Decision #151/07 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for left knee pain that he attributed to a new job he started on July 28, 2006 and a prior compensable left knee injury. On October 3, 2006, the WCB denied responsibility for the 2006 claim on the grounds that there was no evidence to suggest that a new accident arose out of and in the course of his employment. On July 3, 2007, Review Office confirmed the decision that the claim was not acceptable. A worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was held on September 12, 2007. Subsequently, the panel discussed the case on two occasions, the last one being October 10, 2007.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 11, 2006, the worker filed a claim with the WCB for left knee pain that began on July 28, 2006 which was when he started a new job. The worker noted that he wore heavy work boots for 10 to 12 hour shifts. He was on his feet all day walking around as a flag person. He believed that being on his feet all day aggravated his previous compensable left knee injury from 2005. He stated that he was let go from his employment and his last day at work was August 29, 2006.

On September 11, 2006, an employer representative advised the WCB that she had no knowledge of the worker’s injury. She indicated that July 28, 2006 was the worker’s first training day and that the worker no long worked for the company.

A review of the worker’s prior WCB claim showed that he injured his left knee on July 6, 2005 when cleaning a crawl space. The worker’s left knee hit a rock and it bent outwards and popped out on the side. The diagnosis rendered by the treating physician was a left knee soft tissue sprain injury. The WCB accepted the claim and the worker was paid benefits between July 7, 2005 and December 30, 2005 when it was determined by the treating orthopaedic specialist that the worker was fit to return to work as of January 2, 2006.

On September 18, 2006, the worker told his WCB adjudicator that his current difficulties were related to his 2005 left knee compensation claim as his left knee injury never healed. He said his doctor referred him to a surgeon and he was told he had a cartilage tear in his knee. He said he was forced to find work by social assistance or he would be cut off from benefits. He then found a new job but the assignment he was given was not appropriate. He said the area was muddy and wet and he found it hard to walk around the premises.

Medical information consisted of a doctor’s first report dated September 21, 2006 which stated that the worker developed chronic pain after prolonged walking and standing. Under pre-existing conditions, the doctor noted that the worker had a previous history of knee injury and chondromalacia of the left patella. The current diagnosis was “left knee strain – exacerbation of chondromalacia of L [left] patella”.

On October 3, 2006, the worker attended the WCB’s office and spoke with his adjudicator. They discussed the mechanism of injury related to his July 2005 WCB claim. The worker indicated that his supervisor was aware that his knee popped out after the incident but he was told to continue his regular duties and it made his condition worse. The worker said his knee did not change since after the July 2005 accident. He continued to feel sharp, needle like sensation on his left knee including grinding sounds when he walked. Before he obtained employment with his present employer, he described his left knee symptoms as locking up, giving out, collapsing, dragging his leg and limping. The worker said he never had any problems to his left knee when it came to his body weight as he had been overweight for the last several years. He found it difficult to wear heavy boots as he had to stand on it, drag and walk with it which caused compression and strain to his left knee. The worker indicated he was not involved in any accidents and had not had any accidents since.

In a decision dated October 3, 2006, the WCB denied the claim as it felt there was no evidence to suggest a new accident arose out of and in the course of his employment with his present employer. The following factors were considered by the adjudicator in making her decision:

  • regarding the worker’s prior WCB claim, Review Office made the determination he had recovered from his compensable injury and the worker was fit to resume his regular duties effective January 2, 2006;

  • based on medical reports, the diagnosis of a sprained left knee remained unchanged. In the opinion of his specialist, the worker’s body weight aggravated his left knee condition. There was no new evidence to show that the worker’s current difficulties had been enhanced or accelerated by the compensable injury.

In a report dated November 3, 2006, an orthopaedic surgeon stated the worker complained of ongoing pain in his left knee when climbing stairs or standing on tiptoes or squatting down. There was no history of recent injury. The worker stated his usual work required him to wear boots. The specialist noted that the worker weighed 275 pounds in November 2005 and now weighed 290 pounds. Both knees had full movement and there was retropatellar crepitus and pain at the anterior left knee and tenderness about the patella. There was diffuse pain about the medial and lateral aspects of the knee. The specialist’s diagnosis was chondromalacia and synovitis left knee. In a further report concerning an office visit that took place on February 20, 2007, the specialist noted that the worker was undergoing knee surgery on April 17, 2007.

