The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker submitted claims for a right knee injury and a bi-lateral shoulder injury. The worker injured his right knee at work on May14, 2002. His claim was accepted and wage loss benefits were paid. The wage loss benefits were subsequently discontinued as the WCB (Workers Compensation Board) found that the worker had a pre-existing degenerative condition and that ongoing problems were not related to the work injury.

In December 2004, the worker filed a claim for a bilateral shoulder condition which he attributed to a workplace accident in July 2002. The claim was not accepted by the WCB.

The worker appealed both WCB decisions. An appeal panel hearing was held on June 14, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on June 14, 2006.

Issue

May 14, 2002 claim:

Whether or not the worker's ongoing right knee problems are related to the May 14, 2002 compensable injury; and

July 22, 2002 claim:

Whether or not the claim for a bilateral shoulder injury is acceptable.

Decision

May 14, 2002 claim:

That the worker's ongoing right knee problems are not related to the May 14, 2002 compensable injury; and

July 22, 2002 claim:

That the claim for a bilateral shoulder injury is not acceptable.

Decision: Unanimous

Background

May 14, 2002 claim:

On May 14, 2002, the worker bumped his right knee against a hook on a crane during his employment activities as a heavy equipment operator. Following the incident, the worker noticed that his knee was sore but he continued working over the course of the week. On May 21, 2002, he had difficulty climbing a set of stairs and later noticed that his right knee was swollen. On the advice of his employer, he went to a hospital and was given a tensor bandage along with medication and was told to stop working.

X-rays taken on May 22, 2002 revealed a joint effusion and minor marginal spurring affecting three compartments of the knee although the joint spaces were well preserved. No fracture was identified.

On May 22, 2002, the attending physician reported that the worker's right knee was swollen and there was pain with flexion and internal rotation.

The claim for compensation was accepted based on the diagnosis of right knee contusion secondary to a blunt trauma and wage loss benefits were paid to the worker from May 22, 2002 to June 19, 2002 inclusive and final.

In a chiropractor's progress report dated August 30, 2002, it was noted that the worker complained of a swollen right knee especially after walking stairs. The diagnosis rendered was chronic infrapatellar tendonitis.

In September 2002, the worker informed the WCB that he was treated by an orthopaedic specialist on July 11, 2002 and was authorized to stay off work until July 22, 2002. He then returned to light duties for seven days but had to leave early because of knee pain and swelling. He indicated that no new accidents occurred during this period.

On September 23, 2002, the worker was informed of the WCB's position that he had recovered from his compensable injury, a bruised right knee, and that his current right knee difficulties were due to a pre-existing condition unrelated to his compensable injury.

In a submission dated December 23, 2002, which included a medical report dated December 9, 2002, a worker advisor contended that the May 2002 compensable injury aggravated the worker's pre-existing knee condition and that he was therefore entitled to further benefits.

On December 9, 2002, an orthopaedic specialist opined that the most likely diagnosis resulting from the May 2002 accident was a contusion to the medial side of the right knee. He noted that the worker had a pre-existing condition of early osteoarthritis of the right knee and that he was seen in October of 1998 with early osteoarthritis of both knees, the right being worse than the left. Recent x-rays taken after the accident demonstrated early degenerative changes with a spur on the superior pole of the patella and some mild narrowing of the medial joint space. The specialist indicated that most of the worker's present symptoms were now due to the early osteoarthritis that he had in the knee and he could possibly have a degenerative medial meniscal tear as well. An MRI was ordered to determine whether or not the worker had a degenerative meniscal tear.

An MRI examination took place on March 7, 2003. There were tears reported in the medial and lateral menisci. There was chondromalacia and osteoarthritis of both the medial and lateral femoral compartments. A grade 1 MCL sprain was also identified.

In a letter to a WCB medical advisor dated August 26, 2003, the treating orthopaedic specialist stated, "You asked my opinion as to whether 'applying strong pressure to a brake mechanism of a boring machine' would have any significance with respect to his right knee. Apparently this was an injury that occurred on May 15, 2002. The problem indicated on the MRI scan of degenerative tears of both menisci and osteoarthritis in both medial and lateral compartments would be aggravated by this type of a mechanism. It clearly would not have caused the problem and in my opinion, it would be highly unlikely that it would enhance the problem of a degenerative knee but it certainly could enhance the symptoms."

