Decision #108/08 - Type: Workers Compensation
Preamble
On May 2, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee injury which she claimed occurred at work two months earlier on March 1, 2007. The claim for compensation was denied by primary adjudication on the grounds of an inconsistent accident history and the worker’s delay in reporting an accident. The Review Office determined that the evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of her employment. A worker advisor disagreed with Review Office and filed an application to appeal. A hearing was held at the Appeal Commission on June 3, 2008.Issue
Whether or not the claim is acceptable.Decision
Whether or not the claim is acceptable.Decision: Unanimous
Background
When filing her claim for compensation benefits on May 2, 2007, the worker reported that she incurred a right knee injury which she thought occurred on March 1, 2007 by kneeling and turning her body while in the process of helping a client perform exercises on a bed.
On May 8, 2007, a WCB adjudicator contacted the worker to obtain additional information. The worker provided details of her job duties that were associated with patient care. She indicated that she began helping clients perform their exercises about two months before her injury. She complained to her employer that the exercises were too difficult. The worker was performing exercises with a lady who had multiple sclerosis. She would perform the exercises once per week on Mondays. The worker noted that she would position her knee on the bed in a bent position. She would lift and manipulate the client’s leg (a dead weight of about 50 lbs.) and thinks she twisted the knee going from one position to the other.
The worker further advised the adjudicator that her right knee became sore a couple of weeks before she was seen by her own doctor on January 18, 2007. She felt a dull ache in her knee. As she continued to do the client exercises, she had some pains. Around April 15, 2007, her knee and leg were swollen and she was unable to step up or down. By May 1, 2007 her pain was better. She had x-rays taken on January 18, 2007 and the doctor thought it was arthritis. The worker said she went to a walk-in clinic on April 28, 2008 and was told that she may have gout or a torn ligament. She then returned to see her own doctor on May 1, 2007 and was told she had a strained knee.
The worker indicated that she did not lose any time from work prior to May 1, 2007 and continued to do her regular duties. She advised her employer of her injury on April 30, 2007 after she was told by her doctor that she had a torn ligament. She said she delayed in reporting her injury to the employer because she thought she had arthritis and because she could not afford to have her hours cut back. The worker advised that she told a co-worker that her knee was bothering her and she showed the co-worker her swelling.
The adjudicator contacted the co-worker on May 8, 2007. The co-worker indicated that 3 weeks ago, the worker mentioned that her injury may have occurred when she was giving exercises to a client but she was not sure. The co-worker stated she did not notice any visible signs of difficulty and no limping. She saw a little swelling on the worker’s right ankle.
The adjudicator contacted the employer’s Resource Coordinator (“RC”) on May 8, 2007. The RC recalled that the worker began doing client exercises around December 2006. At that time, the worker complained that the exercises she performed were too difficult but she related the difficulty to her back and small stature but did not relate it to her knee. At the end of March 2007, the worker again reported to the RC that she was having difficulty with the exercises because she is of small stature and because of her pre-existing low back condition. There was no mention of the knee. An occupational therapist was sent by the employer to assess whether the worker was capable of doing the exercises (relative to the low back strain/small stature). The occupational therapist determined that the job duties were safe. The worker reported her injury on April 30, 2007 and there were no complaints about the knee prior to that date. The RC noted that the worker reported a variety of time frames for her injury. She began by stating that her difficulties began 3 weeks prior to April 30, 2007 and that she was symptomatic on the weekends. The exercises would have been done on Monday which meant the symptoms were not occurring until 5 to 6 days after the exercises were done. The RC noted that the worker mentioned that she thought she had arthritis but did not report this because that would not be work related. On April 30, 2007, the worker asked the RC not to send her to a specific client as the exercises required her to twist her knee and that was what was causing her knee difficulties.
Medical information confirms that the worker underwent x-rays of her right knee on January 18, 2007 and no significant bone or joint abnormality was demonstrated.
A report received from the treating physician dated May 15, 2007 revealed that the worker was initially seen on January 18, 2007 with complaints that her right knee gave out occasionally. Crepitus in the knee was detected and the worker was sent for an x-ray. When next seen on May 1, 2007, the worker indicated that her knee had flared up over the weekend and she saw a doctor at another clinic. Her whole leg was swollen. The worker remembered that she was trying to put corrective stockings on a large patient who was like dead weight. Her knee had been bent at that time. Examination demonstrated tenderness below the patella and no swelling. The worker was prescribed medication and was given a note to return to work but with no squatting or kneeling. The worker returned to the clinic on May 3, 2007 complaining she had been laid off due to the restrictions and requested that her disability be changed. The examination still showed a tender right knee with crepitus. The doctor stated that he initially thought the worker had osteoarthritis but presently thought she had a right knee strain/sprain. The worker’s chart mentioned that the worker complained of her left knee bothering her in 2005.
