The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with the issue of whether the worker suffered a workplace accident within the meaning of The Workers Compensation Act (the “Act”), that is, an accident arising out of and in the course of employment.

Background

On March 9, 2006 the worker filed a claim for compensation for injury to her right knee stating that while at work she began to feel ‘tender pressure’ in her right knee which increased in intensity as her shifts progressed. By the end of her shifts she had an intense “cramping, pressure” pain and swelling in the back of her knee which got progressively worse with working, and subsided on the week-ends. She thought her right knee symptoms were related to her work duties for the following reasons:

“I believe that my injury was caused from the [vehicle] that I was operating on [February 6, 2006]. The [vehicle] that I started operating on that day had a crooked seat. The seat was slightly turned towards the driver side window. The seat on that [vehicle] also didn’t move back that far which didn’t allow me to get comfortable. I drove this [vehicle] for [approximately] 3 hours on [February 6, 2006]. While I drove, I started to drive with my lower right leg turned out laterally. On [February 7, 2006], I continued working in cramped quarters as the seat didn’t go back any further”.

On March 15, 2006 the worker spoke to a WCB case manager about her claim. She indicated that she had been a driver for 20 years and never had any previous knee difficulties or injuries. On February 6, 2006, the seat in her vehicle was tilted towards the window so that she had to turn her right foot to the right during her entire shift. She did not experience any symptoms on this day though she did fill out a defect card for the seat. The next day, she drove a different vehicle. She found that the seat was also faulty as she was unable to adjust it back and her legs were too close to the dash. As there was no room to manoeuvre her foot from the gas to the brake pedals she was forced to hold her legs up in the air hovering over the pedals. By the end of her shift she was experiencing excruciating pain in her low back, right hip and right knee. She did not call in to report the problem but did fill in a green card the next day on February 8, 2006. On February 9 and 10, 2006, the pain was not too bad in the morning but worsened by the evening. She had pre-scheduled holidays from February 10 to 19^th but did not go away as planned because of leg pain. She finally called her family physician for an appointment on February 10, 2006 which was scheduled for February 14; in the end she cancelled the appointment as she felt a great deal better and thought the problem was clearing up. On February 20 and 21, 2006, she returned to work and again her knee felt fine in the morning but worsened by the afternoon. On February 22, 2006 she was in excruciating pain. She was off work on February 23, 2006 due to a prior commitment. On February 23, 2006 she called her family physician and obtained an appointment for March 2, 2006. On February 24, 2006 she was in so much pain she could hardly walk. She was then off for the week-end and returned to work on the Monday, Tuesday and Wednesday (February 27, 28 and March 1, 2006). On March 2, 2006, she saw her doctor who did not provide her with medical authorization to remain off work as she told him she did not want to miss any time from work. On March 3, 2006 she worked her entire shift and then saw her chiropractor and was advised to remain off work completely. The worker said she was not involved in any extracurricular activities outside of work which would have contributed to her symptoms. She does exercise on a treadmill and stationary bike at home.

The worker’s treating chiropractor filed a WCB report on March 6, 2006 regarding her examination of the worker on March 3, 2006. Her report notes that the worker complained of driving two vehicles with bad seats, forcing her to have her right leg twisted, causing it to become swollen and painful. On examination she noted swelling at the medial and posterior aspects of the right knee, pain over the medial lateral ligaments and quad insertion and adductor insertion and misalignment of the medial and tibia anterior. She diagnosed the worker with a right knee strain with joint misalignment and recommended time off work. The chiropractor ultimately ruled out a diagnosis of knee strain given that the worker was not responding to treatment. She questioned whether the worker had instead suffered cartilage or ligament damage and recommended the worker see her family physician.

The worker did so on March 21, 2006. It was his opinion that the worker suffered from right knee arthritis. He too recommended that she remain off work and attend physiotherapy.

The worker saw the physiotherapist in April 2006. The physiotherapist noted that the worker complained of pain in the right lateral leg and knee and posterior pain and of the knee cracking. She noted that the worker was tender in some of the muscle groups above and below the right knee and also questioned whether the worker had suffered muscle strain.

The employer disputed the acceptability of the worker’s claim for compensation. On March 9, 2006, the same day the worker filed her claim, the employer filed its accident report stating that the worker had reported that the vehicle she was driving on February 7, 2006 had a defective seat which could not be adjusted far enough back so she had to hold her right leg over the accelerator. The employer checked the seat and found no defects with it. It opposed acceptance of the worker’s claim based on the delay in reporting, the absence of any defects in the vehicle and the time that elapsed from the date of the alleged incident to layoff.