A right knee arthroscopy was performed on September 26, 2003.

On December 7, 2003, the worker's representative was advised that in the opinion of Rehabilitation & Compensation Services, there was no ongoing causal connection between the worker's further time loss from work and ongoing medical restrictions that were related to the May 14, 2002 compensable injury.

Prior to considering the worker's appeal, Review Office obtained an opinion from a WCB orthopaedic consultant and obtained a report from the orthopaedic specialist who had treated the worker on July 11, 2002. The specialist indicated in this report that the worker has pre-existing degenerative changes in his right knee. He sustained soft tissue contusion to the right knee on May 14, 2002, and had a partial temporary aggravation to his right knee pre-existing degenerative changes.

On July 30, 2004, Review Office confirmed that the worker's ongoing right knee problems were not related to his compensable injury and that wage loss benefits should be covered to July 19, 2002 inclusive and final. In reaching these decisions, Review Office indicated that it agreed with the WCB orthopaedic consultant that the worker's May 2002 knee injury could reasonably have been prolonged due to the pre-existing condition found in his knee. Review Office indicated that the worker should receive benefits to July 19, 2002 based on the opinion expressed by his treating orthopaedic consultant dated July 11, 2002.

July 22, 2002 claim:

On December 1, 2004, the worker filed a claim for bilateral shoulder problems which he attributed to an accident that occurred in July 2002 when he climbed onto a crane and lost his balance, due to severe right knee pain. Contact was made with the accident employer however, the accident employer had no knowledge of an injury occurring at work in July 2002.

Medical information showed that the worker was diagnosed with a right sided rotator cuff tear and rotator cuff impingement on his left.

In a January 14, 2005 decision, Rehabilitation and Compensation Services advised the worker that it was unable to establish a relationship between his current condition and an accident occurring at work. The decision was based on the rationale that the worker delayed in reporting his accident and it was felt that his current and ongoing problems were likely related to pre-existing changes within both his shoulders.

On June 30, 2005, a worker advisor appealed the January 14, 2005 decision on the worker's behalf. It was the worker's position that he injured his shoulders while compensating for his severe knee pain when climbing up and down the crane he was operating. It was contended that there was a cause and effect relationship between his bilateral shoulder condition and his work duties in the construction industry.

The Review Office considered the case on January 5, 2006, at the request of the worker advisor. Review Office confirmed that the claim was not acceptable as it could not establish that an accident as defined in subsection 1(1) of The Workers Compensation Act (the Act) had occurred. Review Office stated there was no evidence on file to support that the worker sustained an accident on July 22, 2002 or that his bilateral shoulder difficulties were related to his work in the construction field as he did not make any ongoing complaints regarding his shoulders and his delay in seeking medical treatment for approximately 16 months.

On February 9, 2006, the worker advisor appealed Review Office's decisions made on both the worker's bilateral shoulder claim and his right knee claim and an oral hearing was arranged.

Reasons

Worker's Position and Evidence at Hearing regarding the May 14, 2002 Claim:

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker answered question posed by his representative and the panel. The employer did not participate in the hearing.

The worker described the May 14, 2002 accident. The worker explained that while working as a drag line operator, he struck his knee against a sharp hook in the hallway to the operator's cab. The worker advised that he sought medical care and that an x-ray was taken but that his physician did not explain the injury to him. He states that he saw a chiropractor who advised that he could not repair the knee problem. The worker advised that he had surgery in 2003 but that his knee "improved very little". He had further surgery in 2006.

When asked why he believes his current knee problem is related to the May 14, 2002 accident the worker replied:

"Well, the severity of the strike or blow on there, it had to strike something on the inner side. I think one of the doctors said sometime what they called it, it must have done damage in there and, well, since that bang it's stopped me from doing any reasonable work or anything, I just suffer with pain all along."

The worker acknowledged that he had started to see doctors in 1998 for his knees. He stated that he had some soreness but that it did not last very long and that he worked two years after that.

The worker's representative submitted that the worker's right knee condition was enhanced by the May 14, 2002 incident. She noted the worker's evidence that he was performing his full regular duties as a heavy equipment operator prior to the May 14, 2002 accident and that he has not returned to his pre-accident status and duties since the accident.

