The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

InsAn Appeal Panel hearing was held on August 31, 2005, at the worker's request. The Panel discussed this appeal on September 7, 2005.

Issue

Whether or not responsibility should be accepted for the worker's left knee complaints as being related to the compensable injury of March 1, 2004; and

Whether or not the worker is entitled to wage loss and/or medical aid benefits as a result of the left knee condition.

Decision

That responsibility should not be accepted for the worker's left knee complaints as being related to the compensable injury of March 1, 2004; and

That the worker is not entitled to wage loss and/or medical aid benefits as a result of the left knee condition.

Decision: Unanimous

Background

During the course of his employment on March 1, 2004, the worker reported that he slipped and fell on ice which was covered with a thin layer of snow. He reported injuries to his right wrist, elbow, shoulder, hip, knee and neck. He stated that he "got up and started to fall again and stopped myself". The worker indicated that he continued working from March 1, 2004 until April 13, 2004 but his knee kept getting worse, on and off. He wore a tensor bandage on his knee to help keep his knee straight.

On April 12, 2004, the worker attended a chiropractor for treatment. The diagnosis rendered was an acute sprain of the medial collateral ligament left knee.

On April 13, 2004, the worker sought medical treatment at a sports medicine clinic. The treating physician diagnosed the worker with meniscal/early osteoarthritis of the left knee. On April 26, 2004, the treating physician referred the worker for physiotherapy/athletic therapy with a diagnosis of chondromalacia patella.

On May 17, 2004, a Workers Compensation Board (WCB) adjudicator informed the worker that his claim for compensation was accepted.

In a submission to the WCB dated May 28, 2004, the employer outlined the following concerns regarding the acceptance of the claim:

1. There was no specific accident arising out of and in the course of employment. The worker advised his supervisor on April 13, 2004 that his knee popped a few times while performing his regular duties. The worker worked for six weeks after his original date of accident, March 1, 2004, without complaint or seeking medical attention.
2. "…the actual origin of his condition" - the employer was of the view that non-occupational factors must be considered given the worker was able to work six weeks at full capacity at his regular duties after his original incident.
3. The time loss associated with the claim.

In a telephone conversation with a WCB adjudicator on June 22, 2004, the worker indicated that he injured his left knee as well as his hip, neck, shoulder, right wrist and elbow on March 1, 2004 but only his left knee continued to cause him difficulties.

On June 23, 2004, a WCB adjudicator responded to the employer's submission of May 28, 2004. With regard to the concern that there was no specific accident arising out of or in the course of employment, the adjudicator referred to subsection 4(1) of The Government Employees Compensation Act (the GECA) which indicated that "compensation is payable in respect of personal injury sustained by an accident arising out of and in the course of the employment." The adjudicator further indicated that the medical evidence and the WCB's investigation into the claim did not support the contention that non-occupational factors may have contributed to the worker's injury. The adjudicator also indicated that the worker was entitled to partial wage loss benefits for the periods of April 13, April 21 and April 28, 2004 and May 10, 2004 to May 21, 2004 inclusive.

In a further submission to Review Office dated August 12, 2004, the employer appealed the WCB's decision to accept responsibility for the claim.

In a Review Office decision dated August 20, 2004, it was determined that the claim for injury to the left knee was not accepted and that the WCB was not responsible for treatment of the worker's left knee condition or associated wage loss. In Review Office's opinion, there was insufficient evidence to support that the worker injured his left knee as a result of the March 1, 2004 incident. On December 10, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Panel was asked to determine two issues. The first issue was whether responsibility should be accepted for the worker's left knee complaints as being related to the compensable injury of March 1, 2004. For the appeal to succeed on this issue, the Panel must find, on a balance of probabilities, that the left knee condition resulted from the workplace accident of March 1, 2004. The Panel was not able to reach this conclusion.

The second issue before the Panel was whether the worker is entitled to wage loss and/or medical aid benefits as a result of the left knee condition. For the appeal to succeed on this issue the Panel must first find that the knee injury is related to the workplace accident. As the Panel has determined that the knee injury is not related to the workplace accident, the appeal on this issue is declined.

Evidence and Argument at Hearing

At the hearing it was noted that the claim is being adjudicated under the provisions of the GECA.

The worker attended the hearing with a union representative who observed the proceedings. An interpreter was provided to assist the worker.

The employer was represented by two staff persons including its compensation specialist who made a presentation on behalf of the employer.

The worker called two co-workers as witnesses who provided evidence surrounding a discussion with the worker about his left knee. They confirmed the worker advised them that he hurt his left knee in a workplace accident.

