Decision #39/08 - Type: Workers Compensation

Preamble

On August 21, 2006, the worker filed a claim with the Workers Compensation Board (“WCB”) for left knee pain that she related to her work activities as a sales clerk. The claim for compensation was denied by primary adjudication and Review Office on the grounds that there was insufficient evidence to relate the worker’s left knee osteoarthritis (“OA”) to her work activities or that the work activities aggravated her OA condition. The worker disagreed with the decision and her union representative filed an appeal with the Appeal Commission. On February 12, 2008 a hearing took place to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for left knee pain that she related to her job duties of a sales clerk which consisted of loading carts, unloading carts and pulling carts of product. The worker stated that she did a lot of walking at work on a tiled floor with cement underneath. She stated that she first noticed symptoms in her left knee about a year and a half ago. Her symptoms would come and go but during the last week her symptoms had been constant. The date of accident was recorded as being August 8, 2006 and was reported to the employer on the same day. The worker also acknowledged that she had a previous claim with the WCB for a left knee injury that occurred in 2005.

The employer’s accident report to the WCB indicated that there was no specific incident reported by the worker regarding her left knee difficulties. It stated that the worker’s supervisor suspected that the worker was re-opening her WCB claim from last year so that the WCB can pay for a knee brace that she might need in the future.

On August 23, 2006, a WCB adjudicator noted that the worker filed a WCB claim in 2005 for a non-specific left knee injury. The WCB accepted the claim for compensation, however the worker did not wish to claim anything with the WCB. The worker then contacted the WCB in May 2006 to advise that she was having further problems with her left knee. She did not contact the WCB again until this new claim was established.

On September 8, 2006, the worker advised the WCB that she saw a physician and was told that she had osteoarthritis (“OA”) in her left knee and that the doctor prescribed a knee brace which was approved by MHSC. The worker further advised that she was given a cortisone injection to her knee a year ago and after that her knee was okay until it started to bother her again in the summer. Her knee would grind when she lowered herself to sit. She thought it would just go away. She said there were no new accidents or injuries and no change in her job duties. Two supervisors were aware of her ongoing difficulties. The worker said she has not missed any time from work and her intent was to continue working with her knee pain.

Medical information from a sports medical specialist was reviewed by a WCB medical advisor on October 18, 2006. The medical advisor stated that the evidence suggested that the worker’s degenerative disease, i.e. OA, was the cause of her symptoms. He also could not relate the worker’s OA to her previous 2005 claim.

In decision dated October 23, 2006, the worker was advised that the WCB was unable to establish a relationship between her left knee difficulties and her current employment. It also could not relate the worker’s current symptoms to her previous 2005 left knee injury.

A progress report was received from the worker’s family physician dated October 27, 2006. He indicated that the worker had tenderness over the medial meniscus area that was probably related to the worker’s constant hard heavy lifting work for many years.

On October 30, 2006, a union representative advised the WCB that the sports medicine specialist told him that the worker’s job duties were a contributing factor to the development of her OA condition.

In a report to the adjudicator dated November 13, 2006, the sports medicine specialist outlined his opinion that the worker’s job duties of lifting heavy merchandise over the past several years and walking on a hard floor contributed to her initial exacerbation of OA on August 8, 2006 and to the beginnings of the osteoarthritic process. He indicated “Even though one cannot attribute wear and tear/osteoarthritis only to the workplace, I do believe [the worker] having worked for several years at [employer] would have significantly contributed to her OA.”

In a decision dated November 30, 2006, the WCB advised the worker and her union representative that the decision of October 25, 2006 remained unchanged. It was the opinion of the adjudicator that no relationship existed between the diagnosis of OA and the worker’s job duties. In the opinion of the adjudicator, the worker’s OA was not aggravated or enhanced by her work activities.

In a submission dated August 9, 2007, the union representative asked Review Office to rescind the decision to deny benefits to the worker and to find that her job activities substantially contributed to the development of her OA condition and/or that her work activities caused an aggravation of her OA condition on August 8, 2006. In support of these conclusions, the union representative provided additional information concerning the worker’s job duties and referred to the medical opinions on file from the family physician and treating sports medicine specialist and from research which indicated that “occupations that require workers to do a lot of bending and crouching and which put increased pressure on their knees put these workers at increased risk of developing osteoarthritis.”