Analysis of the May 14, 2002 Claim:

The panel has considered all information including the evidence and argument provided at the hearing and finds, on a balance of probabilities, that the worker's ongoing right knee problems are not related to the May 14, 2002 compensable injury.

In making this decision the panel relies upon the following:

- The evidence that the worker has had a degenerative condition in his right knee since as early as 1998. In a report dated October 7, 1998 an orthopedic specialist noted that an x-ray demonstrated that the worker had mild osteoarthritic changes of the right knee, particularly of the medial compartment.

- The opinion of an orthopedic specialist who examined the worker on July 11, 2002. This specialist noted that x-rays dated July 11, 2002 showed degenerative changes in the right knee. He commented that the worker "…sustained soft tissue contusion to his right knee on May 14, 2002, and had a partial temporary aggravation to his right knee pre-existing degenerative changes. His progress and recovery have been satisfactory. The prognosis is good. I expect no permanent impairment and no sequelae to his right knee from the effects of this accident." The specialist cleared him to return to his usual duties on a full-time basis in a further week or two.

- The opinion of a WCB medical consultant in a memo dated March 24, 2004 that the "MOI could not, on balance, have accounted for the claimant's multiple degenerative problems."

- The opinion of a WCB medical consultant in a memo dated August 5, 2004 that the mechanism of the compensable injury which was a direct blow (contusion) to the knee would not cause a flap tear of the medial meniscus.

The panel finds that the worker's ongoing right knee problems are not related to the May 14, 2002 workplace injury.

Worker's Position and Evidence at Hearing regarding the July 22, 2002 Claim:

The worker acknowledged that he had his problems with his right shoulder before the 2002 claim but that he did not have any problems with his left shoulder.

The worker was asked about the July 2002 incident.

"Q. And you were still having some difficulties with your right knee?

A. All the time, yes.

Q. So you were climbing on the equipment and this is when you injured your left shoulder?

A. My left shoulder.

Q. How about your right shoulder?

A. Well, it was always.

Q. Always, okay.

A. Always bothering me.

Q. So did it get worse with climbing on and off the equipment?

A. Well, sure it get worse."

The worker advised that he saw his family physician after the injury. When asked why the physician's records show that he first saw the worker for this injury in November 2003, over a year after the incident, the worker commented that the record is "wrong." He also indicated that he reported the injury to his employer.

The worker was asked why he waited until December 2004 to file a claim with the WCB. The worker responded:

"Well, I was confused and I was already - - I fell in a big depression all along, through the time, then I went to - - I was looking for another doctor and the new doctor, when I found him, I explained that and he seen this and he said, 'There should be a report made'. I said, 'I can't remember'. He said, 'Well, make one now anyway'."

The worker's representative advised that it is the worker's position the bilateral shoulder condition was a result of injuries that he sustained while at work in July 2002 and that in accordance with subsection 4(5) of Act, there is a presumption that the injuries did occur in the course of the worker's employment.

Analysis of the July 22, 2002 Claim:

For the worker's claim to be accepted by the WCB, the worker must have had an accident as provided in subsection 1(1) of the Act. Further, the accident must have arisen out of and in the course of his employment as provided in subsection 4(1) of the Act.

The panel is unable to find that the worker had an accident as required by the Act and finds, on a balance of probabilities, that the claim is not acceptable.

In arriving at his decision the panel notes that:

- The worker did not report the July 22, 2002 incident to the WCB until December 2004. The panel finds this delay in reporting to be inconsistent with the worker's position that he injured himself in July 2002. The panel notes that the worker had other WCB claims and was familiar with the process for filing claims.

- The worker was in regular contact with WCB staff in relation to his May 14, 2002 right knee injury beyond July 2002 and did not mention that he sustained an injury to his shoulders. The worker was also receiving medical attention for his right knee injury but there is no reference in any medical reports around the date of the incident that the worker had a shoulder injury.

- The employer could not confirm that an accident was reported.

- The evidence does not support the worker's assertion that he sought medical treatment near the date of the incident. His family physician advised that the worker did not see him with respect to shoulder problems until November 2003. He confirmed to WCB staff that the worker did not provide a specific accident description.

For the reason noted above the panel finds that the July 2002 claim is not acceptable as the evidence does not establish that the worker suffered personal injury by accident arising out of and in the course of his employment.

Conclusion

The worker's appeal on both issues is declined.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 2nd day of August, 2006