The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on September 27, 2006, at the employer’s request.

Issue

Whether or not responsibility should be accepted for the further injury sustained to the worker’s right knee on March 15, 2005.

Decision

That responsibility should be accepted for the further injury sustained to the worker’s right knee on March 15, 2005.

Decision: Unanimous

Background

The worker sustained a compensable right anterior cruciate ligament rupture along with medial meniscus damage during the course of his employment as a refuse helper on November 10, 1988. He was eventually awarded a Permanent Partial Disability (PPD) award because of his knee condition and has permanent physical restrictions.

On March 24, 2005, the worker informed a Workers Compensation Board (WCB) case manager that he suffered a recurrence of his right knee injury on March 15, 2005 and that he was off work as a result. The worker indicated that he could not put any weight on his knee and may require surgery. He said the injury did not happen at work.

Medical information showed that the worker sought treatment from his family physician on March 17, 2005 with entrance complaints of recurrent swelling and pain of his right knee from walking on a snow bank on March 15, 2005. Examination findings revealed moderate effusion and tenderness in the medial joint line with flexion deficit and painful full extension. Treatment included a tensor bandage, quadriceps exercise and physiotherapy. It was also indicated that the worker was fit for light duties consisting of no prolonged weight bearing and carrying.

During a telephone conversation on April 6, 2005, the worker advised a case management representative that he was not walking on a snow bank on March 15, 2005, he was walking along on cement and he went to turn the corner and his knee just went out. He since has been unable to weight bear. The worker indicated that there were witnesses to the accident but no one helped him and he had to hobble back to his car.

On April 19, 2005, an appeal panel hearing took place with respect to a January 5, 2004 injury wherein the worker re-injured his right knee while jumping into a swimming pool from a 5 meter diving platform. In a June 6, 2005 decision, the appeal panel determined that there was no causal relationship between the worker’s January 5, 2004 injury and his original compensable injury.

On July 15, 2005, the worker told his case manager that his knee was steadily deteriorating since his original compensable injury. He did not feel that the non-compensable recurrence of January 5, 2004 accelerated the decline in his knee condition. The worker indicated that he was walking on a dry piece of concrete on March 15, 2005 when he felt his knee go out.

In e-mail correspondence to the case manager dated August 11, 2005, the employer’s representative submitted that the worker’s injury of March 15, 2005, as recorded by the treating physician in his March 17, 2005 report, was not compensable. He stated, “As noted in our submissions related to the non-compensable incident of January 5, 2004, [the worker], despite having a permanently impaired knee, had not required any medical treatment or incurred any time loss during the 10 years prior. The incidents that have resulted in aggravations of his permanent impaired knee occurred during extracurricular activities outside of work and in violation of established physical restrictions, i.e. “no walking on uneven ground”.

In a report to the WCB case manager dated August 2, 2005, the treating physician stated, in part, “…I would also like to point out a correction that needs to be addressed relating to the cause of injury on the WCB Progress report dated 17^th March 2005 where under ‘Subjective Complaints’, I indicated that [the worker] had walked on some snow bank and recurred the swelling and pain to the right knee. [The worker] advises me that his knee gave out on him while he was walking on a paved walk way and his knee gave out on turning a corner. He claims that his right knee pops out for no reason since 1989 and it replaces itself spontaneously with some help from him.”

In a decision dated August 25, 2005, the worker was advised by his case manager that his March 15, 2005 incident was considered compensable and that the WCB’s coverage would be limited to medical aid entitlement only.

In a memo dated September 8, 2005, a WCB orthopaedic consultant stated, in part, “the buckling injury of March 2005, may have been as much an effect as a cause and appears to be still related to the compensable injury of November 9, 1988.”

In a report dated November 21, 2005, a knee surgeon noted that the worker “has had long standing problems with his right knee.”

On March 21, 2006, the employer’s representative appealed the case manager’s decision of August 25, 2005 to Review Office. The employer representative submitted that the accident history provided by the attending physician on March 17, 2005 was more credible and that the preponderance of evidence did not satisfy WCB policy 44.10.80.40.

