The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 19, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker's right knee injury of January 5, 2004 should be accepted on this claim.

Decision

That the worker's right knee injury of January 5, 2004 should not be accepted on this claim.

Decision: Unanimous

Background

On November 10, 1988, the worker injured his right knee during the course of his employment as a refuse helper. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. The worker was eventually awarded a Permanent Partial Disability (PPD) award because of his knee injury and has permanent physical restrictions.

In early January 2004, the employer's representative advised the WCB that the worker re-injured his right knee while on vacation on January 5, 2004 when he was playing with his son in a swimming pool. As the injury involved his compensable right knee condition, the worker felt that he should be compensated for time loss commencing on January 5, 2004. The employer's representative commented that the worker did have permanent restrictions with respect to his compensable knee but had been appropriately accommodated with duties that respected these restrictions for many years. The employer's opinion was that the recent incident constituted a 'new accident' and one that did not occur at work.

A Doctor's First Report dated January 5, 2004, indicated that the worker dove feet first into the pool injuring his right knee. The physician felt that this was "possibly a recurrence or exacerbation of his old injury". In a progress report dated January 20, 2004, the treating physician stated that the worker's knee symptoms were much improved and the worker could resume his regular duties as of January 21, 2004.

After consulting with a WCB medical advisor, a WCB case manager determined that the incident of January 5, 2004 was acceptable as being an aggravation of the worker's prior compensable knee injury. On March 24, 2004, the employer's representative disagreed with the case manager's position and the case was forwarded to Review Office for consideration.

On April 2, 2004, Review Office determined that the worker's right knee injury of January 5, 2004 should not have been accepted. Review Office agreed that the worker 'aggravated' his compensable right knee injury on January 5, 2004 but that the aggravation was caused by a personal act which was unrelated to work and was not caused by the compensable knee injury of 1988. Accordingly, Review Office felt that the 'aggravation' or new injury occurring on January 5, 2004 was not a WCB responsibility. On January 5, 2005, the worker's union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the worker sustained a compensable injury to his right knee on November 10, 1988. A WCB medical advisor concluded that the compensable incident caused both an anterior cruciate ligament rupture and medial meniscus damage. Permanent restrictions were eventually assigned to the worker as well as a PPD.

On or about January 5, 2004, the worker re-injured his right knee while jumping into a swimming pool from a 5 meter diving platform. Initial adjudication accepted responsibility for the incident as being an aggravation of his prior knee injury. This decision was subsequently appealed to Review Office by the employer, who argued that inasmuch as the re-injury did not arise out of and in the course of the worker's employment then it must be established the further injury is compensable by virtue of WCB policy 44.10.80.40.

The policy purpose is stated as follows: "This policy applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury." A further injury taking place subsequent to a compensable injury will be considered compensable "where the cause of the further injury is predominantly attributable to the compensable injury."

After reviewing all of the evidence as well as the policy, we agree with Review Office and find that the worker did aggravate his right knee injury on January 5, 2004; however, the cause of the further injury was not the worker's right knee condition, but rather, his non-compensable personal act of jumping into the pool. In other words, there is no causal relationship between the worker's recent injury and the original compensable injury.

The worker's right knee injury of January 5, 2004 should not be accepted on this claim. Accordingly, the worker's appeal is hereby dismissed.

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 6th day of June, 2005