Decision #08/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s claim for a workplace injury is acceptable.
The worker filed a claim with the Workers Compensation Board (WCB) for an injury which she stated occurred while she was performing her work duties on February 23, 2005. The WCB found the claim was not acceptable as it could not relate the diagnosis to a workplace injury. The Review Office found the claim was not acceptable as the evidence did not establish that the worker sustained a workplace injury. The worker filed an appeal of this decision with the Appeal Commission.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported that she was walking down the hall at her place of employment on February 23, 2005 when her right knee cracked. The worker claimed that her knee was fine prior to her shift and she was not carrying anything at the time. She did not report the incident to her employer until February 24, 2005 as she thought there was nothing major wrong with her knee.
The employer of record advised the WCB that no particular incident was reported. The first time they became aware of an injury was when they received a doctor’s note which revealed that the worker was seen for right knee inflammation at Urgent Care on February 26, 2005.
On March 4, 2005, the worker told her WCB adjudicator that she was halfway through her shift when her right knee cracked. She did not twist her knee or step in a funny way. She had a moment of weakness and then felt pain in her knee. She could not remember what she was doing just prior to the event. She may have been assisting a resident into bed. She completed her shift and then went home and rested. On February 24, 2005 her knee was very swollen so she put on a surgical stocking and went to work. She may have shown her knee to a couple of co-workers. On February 25, 2005 she went to work again but worked very slowly. The nurse on duty told her to go to the hospital which she did on February 26, 2005. The doctor told her that her knee condition was likely related to her work because of all the bending and stretching she did. Her family doctor told her that she had an arthritic knee. The worker indicated that she did not have problems with her right knee before February 23, 2005. She did advise that on the morning of March 4, 2005 she may have twisted her knee when she was getting out of her bathtub as she had a lot of swelling and pain.
Medical information was received from the family physician, a hospital facility and an orthopaedic specialist. A review of these reports reveal possible diagnoses of patellofemoral osteoarthritis, meniscal tear and early osteoarthritis of the right knee.
On April 15, 2005, the worker’s claim for compensation was denied as the WCB adjudicator was unable to relate the three possible diagnoses to the February 23, 2005 workplace event.
Following the decision to deny the claim, an orthopaedic surgeon diagnosed the worker’s knee condition as patellofemoral syndrome. On May 13, 2005, the worker was advised that the diagnosis of patellofemoral syndrome was a degenerative disorder and would not occur as a result of the February 23, 2005 workplace event. Therefore, no change would be made to the earlier decision to deny the claim.
An MRI report dated May 28, 2005 revealed a meniscal tear and chondromalacia. On July 12, 2005, the WCB adjudicator outlined her position that the worker’s meniscus tear would likely result from weight bearing on a flexed knee and that this was inconsistent with the February 23, 2005 accident history.
On October 28, 2005, a worker advisor requested reconsideration of the decisions dated April 15 and July 12, 2005. The worker advisor provided the WCB with further information regarding the events that took place on February 23, 2005. She stated that prior to walking down the hallway, the worker attended to a resident who had spilled coffee on herself and needed to be changed. Prior to leaving the room, the worker bent down with both knees to pick up tissues off the floor and then walked out into the hallway where she began to experience right knee symptoms. The worker did not realize that the act of crouching down with bent knees was pertinent information until she read the July 12, 2005 decision letter which stated “medial meniscus tear would likely result from weight bearing on a flexed knee”. Based on this information, the worker submitted that a relationship existed between her right knee condition and the mechanics of the February 23, 2005 injury.
Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. He stated that horizontal tears are usually degenerative tears but do require an element of trauma to occur.
On December 7, 2005, Review Office determined that the claim for compensation was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of her employment. It was Review Office’s opinion that there was no causal relationship between the act of walking down the hallway and feeling a crack in the right knee and the diagnosis of a medial meniscus tear. It also was of the opinion that the duties the worker was performing in the resident’s room did not contribute to her knee problem as the worker did not have symptoms at that time.
On August 8, 2006, the worker advisor appealed Review Office’s decision and later provided the Appeal Commission with a report from the treating orthopaedic surgeon dated July 6, 2006 for consideration.