The worker had x-rays done of his left knee on November 3, 2006 which were compared to an exam of October 2005. No bone or joint abnormality was appreciated according to the x-ray report.

On July 3, 2007, the case was considered by Review Office based on an appeal submission by a worker advisor dated June 14, 2007. Review Office confirmed that the claim was not acceptable. It stated in its decision there was no “compensable accident” involved in this claim and that the WCB’s policy on pre-existing conditions was not applicable. Review Office indicated the act of walking would not meet the WCB definition of an accident. It also called into question the worker’s contention that his work boots had a role in the production of his knee symptoms. On July 6, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was requested.

In a report to the worker advisor dated August 9, 2007, the treating surgeon commented that the possible clinical diagnosis of traumatic chondromalacia of the patella was not confirmed at arthroscopic surgery carried out on June 12, 2007. He said the most likely diagnosis was patellofemoral pain in the worker’s left knee and that this pain could be directly related to the workplace injury if the worker had not been successful in strengthening his quadriceps muscles. Regarding disability, the specialist noted that an individual’s response to patellofemoral pain was highly variable and varied from individual to individual. The worker would generally be able to return to work as a security guard and would be capable of doing moderately heavy duties as a labourer if he was able to successfully strengthen his quadriceps muscles.

Following the hearing on September 12, 2007, the panel requested an update of the worker’s left knee status from the treating surgeon. A report was later received from the surgeon dated September 17, 2007 and was forwarded to the interested parties for comment. On October 10, 2007, the panel met to discuss the case and considered final comments from the worker advisor dated September 25, 2007.

Reasons

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. As this appeal deals with claim acceptance, subsections 1(1) and 4(1) are applicable. Subsection 1(1) of the Act defines accident. Subsection 4(1) of the Act provides that where a worker suffers personal injury in a workplace accident, compensation is payable.

Worker’s Position

The worker was represented by a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.

This hearing followed immediately after a hearing dealing with a prior injury to the worker’s left knee. It was agreed that the information referenced at the earlier hearing may be relevant to this claim and that the transcript from the earlier hearing would be included by reference at his hearing.

The worker’s representative submitted there are objective findings noted by doctors that show the worker had increased symptoms in the knee causing greater loss of function after he started work on July 28, 2006. He stated that the duties caused a greater loss of function which suggests an aggravation and could give rise to a claim, or that the return to work caused a recurrence of symptoms under the worker’s 2005 claim.

The worker’s representative stated that the job duties have at least aggravated the worker’s knee condition. In support of this position, he referred to the September 11 and 21, 2006 reports from the treating physician. He also noted a November 3, 2006 report and a February 20, 2007 report from the orthopedic surgeon who first treated the worker’s knee under his prior 2005 claim.

In commenting on the Review Office decision, the worker’s representative said that it was not so much that the worker had another specific accident but had an increase in symptoms.

The worker advised that he had returned to work in July 2006 as a flagman at a large construction site. He described his duties which primarily involved directing vehicle traffic at the worksite and walking. He indicated that he was required to wear heavy work boots and to walk over uneven ground which was at times very muddy. He acknowledged that much of his work was on pavement around the four corners of the worksite.

The worker was asked if the symptoms he had while doing this job were the same as before he started the job. He replied “yes”. He was also asked if his knee has improved with his being off work for approximately 12 months. He replied that it is not getting strong and that “I just aggravate it more if I do something.” He indicated that it was not better.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful the panel must find that the worker suffered personal injury by accident arising out and in the course of his employment. In other words, the panel must find that the worker’s current condition was caused by a workplace injury or was aggravated by the worker’s workplace duties. The panel was not able to make either of these findings.

The panel finds, on a balance of probabilities, that the claim is not acceptable. The panel finds that the worker’s symptoms and diagnosis have not changed materially since before the worker attempted the flagman duties to the current date. The panel also notes that the proposed diagnosis of left knee chondromalacia patella was dismissed by the second orthopedic specialist who performed an arthroscopy on the worker’s left knee on June 12, 2007. The panel places significant weight upon the worker’s own evidence that his condition did not change, and that it was the same before he started the flagman duties as after he had completed this job. The panel also finds the evidence does not establish that the worker suffered personal injury by accident or that the worker suffered an aggravation of a pre-existing condition.

The worker’s appeal is declined.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of November, 2007

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