Decision #132/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) for work related injuries to her back and both knees that she sustained at work in early November 2007. The claim for compensation was denied by primary adjudication but was accepted by the Review Office on May 12, 2008. Review Office determined from its review of the medical evidence that the worker’s knee injuries were caused by kneeling during her work activities. The employer’s representative disagreed with the decision and filed an application to appeal with the Appeal Commission. A file review was held on September 10, 2008 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On November 6, 2007, the worker filed a claim with the WCB for problems she was having with both knees and her upper back that occurred on November 2, 2007. The worker related her injuries to the work she performed in a warehouse which involved lifting heavy boxes and kneeling on a cement floor which placed direct pressure on her knees. The worker also referred to a job she performed which involved opening the branches of a 12 foot Christmas tree where she had to climb a ladder and stretch to open the top branches of the tree and kneeling to get to the middle branches. With regard to the onset of her symptoms, the worker said she first noticed symptoms in the fall of 2007 and that the pain in her knees progressively got worse. She indicated that her knees sometimes “pop”. The right knee started first and her left knee just happened last Thursday. The worker indicated that she told the “Fill Team Manager” in the fall of 2007 that her knees were really hurting.
On November 7, 2007, a WCB adjudicator spoke with worker’s manager who was disputing the potential acceptance of the claim. The manager indicated that she was working with the worker on the day of injury and she did not make any complaints or seemed to have any difficulties. The worker called in on November 3, 2007 stating that she hurt her back and knees when she climbed up a ladder to fluff out a Christmas tree. The worker had been stocking which required a lot more lifting of heavier items such as microwave ovens and this was more repetitive in nature. The worker was then placed in the seasonal department and was helping with Christmas decorations. The weight of these items were under a pound and were not repetitive.
The employer provided the WCB with statements from two co-workers. Both individuals were not aware of the worker complaining of any knee or back difficulties. It was indicated that the boxes were never too heavy for the worker and there were always other staff members nearby if she needed help.
When speaking with a WCB adjudicator on November 8, 2007, the worker indicated that she hurt her left knee when she was lifting a box in the warehouse. As she turned she did not see another box and ended up bashing her left knee. Since then she is having difficulty bending it and climbing up and down stairs. There was visible inflammation and a lump on the side of her knee. She was later told to help out with Christmas trees. She said she did not report the injury as she felt her manager would not have taken it seriously. The worker noted that when she let her manager know that she hurt herself before, the manager just said that everyone gets hurt. The worker indicated she did not want to go back to work and thought the job was too physical and heavy for her. The worker indicated that she was having difficulty with her right knee which she thought happened a few days earlier from moving all the seasonal items. She said she felt pain in her right knee when she leaned on it while putting charcoal away. She did not report this incident to her employer.
On November 15, 2007, the employer’s manager was contacted by WCB staff to obtain additional information regarding the worker’s regular job duties. The manager stated that the worker had done stocking since June and had been working in seasonal for 4 to 6 weeks and lifting less weights. Kneeling would occur a maximum of 30 minutes a day and would not be continuous. They have knee pads for kneeling if someone hurt their knees. The worker never said she was having symptoms. When stocking, staff walk around with a gray cart at mid level and stock shelves. There was no repetitive crouching.
On November 15, 2007, the worker advised the WCB adjudicator that she developed bursitis in her right knee from repetitive kneeling and in the left knee from bashing it into other boxes.
On November 20, 2007, the employer clarified to the WCB that the worker’s date of accident was November 1, 2007. November 2, 2007 was her day off. On November 3, 2007, the worker called in to report that her knee was hurting.
The worker sought medical treatment for her right knee on November 1, 2007 and for her left knee on November 8, 2007. The diagnosis rendered was bilateral intrapatellar bursitis.
On November 14, 2007, the treating physiotherapist advised the WCB that the worker had patchy swelling symptoms on her knees that were suggestive of repetitive kneeling.
The case was reviewed by a WCB medical advisor on November 14, 2007. It was indicated that the diagnosis of bilateral intrapatellar bursitis was a condition which can arise through the action of kneeling for sustained periods of time.
In a decision dated November 15, 2007, the worker was advised that no responsibility would be accepted for her claim as the WCB was unable to establish that her job duties caused bursitis in her right knee. It was noted that the worker continued to work with no apparent difficulties. With respect to her left knee condition, the WCB noted that the worker delayed in reporting to her employer, her physician and to the WCB. It stated that the incident reported to the employer (i.e. her injury was caused by arranging trees) was different than what was reported to the WCB (i.e. bashing her knee on a box). As a result, it was the WCB’s position that the evidence on file did not establish she suffered a personal injury by an accident arising out of and in the course of her employment. On November 21, 2007, the worker appealed this decision to Review Office.
On November 11, 2007, Review Office determined that the worker’s claim for compensation was acceptable and that she was entitled to wage loss benefits and reinstatement of physiotherapy treatment. In reaching its decision, Review Office indicated there was consistent reporting of a work related condition to the WCB, the worker’s physician and to her physiotherapist. The medical evidence showed that the worker’s knee condition was consistent with kneeling on hard surfaces and that the employer confirmed that the worker would kneel up to 30 minutes per day in her job. It stated there was no evidence to show that the worker was kneeling on a hard surface more in her personal life than in the workplace. On December 18, 2007, the employer appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act), regulations and policies made by 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.
