The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 20, 2005, at the request of the worker's union representative. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In April 2004, the worker filed a claim with the Workers Compensation Board (WCB) for left knee difficulties that he related to his job duties as a warehouse associate. The worker said that in January and February 2004, he started operating a walkie rider in a different stance and that as a result he began to feel uncomfortable with pressure being applied to his knee. He tried to shift his weight to relieve the pressure but couldn't do so and still safely ride the machine.

A Doctor's First Report dated April 21, 2004, revealed that the worker complained of medial pain in his left knee from having to stand on the walkie rider with his feet in an awkward stance. The diagnosis rendered was medial retinaculum strain versus meniscal tear.

On April 23, 2004, the employer provided the WCB with information concerning the worker's work history, a description of accident and details regarding the reporting of the accident. The employer noted that the previous fall/winter, the company retrained all equipment operators to improve safety in the warehouse in compliance with the Workplace Safety and Health Act. The Act required machine operators keep their body within the confines of the equipment being operated. Prior to this training, the worker used to hang his foot off the platform of his walkie rider and now he had to break the routine. The employer confirmed that the worker had complained of having difficulty with keeping his feet on the platform of his machine without them hanging over the edge. He was instructed to experiment with his stance as he needed to keep his body within the machine parameters. In March 2004, the worker advised the employer that his knee was bothering him because of the new stance. The employer advised the worker to adjust his stance and to find a more comfortable position. In April 2004, the worker again told the employer that the new stance was bothering his knee.

On May 6, 2004, the worker told a WCB adjudicator that he had been working at his position for 7 or 8 years. He stated that his symptoms began when management changed his stance with respect to the machines by his having to turn his knee into the machine. He stated that his back started to bother him as well. He was told by management to try another type of stance. The new stance placed a lot of pressure on his knee and it started to cause him problems. The worker noted that a lot of his co-workers were also having the same symptoms. He stated that he played baseball and hockey and that he was seeing a surgeon on May 11, 2004 to assess the need for surgery.

In a May 10, 2004 decision, the WCB denied responsibility for the claim as the adjudicator was unable to establish a cause and effect relationship between the meniscal tear diagnosis and the accident history provided by the worker.

On June 2, 2004, the worker's union representative appealed the above decision to Review Office. The union stated, in part, "…Mr. [the worker] clearly described the changes to his work practices and how those changes affected his stance. The changes, albeit for the benefits of the workers, led to the development of low back pain. He changed his stance again and found the knee was affected by both the stance and the movements involved in doing the work. There is simply no evidence to suggest anything else caused his knee problems."

In a June 22, 2004 decision, Review Office determined that the worker did not experience a personal injury by accident arising out of and in the course of his employment. Review Office's decision was based on the following factors:

• there was no evidence to show that the worker's left knee problems began with the immediate change of his stance in 2003;
  
  
• the worker's "…having difficulty keeping his feet on the platform of his machine without them hanging over the edge" did not qualify as an accident under The Workers Compensation Act (the Act).
  
  
• the worker did not see a doctor until April 2004 which was 3 months following the alleged onset of symptoms.
  
  
• the worker was in a hockey tournament, playing a forward position, on March 19 and 20. The tournament was immediately before the worker's first report of a left knee injury to his employer on March 24, 2004.
  
  
• a 'change in stance' was not an accident and these mechanics would not cause a meniscal tear. The worker's actions of playing hockey was, on balance, much more likely to have resulted in a meniscal tear than a 'change in stance'

On September 28, 2004, the worker's union representative appealed the above decision to the Appeal Commission. On January 20, 2005 an oral hearing took place.

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."

As the background notes indicate, the worker is an operator of a piece of equipment known as a "Walkie Rider". In order to comply with workplace health and safety legislation, the worker including other employed operators were required to change the way in which they ran their machines. Specifically, the legislation required the machine operator to keep his or her body within the confines of the equipment. The worker experienced considerable difficulty keeping his feet on the platform of his machine without them hanging over the edge. He was obliged to stand on the machine which in effect forced him to hold his foot in external rotation while driving the machine. He found that this new safety initiative affected his knee both by the stance and the movements involved in doing his work. As a consequence, he developed progressive pain over time together with associated swelling.

In a letter dated August 27, 2004 to the claimant's union representative, the treating sports medicine specialist provided the following opinion with respect to the worker's knee difficulties:

"The characteristics of this meniscal tear are in keeping with a degenerative process. It does not appear that Mr. [the claimant] sustained one specific traumatic event to cause his meniscal tear. It is well understood that some meniscal tears are on a chronic wear and tear basis. It is possible that the repetitive external rotation created sheer forces which may have created a meniscal tear or alternatively other factors created degenerative changes which created a tear. The activity of externally rotating the knee and then sustaining the bumping forces of the machine may have made this meniscal tear and degeneration symptomatic."

At the hearing, both the employer and the union representative were in agreement with the description of the manner in which the worker changed his stance and body position on the machine. We carefully examined the worker's evidence regarding his foot placement on the machine and find that the particular stance adopted by the worker would indeed place constant rotational stresses on the knee as described by the treating sports medicine specialist and that this would result in causing an aggravation to the worker's pre-existing degenerative knee condition.

After having considered all of the evidence, we find, on a balance of probabilities, that the worker sustained an injury to his knee, which arose out of and in the course of his employment. The definition of an accident under the Act having been satisfied, the claim is therefore acceptable. Accordingly, the worker's appeal is hereby allowed.

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 3rd day of March, 2005