A doctor’s first report dated May 24, 2007 from another family physician revealed that the worker sought medical treatment on April 28, 2007. The worker was diagnosed with internal derangement of the right knee. No accident description was outlined.
On May 28, 2007, the WCB denied the worker’s claim for right knee difficulties. It was the opinion of the WCB that an accident had not been established due to the following factors:
· an inconsistent accident history to the healthcare provider and the employer;
· there was no increase in the worker’s job duties;
· no specific event was identified to account for her right knee difficulties;
· no one was aware of the worker’s difficulties until after she sought medical treatment; and
· the worker’s delay in reporting.
A report was received from an orthopaedic specialist dated September 26, 2007. The report indicates that when questioned about her right knee problem, the worker mentioned also having problems with her back. She was working doing exercises with a client with her knee on the bed, attempting to lift the patient’s leg. She stated her knee began to become quite painful, the whole knee was painful and in the process she also had some swelling of her knee. He noted that the worker had been off work for four months and presently was experiencing sharp pains at times in the back of her knee. Following his examination, the specialist opined that the worker had evidence of chondromalacia of the patella and that she may have a tear of the medial meniscus of her knee. An MRI was arranged.
On November 2, 2007, the worker was advised of the WCB’s position that after reviewing the report from her specialist, no change would be made to the decision to deny her claim. On January 8, 2008, the worker appealed the decision to Review Office.
In a decision dated March 5, 2008, Review Office determined that the claim for compensation was not acceptable. After considering the various medical reports on file as well as the information provided by the employer and several co-workers, Review Office found that the evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of her employment which resulted in her seeking medical attention for a right knee injury on January 18, 2007. On March 13, 2008, a worker advisor appealed this decision to the Appeal Commission and a hearing was arranged for June 3, 2008.
After the hearing, the appeal panel requested additional information from the orthopaedic specialist. This consisted of consultation reports from September 26, 2007 forward, MRI results and a January 2008 operative report. The MRI confirmed that the worker had moderate degenerative changes in the medial femorotibial compartment and degenerative fraying and attrition of the medial meniscus. A small partial horizontal tear was suspected along the free edge on the medial side of her knee at the meniscal tear. On January 29, 2008, the worker underwent surgery for a tear in her right medial meniscus and chondromalacia.
On July 22, 2008, the appeal panel met to further discuss the case and considered a final submission from the worker advisor dated July 9, 2008.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
The key issue to be determined by the panel deals with causation and whether the worker’s right knee condition arose out of and in the course of her employment.
The worker’s position:
The worker was represented by a worker advisor at the hearing. The argument put forward by the advisor focused largely on the failure to report and it was submitted that although the worker delayed in reporting the injury to her employer, the reason was because she believed, on her treating physician’s advice, that she simply had arthritis and so she continued to work through the pain. It was not until the pain became worse in April 2007, that she finally made application for WCB benefits.
The advisor quoted subsection 17(5) of the Act which creates a bar to any claim for compensation where there is a failure to give notice and submitted that the failure to report ought to be excused as the worker’s claim was a just one.
At the hearing, the worker testified that prior to working with a particular client, she had absolutely no problems with her right knee. Commencing in approximately December, 2006, she began doing leg exercises with the client, which required the worker to get on the patient’s bed on her knees, and mobilize the client’s leg. At the hearing, the worker reviewed the types of exercises she performed with the client and demonstrated some of the mechanics of how they were done. Generally speaking, the worker would be on her knees on the bed and she would have to lift the client’s leg and move it up and down and from side to side. Sometimes the worker would have to shift to a new position and so she would be “walking” on her knees on the bed, all while supporting the client’s leg with her hands.
