13, 2000 and concluded that the claimant was suffering from traumatic synovitis with the possibility of some arthritic changes. When seen on January 19th, the claimant was advised to avoid climbing stairs and was given a prescription. When seen again on January 24th, the left knee showed more effusion and the claimant was advised to stay away from climbing stairs, to continue with her medication and to restrict herself from walking on straight surfaces. When seen again on February 21st, the effusion was gone and the claimant was doing better.

On May 21, 2002, the claimant advised a WCB adjudicator that she first noticed that there was something wrong with her knee during the summer of 1999 when she was chasing a cat who had a bird in its mouth. She was chasing the cat and squirting water on it in an attempt to get it to release the bird. After this, she began to notice some difficulties with her knee.

In a decision dated June 5, 2002, the claimant was advised by primary adjudication that her claim for compensation was not acceptable as the WCB was unable to establish that her current and ongoing knee difficulties were related to her work activities as a 'Nanny' or that a work related accident occurred. On July 15, 2002, the claimant appealed this decision to Review Office.

On September 13, 2002, Review Office determined that the evidence did not establish that the claimant had sustained a personal injury by accident arising out of and in the course of her employment. Review Office considered the claimant's assertion that her left knee complaints were attributable to repetitive stair climbing in a home where she worked as a nanny between February 21, 1999 to January 21, 2000. The claimant also was of the view that the incident where she was chasing a bird in the latter part of 1999 may have contributed to her left knee problems.

Review Office took into consideration the diagnosis rendered by the attending physician on January 13, 2000 of traumatic synovitis with the possibility of arthritic changes. Based on these factors, Review Office concluded as follows:

• the above diagnosis could not reasonably be attributable to the act of repetitive stair climbing and descent;
  
  
• it was unable to establish that the cat chasing incident occurred. The employer contended no knowledge of any injury at work and the attending physician made no reference to this event in his reports.
  
  
• the claimant admitted not seeking medical treatment for her knee after chasing the cat, and made no mention of this incident to a WCB representative until May 21, 2002 when she reported it to an adjudicator during a telephone conversation.

On September 20, 2002, the claimant appealed Review Office's decision and an oral hearing was convened.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
      
3. an occupational disease

and as a result of which a worker is injured."

When examined by the treating physician, the claimant's condition was diagnosed as a traumatic synovitis of the left knee. The claimant was advised to stay away from climbing stairs or steps, to avoid walking on a straight surface as well as to take prescribed medication. The evidence further confirmed that the claimant suffered from a pre-existing arthritic condition, which was also affecting her left knee.

We find based on a balance of probabilities that the claimant sustained a temporary aggravation of her pre-existing condition as a consequence of her repetitive stair climbing while in the course of her employment. Accordingly, the claim is acceptable.

As an aside, we note that the claimant's injury had improved to the point of recovery by February 21st, 2000 and that subsequent to this date the claimant sustained a non-compensable event, which resulted in further injury to her left knee.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of December, 2002