Decision #114/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 31, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on May 31, 2004 and again on August 30, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On October 23, 2002, the worker contacted the call centre at the Workers Compensation Board (WCB) to report difficulties that he was experiencing with both knees that he attributed to his employment as an envelope adjuster which included the following job duties: Bending and kneeling on concrete floors; climbing on machines and jumping down from machines; lifting and pulling loaded pallet jacks. The date of accident was recorded as February 1, 2002.

In a memo to the WCB dated October 30, 2002, the employer's production manager identified concerns about the validity of the claim. He advised that the worker had a previous history of injuries to his knees and that the worker's job duties did not require a great deal of kneeling.

On January 7, 2003, a WCB adjudicator spoke with the employer's Lead Adjuster who provided the following information:
  • 99 percent of the worker's day involves basic standing;

  • squatting is done about 5 times per day and would be for approximately 2 minutes at a time.

  • once a week, the worker would squat for about 15 minutes at a time.

  • once every second week, the worker would be required to kneel for about 15 minutes when changing knives on the machine.
In a report dated September 11, 2002, an orthopaedic specialist noted that on August 30, 2002, the worker reported a history of pain and swelling of his right knee, on and off for the last six months. The pain was localized at the lateral compartment of the knee. The specialist noted that the claimant previously underwent a lateral partial meniscectomy of the right knee in 1996 and that a MRI would be arranged to find out if there was any new problem that was ongoing.

A MRI of the right knee was carried out on December 3, 2002. The impression was "Lateral meniscal tear associated with a small parameniscal cyst" and "Suspect small acute chondral injury lateral femoral condyle."

In a memo dated January 7, 2003, a WCB medical advisor made the following comment: "File reviewed re: work activities which I believe is quite sedentary and would not be causing the meniscal tear."

On January 9, 2003, primary adjudication advised the worker that his claim had been denied as a relationship could not be established between his work activities and his right knee difficulties. On February 6, 2003, the claimant appealed this decision to Review Office.

On February 18, 2003, a WCB Review Officer documented a phone conversation that he had with the worker in which the worker expressed concerns that the employer misled the WCB as to the amount of times that he knelt during a shift.

In a decision dated March 14, 2003, Review Office confirmed that the claim was not acceptable. Review Office stated that regardless of the exact amount of kneeling involved during the course of the worker's employment, there was no known incident/accident reported by the worker. The worker admitted that he had not incurred any known injury during the course of his duties to his right knee and so Review Office was unable to conclude that the worker tore his meniscus during his employment activities. This decision was confirmed by Review Office in a further letter dated April 9, 2003.

In May 2003, the worker provided Review Office with new medical information from an occupational health physician dated January 15, 2003. This physician stated, in part, that the worker's symptomatology was likely related to his right lateral meniscus tear and that his work, which required a large amount of kneeling, was a contributing factor.

On May 27, 2003, Review Office asked a WCB orthopaedic consultant to review the file information and to answer several questions regarding the relationship between the claimant's work activities and his present knee status. The orthopaedic consultant commented that:
"The fact that he underwent a partial lateral meniscectomy of the RT knee for a torn meniscus in 1996 is a high risk factor for the development of degenerative arthritis which is now evident in his knee. Also has wt. as a contributing factor. His work may create knee symptoms."
In a decision May 30, 2003, Review Office advised the worker that it was still unable to conclude that the new torn meniscus had arisen during the course of his employment and that its earlier decision would not be rescinded. In January 2004, a worker advisor, acting on behalf of the claimant, appealed Review Office's decision to the Appeal Commission.

Following the hearing and after discussion of the case, the Appeal Panel requested additional information from the worker's treating orthopaedic surgeon. On August 6, 2004, a copy of the surgeon's response was forwarded to the interested parties for comment. On August 30, 2004, the Panel met to render it final decision.

Reasons

As noted in the background, a hearing was convened to deal with the worker's appeal. The worker was represented by a worker advisor and the employer was represented by a staff member. The worker provided detailed evidence on his injury and job duties.

The issue before us was "whether or not the claim is acceptable". For the worker's appeal to be allowed, we must determine that the worker's employment caused his knee injury or enhanced his pre-existing knee condition. We did find that the worker's pre-existing knee condition was enhanced by his employment.

The worker's condition has been diagnosed as a right lateral meniscal tear. The worker had previously torn his right meniscus and had surgery to repair the tear in 1996. The worker reported being asymptomatic for 5 years. The worker advised that there was no specific incident which caused the injury. He advised the symptoms developed gradually. The symptoms occurred when he kneeled or squatted at work. He often had to kneel for extended times on the concrete floor. He asked his employer for knee pads which provided some relief.

We note that when this matter was first considered by the WCB there was conflicting information on the amount of kneeling and squatting involved in the worker's duties. At the hearing the worker provided a detailed description of his duties. He noted that the amount of kneeling and squatting depended on whether the machines were running properly. When they ran well, there was very little kneeling, when they ran poorly, there was significant kneeling. At the hearing the employer representative did not dispute the worker's description of the requirement for kneeling.

From this description we find that the worker's duties involved significant kneeling and squatting. We also note that the worker sought and was supplied with knee pads. This is further confirmation that kneeling was required.

With respect to medical evidence we find on a balance of probability that it supports the worker's claim that his injury is related to his employment.

In arriving at our decision we rely on the opinion of the orthopaedic specialist who examined the worker. On November 24, 2003 the orthopaedic specialist provided the following opinion:
"In my opinion the work activity or duty has definitely enhanced the condition of the right knee more than the uninjured left knee. This is definitely affected by his job: as demonstrated by MRI findings."
This opinion is supported by the opinion of the occupational health specialist who saw the worker in January 2003. He offered this assessment of the worker's injury:
"Mr. [the worker] symptomatology is likely related to his right lateral meniscus tear. Based on history it appears that he has retorn this meniscus as he was asymptomatic for almost five years after his initial operation. The likely cause of the torn meniscus is multifactoral. ...However, his work which requires a large amount of kneeling is also a contributing factor. Finally, his large body mass is also a risk factor for this problem."
We note that the orthopaedic specialist and the occupational health specialist referred to a study published in the Journal of Rheumatology, 2002, 29(3):557-63. This study found an increase in risk for meniscal tears in occupations involving kneeling and squatting. We have reviewed this study and find that it supports the worker's position that his employment was a factor in his right knee injury.

We also note that the WCB orthopaedic consultant acknowledged the role of work in the worker's injury. When asked if the worker's condition is pre-existing, would the job requirements aggravate or enhance the knee conditions, he responded "It might cause the knee to be symptomatic". The consultant also noted that the worker's prior injury and heavy weight were factors in this claim.

In January 2003 a WCB medical advisor commented that the worker's duties were "quite sedentary and would not be causing the meniscal tear." At the time that this comment was made there was conflicting information on the nature of the worker's duties. We have now found that the job involves significant kneeling and squatting and therefore place little weight on this opinion.

As noted above we have found that the worker's pre-existing condition in his right knee has been enhanced by his job activities. In accordance with WCB Policy 44.10.20.10 the WCB is responsible for the injurious result of the accident.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of September, 2004

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