On May 16, 2006, the worker’s union representative provided rebuttal argument to the employer’s submission of March 21, 2006. He outlined his view that the accident mechanics were communicated consistently in a different manner than what the doctor indicated on March 17, 2005. He believed that the file evidence did satisfy the criteria under WCB policy 44.10.80.40 and that the case manager’s decision should be upheld.

In a June 9, 2006 decision, Review Office agreed that responsibility should be accepted for the worker’s right knee injury that he sustained on March 15, 2005. Review Office made reference to the two descriptions of accident given by both the attending physician and that of the worker. It was of the view that neither of the descriptions of the accident on March 15, 2005 would have resulted in the difficulties experienced by the worker in an individual whose knee was not compromised. Review Office concurred with the statement made by the WCB orthopaedic consultant dated on September 8, 2005. On June 22, 2006, the employer’s representative appealed Review Office’s decision and a file review was arranged.

On September 8, 2006, the worker's representative wrote to the Appeal Commission. In his letter, he cited a number of references in support of the worker's evidence that the accident occurred while he was walking on cement. These references included the worker's interview on April 6, 2005, the July 11, 2005 conversation with the assistant to the treating physician, and the physiotherapist's comments of August 22, 2005.

The worker's representative also placed heavy emphasis on the evidence of the WCB Medical Consultant who was of the view that the buckling injury was related to the compensable injury of November 9, 1988. In particular, reference was made to the medical consultant's conclusion that “there is persisting instability from both the meniscal tear and the ACL injury.”

The worker's representative also drew the panel's attention to the Administrative Guidelines relating to WCB Policy 44.10.80.40 which state:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. the original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g. unstable knee) . . . The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident. . .

On September 19, 2006, the employer's representative offered his position to the Appeal Commission. The employer's representative drew the panel's attention to the similarities between the fact situation in Appeal Commission Decision 95/05 and the current matter. He also urged the panel to rely upon the report of the treating physician dated March 17, 2005 which suggested the injury was a result of the worker walking on a snow bank. He suggested to the panel “walking on uneven terrain such as a snow bank and, in all probability, twisting one's knee could, in and of itself, result in a medial meniscus tear regardless of the previous knee history or pathology.”

The employer's representative conceded that “if you accept that there was significant pre-existing instability due to the compensable accident of November 10, 1988 then it would be reasonable to confirm the Board's position on this matter.” However, he suggested that there was no medical “evidence of any significant instability or episodes of giving away as far back as 1993.” In his view, the worker's evidence as to the instability should be given little weight. The employer's representative also took issue with the conclusions of the WCB medical consultant given the consultant's heavy reliance on the evidence by the worker that there was significant pre-existing instability dating back a number of years.

Reasons

The worker's position regarding his activities at the time of his accident are also supported by his statement to the case manager in April 2005 as well as by his statements to his physiotherapist. Based upon a balance of probabilities, the panel is of the view that the accident occurred while the patient was walking on cement or concrete.

Notwithstanding this conclusion, the panel considers both walking on concrete and walking on snow to be normal actions that would be part of the worker’s job duties and not actions “known by the worker not to be acceptable to the WCB.” The panel notes that there is no suggestion that walking on concrete would be an action known by the worker not to be acceptable to the WCB. The panel would also note that given the Manitoba climate and the conditions of Winnipeg's driveways, streets and sidewalks, individuals in the normal course of their passage on our driveways, streets and sidewalks may be obliged to walk upon snow or traverse snow banks.

Moreover, the panel is of the view that neither of the descriptions of the accident on March 15, 2005 would have resulted in the difficulties experienced by the worker in an individual whose knee was not compromised. In the panel's view, the injury of March 15, 2005 resulted from a residual weakness in the area of the original injury to the worker's knee. Based upon a balance of probabilities, it is the panel's view that the unstable knee caused or significantly contributed to the subsequent accident.

Panel Decision 95/05

While the panel has reviewed decision 95/05, it finds that earlier determination to be of little assistance, given the markedly different fact situation in play.

Conclusion

The panel finds, based upon a balance of probabilities, that the further injury to the worker's knee as a result of the accident of March 15, 2005 is predominantly attributable to the compensable injury of November 10, 1988. In the panel's view, the actions undertaken by the worker at the time of his March 15, 2005 injury were not actions “known by the worker not to be acceptable to the WCB.”

Accordingly, the Employer's appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2006