The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 9, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 9, 2003 and again on June 10, 2003.

Issue

Whether or not responsibility should be accepted for the claimant's right knee condition; and

Whether or not the claimant is entitled to payment of wage loss benefits beyond June 21, 2002.

Decision

That responsibility should not be accepted for the claimant's right knee condition; and

That the claimant is not entitled to payment of wage loss benefits beyond June 21, 2002.

Decision: Unanimous

Background

In June 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report right knee and lower back soreness which she related to her employment activities as a packer. The claimant indicated that she lifted heavy boxes on a repetitive basis and that she worked on an assembly line where she had to work fairly quickly. Her knee became sore from standing on it all the time and she related her back soreness from lifting and bending as well as cold temperatures in the plant.

On May 28, 2002, the claimant attended her family physician for treatment and was diagnosed with muscle spasm lower back and internal derangement of the right knee. On June 4, 2002, the attending physician noted that the claimant's pain had not improved despite rest and that the claimant now had pain and swelling in her left knee.

In order to adjudicate the claim, primary adjudication contacted the claimant on July 19, 2002 to gather additional information concerning her job duties with the accident employer as well as details regarding her back and right knee complaints and the medical treatment she received. Primary adjudication also contacted the employer to verify the job duties described by the claimant.

In a letter dated July 25, 2002, the family physician stated the following:

"It has come to my attention that the WCB will only be providing compensation to the above mentioned patient until the end of June even though she has not worked until the end of July. She will also only be doing limited duties in August involving working half day.

I have made it clear from the beginning that the primary problem is the patient's knees. Her time off work has paid off as she is much better and can now go back to work. If her symptoms were not evidence enough of work related injuries then the time off work resulting in improvement in her symptoms should be enough."

On August 8, 2002, primary adjudication informed the claimant that the WCB was accepting responsibility for her lower back condition only and for wage loss benefits for the period May 29, 2002 until June 21, 2002 inclusive and final. With respect to her right knee condition, primary adjudication indicated that it was unable to establish that an accident occurred which could explain the derangement in her right knee and that no responsibility could be accepted for any time loss after June 24, 2002 related to this condition.

In a submission dated October 11, 2002, the claimant's union representative requested that Review Office rescind the decision of primary adjudication dated August 8, 2002. The union representative contended that on a balance of probabilities, the claimant's knee problems were indeed related to her work and were therefore compensable. If Review Office concluded that there was sufficient evidence to establish that a pre-existing condition existed, the union representative was of the position that the work caused an exacerbation of that pre-existing condition and that the condition was still compensable.

On November 15, 2002, Review Office confirmed that no responsibility could be accepted for the claimant's right knee condition and that the claimant was not entitled to payment of wage loss benefits beyond June 21, 2002. Review Office made note that the left knee was not mentioned in the initial doctor's report of May 28, 2002. After resting for a week, the physician noted that the claimant had pain and swelling of the left knee that was not present on the initial examination. It was therefore very difficult for Review Office to account for a left knee problem that was not present when the claimant last worked.

Review Office further noted that it was the family physician's position that the claimant's primary problem was her knees and that her knee problem was the reason she was off work. Review Office further noted that the claimant had filed for short term disability benefits with an insurance carrier because of her bilateral knee problems. The claimant was therefore not attributing her knee problems to her work activities at that time. Review Office summarized that it could not attribute the claimant's knee difficulties in a bilateral fashion to the nature of her employment. As the predominate cause of the claimant being off work was her knees, the claimant was not entitled to payment of additional benefits beyond June 21, 2002. On December 4, 2002, the union representative disagreed with Review Office's decision and an oral hearing took place on April 9, 2003.

Following the hearing and discussion of the case, the Appeal Panel requested that additional information be obtained from the claimant's family physician prior to discussing the case further. A report from the family physician dated May 12, 2003 was later received and was forwarded to the interested parties for comment. On June 10, 2003, the Panel met further to discuss the case and took into consideration a submission by the employer's advocate dated May 20, 2003.

Reasons

This case involves a worker who filed a claim for compensation for injuries to her lower back and right knee. The claim for her back was accepted and benefits were paid accordingly, up to June 21, 2002. Her knee problem was held not to be a compensable injury.

Review Office upheld both decisions. She has appealed that to this Commission.

For her claim to be successful, the Panel would have to determine that her right knee problems are causally related to her work, which would entitle her to benefits beyond June 21. We were not able to make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from the claimant, her representative and representatives of the employer. Subsequent to the hearing, we wrote to the claimant's family physician seeking further information.

Pursuant to subsection 4(1) of The Workers Compensation Act, for an injury to be compensable, it must arise out of and in the course of a worker's employment.

The claimant's representative argued that the right knee injury did meet that test. In support of that argument, she noted the reports filed by the physician, who - as noted above in the "Background" section - is of the opinion that the claimant's knee problems are work-related. Both the claimant's representative and her doctor believe that the nature of the work placed considerable strains on her knees.

Counter to this view is the fact that there was no specific incident or accident to which to attribute the injury. The employer argued that her normal duties, which included standing at a conveyor table and moving produce from chest to waist height, were not sufficient to cause the diagnosed ailment - internal derangement of the right knee.

In her testimony before us, the claimant confirmed that her job did not involve excessive twisting or bending of her knees.

In the doctor's view, the fact that the claimant's right knee improved while off work substantiates this opinion. However, it is also noted that, while off work, her left knee became swollen, although no problem with her left knee was noted in the original medical reports.

The Panel has concluded - based on a balance of probabilities - that the claimant's problem with her right knee cannot be causally related to her employment.

An alternative argument was made that her work may have aggravated a pre-existing condition. Were this the case, she would be entitled to benefits for the duration of the aggravation. There had been a suggestion that she might suffer from arthritis in her knees. However, tests conducted to that end proved to be negative.

The claim for a back injury had been accepted and benefits paid to June 21, 2002. These benefits were terminated on the basis of the "Doctor's Progress Report" of June 24, 2002, which reported ongoing knee complaints and restrictions in respect of those complaints, but which made no mention of further back problems or restrictions.

We would note that no argument was presented at the hearing in respect of the claim for the back injury. Both the claimant and the employer focussed on the matter of her knee problems.

In conclusion, we find that responsibility for the claimant's right knee problem should not be accepted and that no benefits in respect thereof should be paid after June 21, 2001.

Thus, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of June, 2003