The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review took place on May 9, 2006, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On April 21, 2005, the worker contacted the Workers Compensation Board (WCB) and reported an injury to his right and left knees. The worker noted that at times he finds it impossible to bend down, when he walks his knees sometimes give out and stairs are slow and painful. His knees give him constant pain when working, sleeping or relaxing. The worker reported that he has worked as a flooring/carpet installer for 38 years.

The employer's report of injury states that the worker has trouble bending down and getting up because of the pain and that the worker has difficulties getting up and down stairs. It was felt that the injury was the result of many years of installing flooring/carpets.

A doctor's first report of April 21, 2005, indicated that the worker likely had arthritis.

On July 15, 2005, primary adjudication spoke with the worker to find out more information about his injury. The worker stated that he had no prior injuries or problems with his knees and that his only activity was gardening. He reported that his right knee symptoms started approximately one year previous and that no specific event precipitated the onset of his signs and symptoms. While coming home from work one day, his right knee was sore and the soreness gradually increased. He reported the onset of his left knee difficulties to be about February 2005, when he attempted to get up one day at work and found that he was unable to do so. His symptoms continued on from then.

In a decision letter dated August 5, 2005, primary adjudication confirmed that the WCB was accepting this claim based on a diagnosis of bilateral bursitis. It was reported that the medical evidence noted the worker had bilateral osteoarthritis and bursitis in his knees. The decision letter stated that the diagnosis of osteoarthritis was not being accepted as it was considered a pre-existing condition not related to his employment activities.

Subsequent to the acceptance of this claim a WCB medical advisor reviewed the file and noted in a memorandum dated August 29, 2005, that the physician's notes of July 21, 2005, mentioned a diagnosis of bilateral associated bursitis and effusions. It was noted that there were no objective findings given to support a diagnosis of acute bursitis of the knees. He further noted that the bursitis described in July would likely be part of a chronic degenerative process; that is osteoarthritis. The objective findings and x-ray reports were in keeping with degenerative changes, that is arthrosis of the knees.

On August 31, 2005, primary adjudication formally advised the worker that a review of his claim had been completed and it was determined that he did not qualify for WCB benefits and services. Based on a thorough review of all information, the WCB was unable to accept responsibility for the worker's claim.

On September 8, 2005, the worker submitted a letter to Review Office asking them to reverse the decision to deny this claim.

On September 21, 2005, Review Office determined that the claim was not acceptable on the basis that there was no evidence to show that the worker had sustained a personal injury by accident arising out of and in the course of his employment.

On April 13, 2006, the worker's representative appealed Review Office's decision and a review was convened before an appeal panel on May 9, 2006.

Reasons

The worker appealed the WCB's decision to deny his acceptance of his claim. For the worker's appeal to be successful the panel must find that the worker's injury was caused by his employment. The panel did not find a relationship between his injury and employment.

Worker's Position

A worker advisor made a written submission on behalf of the worker.

The worker advisor submitted that the worker, a carpet/floor installer, "…was employed for 38 years in the profession where 90% of his time was spent on his knees installing floors in houses and on concrete floors, bathrooms and kitchens and it is our position that his employment was the Dominant-cause (sic) of his present medical condition and ongoing time loss from work." He submitted that the worker's condition must be considered a work related occupational disease. He stated the claim is acceptable pursuant to The Workers Compensation Act and WCB policy 44.20, Occupational Disease. He submitted that if the worker's condition is found to be a pre-existing condition, it is compensable under WCB policy 44.10.20.10, Pre-existing Conditions.

The worker advisor referred to a medical report from an occupational health physician in support of acceptance of the worker's claim. In a report dated January 16, 2006 the physician comments that "In my view, [the worker's] repeated kneeling and squatting and crawling would have had a direct effect on his knee symptoms." He also cited reports from two orthopaedic specialists in support of the worker's claim.

In support of the worker's position, the worker advisor provided internet articles regarding bursitis, osteoarthritis and health and safety issues for carpenters.

The worker's employer made a written submission supporting acceptance of the claim. It is the employer's position that the injury is work related.

Relevant Legislation

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

Accident is defined in subsection 1(1) of the Act as;

"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,
and as a result of which a worker is injured;

In this case, the worker advisor has submitted that the worker's injury is an occupational disease which is defined in subsection 1(1) as:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event;

Analysis

The panel finds, on a balance of probabilities, that the worker's claim is not acceptable as the worker did not have an accident as defined in the Act.

The worker suffers from bilateral knee problems diagnosed as osteoarthritis. This diagnosis is confirmed by the worker's first orthopaedic surgeon who performed an arthroscopy on February 2, 2006. In the surgical report the physician notes "Both knees showed degenerative tearing of the menisci, both knees showing advanced medial compartment osteoarthritis." The panel notes this is a progressive degenerative condition. It is not an occupational disease as defined in the Act, and the evidence does not establish that it is peculiar to a particular trade or occupation or employment. There is no evidence that osteoarthritis is peculiar to the work of carpet/floor installers.

As well the evidence does not support that the worker's condition arose from trauma. The worker's evidence on file is that over the years his knees became sore. In a report dated March 13, 2006 the worker's first orthopaedic surgeon commented "Generally osteoarthritis is more degenerative in nature and it can be from a repetitive injury but usually a fair amount of injury is needed for that." The evidence does not support an injury from repeated trauma. The onset was gradual and is consistent with a progressive degenerative condition. Accordingly the claim is not acceptable as a traumatic accident.

The panel notes that initially the claim was accepted as bursitis but was later denied when the WCB determined the medical evidence did not support a diagnosis of work related bursitis. The panel finds, on a balance of probabilities, that the worker did not have work related bursitis. The panel relies upon the opinion of the WCB medical advisor expressed in a memo dated August 29, 2005 in reaching this conclusion. The medical advisor commented:

“…on reflection, there are no objective exam findings given to support a separate diagnosis of an acute bursitis at the knees. The bursitis described in the July report would likely be part of a chronic degenerative process at the knee joint: osteoarthrosis. The majority of the symptoms, the objective findings on exam, and the x-ray reports are all in keeping with degenerative change/osteoarthrosis of the knees.”

The panel also notes that the occupational health physician who examined the worker on December 12, 2005 was unable to determine if the worker had bursitis.

Finally the panel has considered the argument advanced by the worker advisor that the worker has a pre-existing condition that was aggravated or enhanced by his work duties. The panel has considered all the evidence and finds on a balance of probabilities that the evidence does not establish that the worker’s osteoarthritis has been aggravated or enhanced by the worker’s employment. The panel relies upon the opinion of the WCB medical advisor that the majority of symptoms and findings are consistent with degenerative change.

The worker’s appeal is denied.

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 15th day of June, 2006