The worker’s evidence was that starting in approximately January, she began having pain in her right knee. She also experienced some swelling and so she went to her treating physician to have her knee examined. X-rays were taken but showed nothing. The worker testified that her treating physician told her that it was arthritis. She accepted this advice and continued to work. She was able to perform all of her regular duties, albeit with pain. The worker stated that she knew that many people have arthritis and so she did not report or complain about her knee to her employer. The worker continued to work her regular duties but the pain got progressively worse. By the end of April, 2007, the pain became a sharp pain on the back of her knee which went down her calf. At that point, the worker felt that she should go to a doctor. She went to a walk-in clinic on the weekend immediately after her shift and was told that given the degree of swelling, she should go to a sports medicine clinic the following week. The worker chose instead to go to her treating physician, who then referred her to an orthopedic surgeon.
The WCB file did not document the worker’s treatment with the orthopedic surgeon so this information was requested by the panel following the hearing. The orthopedic surgeon provided the panel with a report dated June 26, 2008 which indicated the following:
- An MRI done on October 4, 2007 demonstrated that the worker had moderate degenerative changes of the medial joint of her knee. It also demonstrated that she had evidence of a tear of the medial meniscus;
- On January 29, 2008, the worker had arthroscopic surgery of her right knee. A partial medial meniscectomy was performed as well as a chrondroplasty of the medial femoral condyle and tibial plateau and patella. The orthopedic surgeon’s comments were that he noted that the worker had a tear of the medial meniscus as well as chrondromalacia of the medial side of her knee and the patella;
- Following surgery, the worker continued to complain of problems with pain in her knee;
- On the last visit on June 18, 2008, the worker was having continuing problems with her right knee. There was a recent incident where she fell due to her right knee giving out. On examination, the worker had pain with range of motion of her knee, but no significant ligamentous instability. An MRI demonstrated that the worker had moderate tibial femoral degenerative changes and post-surgical truncation of the medial meniscus. There were degenerative changes of the medial side of the worker’s knee where she had the meniscal tear. Clinically, the orthopedic surgeon’s impression was that the worker would not benefit from further surgery on her knee.
The worker also testified as to her daily activities. Outside of work, she was unaware of any other activities which could have caused the tear. She does not engage in gardening, and stated that when she comes home from work, she generally does some housework, then takes the dog for a walk. She does not engage in any non-work related activities which would require kneeling.
Analysis:
The issue before the panel is claim acceptability and whether the worker’s right knee condition arose out of and in the course of her employment on March 1, 2007. In order for the appeal to be successful, the panel must find that the worker’s right knee condition is related to the duties performed by the worker in the course of her employment. On a balance of probabilities, we are not able to make that finding.
In coming to our decision, the panel relied on the following evidence to conclude that the worker’s right knee condition is not related to her job duties:
- The timing of the worker’s reporting does not support a finding that there was an acute workplace injury. The worker’s report identifies March 1, 2007 as being the date of the accident, although at the hearing, she indicated that she first started having pain in January 2007. Throughout the period from January, 2007 to the date of reporting on May 2, 2007, the worker continued to carry out all of her regular duties. The worker stated that initially, she was able to work through the pain, but it got progressively worse, and by the end of April, 2007, it became a sharp pain for which she sought medical treatment;
- According to the employer’s RC, at the end of March, 2007, the worker complained about the job duties, but only in the context of her small stature and pre-existing back condition. She did not complain about her knee. An occupational therapist performed an assessment in April, 2007 to assess whether the duties were safe vis-à-vis the worker’s back.
- The job task described by the worker of lifting the client’s leg typically does not involve any torquing of the knee, which would be required to cause a tear;
- Even if the worker did move awkwardly and cause a tear, she continued to be able to perform all her duties. If a tear had been caused by working with the client, one would expect a sudden onset of pain, as opposed to the gradually worsening pain which was described by the worker;
- There is considerable evidence of degenerative changes in the worker’s right knee. The worker has had two MRIs, both of which indicated moderate degenerative changes. The arthroscopic surgery report indicated chondromalacia of the medial side of her knee and the patella. The orthopedic surgeon also confirmed that the worker has degenerative changes in her knee and did not recommend any further surgery.
In the panel’s opinion, on a balance of probabilities, the worker’s continuing problems with her right knee are not related to the job duties. There is evidence of degenerative changes which are more likely the cause of the worker’s ongoing pain and disability.
The panel notes that although the worker advisor referred to subsection 17(5) of the Act, the issue before the panel is that of claim acceptability. Further, the WCB did not rely on section 17(5) to bar the worker’s claim for compensation due to failure to report, and accordingly, the panel is not in a position to address this issue.
For the reasons stated above, the panel finds that the worker’s right knee condition is not related to her job duties. The claim is therefore not acceptable. The worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of August, 2008