The worker advised that the accident involved two falls. He described the falls as follows:

"I fell backward, landing on my right hand/wrist, which slipped forward, causing me to land on my back hitting my head on the ice.

I stay lying down for almost a minute. I attempt to get up, to try to pick up the mail at the same time because it's everywhere, but I fell down again on my knees. I was of kind of crouched to pick up the mail.

The right and left knee at the same time hit the ice. I hurt my right wrist, my back, my shoulders, my knees, my neck, my hips and my elbow. I was all out of whack. I had my whole body sore after."

He explained that the description of the accident in the green card was not as detailed because he completed the green card in English to accommodate his employer. As a result he did not properly describe the accident and the injury to his left knee.

He explained that after the fall he was sore everywhere. His other injuries were improving but his left knee continued to bother him. He advised that he sought medical attention for his left knee on the advice of his co-workers.

The worker commented on the medical information on the file. He preferred the information provided by the treating chiropractor.

The employer representative submitted that the facts and circumstances surrounding the claim for a left knee injury do not demonstrate that the injury resulted from a workplace accident. The representative noted that the worker did not mention a second fall when he reported the accident and questioned the worker's delay in reporting his left knee problem to his supervisor and in not seeking medical attention sooner. She asked the Panel to uphold the Review Office decision.

Analysis

After considering all the evidence, including the evidence and presentations at the hearing, the Panel finds, on a balance of probabilities, that the worker's left knee condition is not related to the March 1, 2004 workplace accident.

The worker called as witnesses two co-workers to testify regarding their knowledge of the worker's injury and its relationship to the workplace. The evidence centered around a discussion with the worker that took place in the cafeteria. While neither witness could provide a date for when this discussion occurred, the worker advised that it occurred on the last work day prior to the Easter break in 2004, possibly April 9, 2004. One witness was not aware that the worker hurt his knee until the discussion in the cafeteria. The other witness thought he remembered the worker complaining about a sore knee prior to the discussion in the cafeteria. Neither witness was aware that the worker used a brace for his knee. Both witnesses confirmed that the worker stated the injury was work related. The Panel finds the witnesses' testimony to be vague and of little assistance in determining the issue.

At the hearing, the worker gave evidence that the accident involved two distinct falls. This information is first referred to in a letter dated June 20, 2005 from the treating chiropractor to a lawyer acting on behalf of the worker. A copy of this letter with attachments is on the worker's claim file and appears to have been received at the Appeal Commission on August 10, 2005. The attachments appear to be statements signed by the worker. One of the statements is undated and refers to the worker's left knee injury. A second statement is dated June 20, 2005, and refers to the worker falling twice. From a review of the file it appears that this information was not given to the employer when the worker reported the accident or to the WCB when it was adjudicating this claim.

The Panel notes that this description of the accident differs from the description provided by the worker to the WCB in the worker's accident report. In this report the worker described the accident as follows:

"There was ice on the pathway were I was walking. There was a thin covering of snow over it. I slipped and fell to the ground. I hurt my right wrist, elbow, shoulder, hip, knee and neck. I got up and started to fall again and stopped myself." (underlining mine)

The Panel places little weight on the description of the accident contained in the June 20, 2005 statement and repeated at the hearing. The Panel finds that the worker has not provided a credible explanation for the delay in advancing the revised description of the workplace accident. The worker suggested that he did not fully describe the accident due to his limited ability in the use of English. However, at the hearing the Panel found the worker to be articulate, well organized and able to present his appeal with minimal use of an interpreter. The Panel notes the worker had opportunities to explain the accident to the WCB but did not do so. The Panel also finds that the description provided in the June 20, 2005 statement and at the hearing is not consistent with the description provided in the worker's accident report.

With regards to the chiropractor's opinion, the Panel notes that the chiropractor provides an explanation for the delay in development of left knee symptoms. The chiropractor suggested that the delay in left knee symptoms is related to guarding the right side of his body and placing more weight on the left side. "Over time this would cause increasing pain, discomfort and ultimately decrease the function of the joint." This explanation is not consistent with other evidence on the file.

The Panel also finds that the following evidence does not support the position that the left knee injury is related to the March 1, 2004 accident:

• the worker's delay in seeking medical attention and ability to continue working the full duties of his position for approximately 6 weeks after the accident
• the history of injury reported on the "Notice of Injury" form signed by the worker on March 2, 2004 did not refer to left knee or left sided problems.

For the reasons noted above, the Panel finds that the worker's left knee injury is not related to the March 1, 2004 workplace accident. Given the Panel's findings on the first issue, the worker is not entitled to wage loss or other benefits as a result of the left knee injury. The appeal is declined.

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 14th day of October, 2005