Employer’s Position
The employer, through its advocate, appealed the WCB Review Office decision accepting the worker’s claim. In support of the appeal, the employer’s representative provided a written submission dated March 20, 2008. The representative reviewed the claim history and submitted that “there is simply no proof that an accident/disablement occurred noting the inconsistencies in accident histories and delays in reporting, medical attention as well as the lack of complaints in the workplace.”
The representative wrote that:
“In her message to her manager on November 3, 2007 she indicated that she injured her back and knees when she climbed up a ladder to fluff a Christmas tree. In her statement to the adjudicator on November 8, 2006 she provided an entirely different history. She maintains she struck her left knee on a box on November 1, 2007 and the right knee was the result of leaning on it when putting charcoal away. There appears to have been little or no history provided to the therapist outside of the charcoal incident. Her worker’s report of November 6, 2007 provides a very detailed history suggesting significant time spent on her knees.
During the period despite continued and increasing discomfort there were no complaints to coworkers or management of problems with her knees. She sought no medical attention until 4 days after she stopped working. Her report of accident to her employer on November 3, 2007 did not include any of the details outlined in her report of November 6, 2007. In fact the rather significant striking of her knee was not mentioned at all in this report. It was not until she spoke with the adjudicator on November 8, 2007 that she mentioned the striking of her left knee.
In addition, [WCB medical advisor] suggests that a cause could be sustained kneeling over time. He indicates 1 hour as an example of continuous kneeling. The employer in her statement to the adjudicator on November 15, 2007 indicates the maximum kneeling might be 30 minutes in a shift. Even if one accepted a longer period (i.e. 1 hour) over a shift, it is not continuous and therefore not sustained.
While she has denied any outside influences involving her knees we believe it is unreasonable to simply state that in the absence of outside causation it must be work related. It is the employer’s position that proof of an accident or disablement associated with [the worker’s] employment has not been established.”
Worker’s Position
The worker provided the employer with a letter on April 8, 2008 but was not able to attend a hearing. In the letter the worker advised that her duties on the “fill team” were at times strenuous, especially when she had to handle large items like propane tanks and pool accessories. Regarding information from co-workers that she did not complain about an injury, she advised that she did not complain incessantly. She refuted various statements made by her employer and co-workers in letters that were provided to the WCB by the employer.
The worker advised that no injury took place while she was climbing the ladder or while she was on the ladder. She advised that her knees did sustain excessive strain while she was fanning out lower parts of a Christmas tree and it was necessary to kneel.
Regarding communications with the employer, the worker advised that she called the employer on November 5 and advised that she was injured. She did not think it was necessary to call the employer again on November 6 to advise that she would not be at work.
Analysis
The employer is appealing the acceptance of the worker’s claim. For the employer’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a personal injury by accident arising out of and in the course of employment, or in other words, the worker was not injured at work. The panel finds that the worker did not have a workplace injury and that her claim is not acceptable.
The panel notes that the worker’s primary complaint related to her knees. The worker identified different causes for her knee pain. The worker’s report of injury notes that she has to lift heavy products and put them on bottom shelves. The weight of the product places pressure on her knees. This can be done repetitively and is stressful to her knees. She also identified kneeling on the cement floor in the warehouse as a problem. In a telephone conversation on November 8, 2007, she told WCB staff that she was lifting a box in the warehouse and as she turned bashed her left knee into another box. She attributed her right knee pain to moving seasonal items, specifically mentioning moving charcoal. She also said that her knees became sore while she was kneeling and setting up a Christmas tree.
The panel notes that a WCB medical advisor has diagnosed the worker’s knee problems as bilateral intrapatellar bursitis. He said that this condition would require kneeling for a period of time (one hour) or a direct blow to both knees.
The panel notes that this is a bilateral condition affecting both knees yet the worker only reported having banged her left knee. Given this information, it is unlikely that her bilateral knee conditions are simultaneously caused by a blow to the left knee and work activity for the right knee. The panel has considered the information on the worker’s various job duties and finds no sustained kneeling and accordingly is unable to relate the diagnosis to the worker’s job duties. In this regard, the panel notes that the employer has estimated a maximum of 30 minutes of kneeling each day. The panel also notes the co-workers’ statements that the worker did not complain about knee pain at work. The panel is unable to find, on a balance of probabilities, that the worker injured her knees at work.
Regarding the worker’s complaint of back pain, the panel notes that the worker’s chiropractor advised in a report dated January 16, 2008 that the worker had mentioned back pain, but that this pain is a chronic problem no different than past complaints she had of stiffness and achiness ss related to work and everyday life. He also reported that he had nothing objective related to a specific injury. The panel is unable to relate the worker’s back complaints to her employment with this employer.
The worker’s claim is not acceptable and the employer’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of October, 2008