Primary adjudication verified which vehicles the worker drove on February 6 and 7, 2006 and whether any defects were reported or found. The information supplied by the employer was as follows:

• On March 20, 2006, the employer indicated that the worker operated two vehicles on February 6, 2006 and that the worker signed off both of these vehicles as “okay”. Further, maintenance confirmed it had not received any defect slips for either of the vehicles for that day.

• On April 5, 2006, the employer advised the WCB that the worker had incorrectly identified February 6, 2006 as the day she signed off two vehicles for defects; it was February 7, 2006 that she put in defect slips.

• On February 7, 2006 she drove 2 different vehicles – 1 and 2.

• She drove vehicle 1 in the morning and signed it off as “okay”. Maintenance did recall however that a female driver had personally reported that there was a problem with the driver’s seat on vehicle 1 and the seat was ultimately replaced on February 9, 2006. Maintenance could not remember however what date the female came in to report the problem or why the seat was replaced.

• She drove vehicle 2 in the afternoon and filled in a defect slip noting “driver’s seat too close to dash, drivers bottom cushion is mis-aligned to the rest of the seat”. Vehicle 2 was checked by maintenance and no defects were found. It was put back into service with no adjustments/repairs as none were required.

• After the worker’s shift on February 7, 2006 the vehicles were driven by different operators and all signed off as okay.

Evidence at the Hearing

At the hearing, the worker testified that she had been mistaken in her reporting of which vehicle seats were defective. She said that the employer’s records showed that it was the seats in vehicle 1 and 2 that she drove on February 7, 2006.

The worker testified as to the awkward position she needed to sit in while driving vehicle 1. She added that immediately after that shift, she went and spoke to the supervisor of maintenance and told him that the seat was mis-aligned. She did not remember if she filled out a defect slip.

Later that day she drove vehicle 2 and once again, because of the driver’s seat which could not move far enough back, her leg was in an awkward position. She added that just shortly after beginning this second part of her shift she got shooting pain down the outer side of her right leg that caused her to cry. At the end of that shift, she filled out a defect slip noting that the driver’s seat was too close to the dash and that the bottom cushion was mis-aligned to the rest of the seat.

She did not seek medical attention that day because she was “fine”. The next morning her knee was swollen and she was in a great deal of pain. She went into work and filled out a green card and continued to work.

She could not remember much about her symptoms until her return from holidays when she noticed that the pain increased with her duties.

She eventually did see her family physician who reiterated that he thought she was suffering from arthritis. The worker disputed arthritis was her problem. While she conceded that her knee was swollen she stated that it was the muscles in front, alongside and on top of her knee that were the problem. She testified that the chiropractic treatment made her symptoms immediately better.

An MRI was done on her knee that revealed a healed torn meniscus and some arthritis and an arthroscopy was done. Since that time she needs to stretch on a regular basis or the muscles on the side and underside of her calf and top of her hamstring seize up. She also suffers from knee joint symptoms since that surgery that she did not have before.

Worker’s Position

The worker says that her claim is acceptable as she did not have any problems with her right knee before February 7, 2006, her symptoms developed while in the course of her duties and there were defects in the seats of both vehicle 1 and 2.

Employer’s Position

The employer says that the worker’s claim is not acceptable as she did not suffer a workplace accident within the meaning of the Act. In support of its position, it relies essentially on the medical diagnosis of the worker’s right knee condition, the lack of defect found in vehicle 2 and the lack of confirmation of a reported defect in vehicle 1 and the delay in seeking medical attention.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that the worker suffered an accident arising out of and in the course of her employment as required under subsections 4(1) and 1(1) of the Act. Based on the evidence before us we are unable to make that finding.

The worker says that on February 7, 2006 she injured the muscles above, below and alongside her right knee as a result of having to hold it in an awkward position during two shifts.

The medical evidence before us does not support this position. Indeed, the medical evidence is that the worker had a pre-existing torn meniscus and arthritis. According to the worker, this was confirmed during diagnostic testing and surgery. Though the worker did report muscular discomfort the evidence is that this was a sequela of the pre-existing conditions, as treatment aimed solely at treating the muscles failed to resolve the symptoms. Moreover, although the worker alleges that her difficulty stemmed from the muscles around the knee and not the knee itself, we note that her initial claim with the WCB states that she felt a “tender pressure” in her “knee” which is consistent with arthritis.