On August 13, 2007, Review Office determined that it was premature to review the case given the new information submitted by the union representative. The file was then referred back to primary adjudication to consider the new information.

In decision dated August 27, 2007, the adjudicator advised the union representative that the information he submitted had been reviewed and that it remained the opinion of the WCB that there was no relationship between the worker’s OA condition and her work activities and given the absence of any change or increase in her work activities, the WCB could not accept her claim based on an aggravation to her pre-existing condition of OA. On August 30, 2007, the union representative appealed the decision to Review Office.

In a decision dated September 19, 2007, Review Office agreed with primary adjudication that the worker’s claim for compensation was not acceptable. Review Office was of the opinion that the worker’s OA condition developed over a prolonged period of time and that its etiology was multifactorial. On a balance of probabilities, Review Office found insufficient evidence to support a causal relationship between the worker’s job duties and the development of OA.

Further, Review Office indicated that since it was of the view that the worker’s OA condition was a pre-existing condition, it then had to determine if the worker’s job duties aggravated her condition in August 2006. Review Office found that as there was no new accident or any change or increase in the worker’s job duties, there was insufficient evidence to support a causal relationship between the worker’s employment and the increase in her symptoms that occurred in August 2006. On November 15, 2007, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the WCB’s Board of Directors.

For a claim to be acceptable, the worker must have suffered personal injury by accident arising out of and in the course of employment as provided by subsection 4(1) of the Act. Where a worker has a pre-existing condition, a claim arising from the pre-existing condition is not acceptable unless the pre-existing condition has been aggravated or enhanced by the worker’s employment. WCB Policy 44.10.20.10, Pre-Existing Conditions, deals primarily with the payment of wage loss benefits when there is a pre-existing condition.

Worker’s Position

The worker was represented by a union representative who made a presentation on her behalf. The worker answered questions posed by her representative and the panel. The employer did not participate in the hearing.

The worker’s representative acknowledged that the worker has OA in her left knee. He submitted that the worker’s employment duties aggravated her pre-existing OA. In support of this position he referred to an October 9, 2007 opinion of the sports medicine physician who is treating the worker. The physician wrote that “…I strongly believe that her work has led to the aggravation of her osteoarthritis involving her left knee.” The physician notes that her work may have contributed significantly to her initial exacerbation of OA on August 8, 2006 and that she may receive acute exacerbations depending on her activity level.

The worker’s representative noted that there will be times when work does cause the worker’s knee to flare up and the worker wants this fact recognized. He noted that the worker did not miss work due to the aggravation.

The worker provided a detailed account of her work duties. The worker advised that she has worked at her job for 19 years. The job involves lots of walking, bending, twisting and crouching. She handles heavy and awkward items, pushes and pulls large carts, and organizes shelves and displays. She works mainly by herself. At the time of the injury the worker was working approximately 24 hours per week but, for personal reasons, has reduced her hours to approximately 15 hours. The worker advised that her work activities are more strenuous than her off-work activities and that she has not had a flare-up away from work.

The worker advised that each day her job is very busy. Her representative submitted that her activity level is not the same from shift to shift and that each day can vary depending on the materials she is handling. He noted that on August 8, 2006, the worker noticed that her knee was swelling. He attributed this to the work she was performing.

Regarding the flare-up of her pre-existing OA that occurred on August 8, 2006, the worker indicated that it settled after she had been fitted with a brace for her knee. The worker advised that she wears the brace when symptoms of her pre-existing OA are evident, such as swelling.

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’s injury, an aggravation of her pre-existing condition, was caused by her employment. The panel did make this finding.

The panel finds, on a balance of probabilities, that the worker’s employment duties on or about August 8, 2006 aggravated her pre-existing OA resulting in swelling and pain. The panel finds that the worker’s duties while generally physical, do vary from day to day, and that the duties were sufficiently physical at that time to cause the aggravation. The panel notes the worker’s advice that the aggravation resolved about one month after receiving her brace.

In making this decision, the panel relies upon the opinion of the worker’s treating sports medicine physician outlined in a letter dated October 9, 2007. Specifically, his opinion that “…I strongly believe that her work has led to the aggravation of her osteoarthritis involving her left knee.”

Regarding future flare-ups or aggravation of her pre-existing OA, the panel notes that each must be adjudicated on its individual merit and this decision is not to be accepted as an acceptance of future aggravations.

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of March, 2008

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