The Appeal CommissionThe Workers Compensation Act of Manitoba

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)

WCB Policy 44.10.80.40 – Further Injuries Subsequent to a Compensable Injury is applicable to cases where there is a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides in part as follows:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

The key issue to be determined by the panel deals with causation and whether the worker’s meniscal tear which required arthroscopic surgery was causally related to his compensable injury.

The worker’s position:

The worker was assisted by his union representative at the hearing. The position argued by the union representative was that:

• Firstly, there were inadequacies in the initial medical assessment of the injury and as there were no x-rays or MRI performed, the severity of the injury may have been underestimated;
• Secondly, too much weight was given to the absence of pain and conversely, very little weight was given to the intermittent locking phenomena within the worker’s knee joint;
• The evidence of co-workers confirms that the worker had ongoing complaints with locking in his knee. The worker’s supervisor appeared at the hearing to give evidence in this regard;
• There was more than adequate medical support for a causal connection between the original twisting-related injury and the subsequent damage to the knee six months later;
• Lastly, it was submitted that the injury would be better defined as a recurrence, as opposed to a new and separate accident, thus garnering full entitlement to benefits being reinstated.

It was submitted that prior to twisting his knee at work, the worker had a healthy, symptomless knee. Following the twisting type injury, the knee never healed and would lock intermittently. This led to the eventual, significant locking episode, which had its origins in the workplace accident. Had the knee not given out while on holidays, it would have happened after any number of common job-related kneeling scenarios which were part of the worker’s job duties.

The employer’s position:

A representative from the employer was present at the hearing. The submission on behalf of the employer focused on the fact that no medical treatment was obtained by the worker from July 19, 2002 to January 24, 2003. At the time of the July 19, 2002 examination, there was no indication, nor suspicion, of any ligament damage and the worker was instructed to resume his regular duties the next morning. Although there are statements from co-workers attesting to the degree of problems experienced by the worker during the intervening period, the accuracy of these recollections was questioned. It was noted that there was no medical corroboration for that period. The panel was invited to apply WCB Board Policy 44.10.80.40 and it was submitted that it could not be said that the injury that occurred in January, 2003 was predominantly attributable to the compensable injury that occurred on July 19, 2002. The preponderance of evidence overwhelmingly pointed to a new and separate incident occurring in January, 2003, which resulted in surgical intervention and time loss.

Analysis:

The issue before the panel is whether the worker is entitled to benefits and services beyond July 19, 2002. To accept the worker’s appeal, the panel must find that benefits and services were required after July 19, 2002 as a consequence of the compensable workplace injury. On a balance of probabilities, we are not able to make that finding.

The crux of the case revolves around whether the worker’s right knee condition which required medical treatment after his return from Mexico in January, 2003 was attributable to the July 19, 2002 workplace incident, or whether it was attributable to some other activity, such as playing beach volleyball while vacationing in Mexico.

In the panel’s opinion, the worker’s right knee condition after his return in January, 2003 cannot be said to have been predominantly attributable to the compensable injury. The predominant cause was playing volleyball while on vacation.

The panel accepts that the worker may have suffered a meniscal tear to his right knee in the course of his employment on July 19, 2002. The medical reports, however, suggest that the injury on that date was of a minor nature, and the worker’s evidence at the hearing was that his knee was mostly asymptomatic, but for periodic episodes of locking which occurred intermittently. The panel finds that the workplace knee injury was one which could be long-standing in nature, but it did not require any treatment and allowed the worker to continue in a fully functional capacity. Although he occasionally experienced pain from locking, the worker suffered no disability or impairment to his earning capacity as a result of this injury. The evidence discloses that during the period from July 2002 to January 2003, the worker had no visits to his general practitioner, no follow up appointments, could perform full work duties, was able to fully participate in recreational activities (including playing beach volleyball in Mexico on 2-3 occasions prior to the game in which he injured himself). He suffered only infrequent and decreasing instances of right knee locking prior to his vacation. At the hearing, the worker’s supervisor expressed full confidence in the worker’s ability to fully perform all of his duties. Overall, there was no indication of declining function, impending difficulties, nor limitations on the worker’s job performance. The panel’s impression was that this was not a deteriorating condition.

After his return from Mexico, the worker exhibited greater problems with his knee. Within days after he returned, the worker went to a sports medicine physician for treatment. Anti-inflammatories and physiotherapy were prescribed and the worker was referred to an orthopedic surgeon. At the hearing, the worker testified that on approximately February 21, 2003, he suffered further aggravation to the knee while off-duty. He was getting out of his truck at the gym when he twisted his knee and suddenly felt increased pain. His evidence was that at this point, he went off work due to the condition of his knee. Ultimately, arthroscopic surgery was performed, from which the worker has fully recovered. Since July 15, 2003, he has incurred no further time loss in respect of his knee injury.

The test to be applied is outlined in WCB Policy 44.10.80.40. It states: “A further injury occurring subsequent to a compensable injury is compensable…where the cause of the further injury is predominantly attributable to the compensable injury.”

In the panel’s opinion, the time loss from work, physiotherapy, medication and ultimately the arthroscopic surgery were not predominantly attributable to the July 2002 injury. That injury was stable. The post January 2003 difficulties were all predominantly attributable to the volleyball incident.

There is support for this finding in the more recent medical reports of the orthopedic surgeon and the occupational health physician. In a letter dated February 8, 2008, the orthopedic surgeon acknowledged that the worker could sustain a meniscal tear and locking with a rise from a squat, i.e., on his knees in the sand and jumping up. He also wrote that it is possible that the initial problem could have been a meniscal tear, either remaining stable or of a smaller nature which was further aggravated over time, coming to a significant locking episode on the vacation. The orthopedic surgeon stated that: “There is no objective way to define this and it will simply be up to someone’s judgment to make the call.”

In the occupational health physician’s report to the worker of April 22, 2008, he opines that: “It is likely that you may have enhanced the injury during your vacation to Mexico.”

Overall, the panel finds that the worker’s loss of earning capacity after July 19, 2002 (and specifically, subsequent to January 24, 2003) was not caused by the original workplace accident. There is no evidence of medical aid or wage loss from July, 2002 to January 24, 2003. After the workplace accident, the worker remained functional and capable of performing all his duties. It was not until after his volleyball incident (or, perhaps, the February 2003 knee twisting incident which occurred when he was getting out of his truck) that the worker became disabled from performing his duties and required surgical repair of his right knee.

The panel notes that although the Review Office decision relied on WCB Policy 44.10.20.50 – Recurring Effects of Injuries, we find that this Policy is not applicable to the facts of this case. In our opinion, Policy 44.10.20.50 was drafted to assist in the calculation of wage loss benefits, as opposed to providing adjudicative assistance. Although Policy 44.10.20.50 provides guidance on establishing the difference between a new accident and a recurrence, this is in the context of a previous finding that the injury in question is compensable (but may not have healed). We do not think that this Policy is directly applicable to a situation where the question to be determined is whether or not a subsequent injury to an anatomical area for which coverage was previously accepted constitutes a recurrence of the first compensable injury, or a new incident which may, or may not be, compensable in nature.