Following the hearing on November 8, 2006, the appeal panel requested further medical information from the worker’s treating surgeon. On November 24, 2006, the report from the surgeon was distributed to the parties with a direct interest for comment. On December 11, 2006, the panel met to discuss the case and render its final decision.
Reasons
Applicable Legislation
For the worker’s claim to be accepted, the worker must have had an accident as provided in subsection 1(1) of The Workers Compensation Act (the Act). Further, the accident must have arisen out of and in the course of her employment as provided in subsection 4(1) of the Act.
Generally, “arising out of employment” is concerned with whether the activity which gave rise to the injury is causally connected to the worker’s employment. “In the course of employment” is concerned with the time, location and activity. Subject to the statutory presumption set out in subsection 4(5), both requirements must be met for the worker's claim to be accepted.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker answered questions posed by her representative and the panel.
The worker provided a detailed description of her activities surrounding the incident. She advised that she had been attending to a resident and was exiting the resident’s room when she crouched down to pick up tissues which were on the floor. She picked up the tissues and turned left to go down the hallway when she heard a noise, like a bone cracking, in her right knee. She then felt pain in her knee. The pain was a “really sharp ache”. She stated that her knee was sore but that she continued to work for the balance of her shift. The next day her knee was swollen. She continued to work but had to wear items, similar to surgical stockings, over her knee.
With respect to reporting the incident the worker advised that she did not report the incident immediately but later during the shift she told a co-worker that her knee was sore.
The worker advised that she sought medical attention, had an MRI scan and ultimately had surgery for a meniscal tear. The surgery took place in July 2005. The worker advised that the surgery was successful and that she returned to full duties.
The worker denied any prior problems with her right knee but acknowledged that she had arthritis in her left knee. The worker acknowledged that she did not experience any pain while attending to the resident.
The worker’s representative submitted that the worker used the body mechanics of weight bearing, rotating and semi-flexing while attending to the patient and picking up the tissue from the floor. The representative stated that assisting residents and picking up material from the floor are conditions and obligations of the worker’s employment and therefore meet the requirements of subsection 4(1) of the Act.
The worker’s representative referred to reports from the worker’s treating orthopedic surgeon which support a relationship between the worker’s duties and her injury. She noted the physician’s comments that the patient’s description of the injury along with the acute onset of pain was consistent with the patient having a tear of the meniscus. The representative also referred to a memo from a WCB medical advisor which stated that horizontal tears are usually degenerative but require an element of trauma, such as weight bearing and rotating in a semi-flexed position.
The worker’s representative stated that the worker is uncertain as to exactly what activity caused the tear, but that the onset of symptoms occurred during the course of the worker’s employment.
Employer’s Position
The employer submitted there is no evidence that a workplace accident occurred as defined by the Act. He noted the worker initially reported that no accident occurred to cause the knee symptoms, that the worker delayed in reporting the incident to the employer and that there are medical opinions on file indicating that the worker’s symptoms are more indicative of pre-existing chondromalacia than a tear. The representative suggested that the worker may have had a spontaneous onset of her pre-existing osteoarthritis, unrelated to work. The employer’s representative advised that the employer agrees with the Review Office decision.
Analysis
The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker sustained an injury by accident which arose out of and in the course of her employment. In other words, that the injury is related to the worker’s employment duties. The panel made this determination.
As noted in the background, after the hearing, the panel obtained updated medical information from the worker’s treating orthopedic surgeon who operated on the worker’s right knee in July 2005. The physician provided a report dated November 20, 2006. In his report, the treating orthopedic surgeon commented that the worker sustained the tear of the meniscus with the injury she had on February 23, 2005. The physician also commented that the patient’s history of immediate onset of pain in her knee, with pain in both the medial and lateral sides would be consistent with a tear of the meniscus. The treating orthopedic surgeon observed that the worker “…may well have had mild degenerative changes in her knee which were symptomless preceding this injury of February 2005.”
The panel places significant weight upon the opinion of the treating orthopedic surgeon. The panel has also considered and accepts the description of the accident provided by the worker at the hearing. The panel finds that the diagnosis of a tear in her right meniscus is consistent with the mechanism of injury described by the worker. The panel finds that the injury occurred while the worker was in the course of her employment and arose out of her employment. Accordingly the panel finds that the worker’s claim is acceptable.
The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of January, 2007