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)

The key issue to be determined by the panel deals with causation and whether the worker’s left knee complaints are related to the compensable injury she sustained on July 31, 2007.

The employer’s position:

The employer provided a written submission putting forth their position that evidence fails to establish any relationship between the lateral meniscus tear and the compensable accident of July 31, 2007. The medical evidence was reviewed in detail and it was noted that many of the objective symptoms noted in the medical reports were not consistent with the diagnosis of a torn meniscus, including absence of any swelling, full range of motion, and negative orthopaedic tests. The first occasion where the possibility of a meniscal tear was entertained was approximately 37 weeks following the initial incident in July 2007. It was submitted that if the worker had suffered the torn meniscus on July 31, 2007, she should not have been able to engage in personal activities in which she did participate, such as dog agility training. In terms of an aggravation of a degenerative condition, it was submitted that the best evidence on file does not support this theory.

The worker’s position:

The worker did not submit any written material for the Appeal Commission review, but her submissions to Review Office were on file. The submissions provided a detailed history of her knee injury and emphasized the fact that prior to the accident, her knee was fully functional, and since the accident, she has been limited in what she is able to do. The worker’s position was that the meniscal tear in her left knee was caused by her fall at work on July 31, 2007.

Analysis:

The stated issue before the panel is whether or not the worker’s left knee complaints are related to the July 31, 2007, compensable injury. In order for the employer’s appeal to be successful, the panel must find that the worker’s ongoing knee complaints were not caused or contributed to by her fall at work on July 31, 2007, for which she has an accepted WCB claim. On a balance of probabilities, we are not able to make that finding.

An MRI was performed on the worker’s left knee on May 5, 2008. Of note is the fact that the MRI was requested for the purpose of ruling out a medial meniscal tear. The MRI report noted three impressions:

• Chrondromalacic type changes of the patella;
• Lateral femoral-tibial compartment osteoarthritis, judged moderate in severity; and
• Extensive degenerative type tear of the lateral meniscus.

Although the worker argued that the lateral meniscal tear was caused by the July 31, 2007, accident, the panel does not accept that this occurred. The complaints made by the worker to the sports medicine physician in April 2008 described medial joint line pain and the MRI was ordered to rule out a medial meniscal tear. In view of the lack of complaints on the lateral side of the knee, the panel accepts the employer’s argument that the lateral meniscus tear was not caused or aggravated by the July 2007 accident.

The panel does, however, find that when the worker slipped and fell, she aggravated pre-existing osteoarthritis in her left knee. The MRI results reflected lateral femoral-tibial compartment osteoarthritis, which the panel believes was probably pre-existing and degenerative in nature. Given the worker’s evidence that her knee was fully functional prior to the accident, the panel accepts that this condition was asymptomatic prior to her workplace accident.

The finding of pre-existing osteoarthritis of the left knee is consistent with commentary made by the WCB medical advisor. In her memo of May 27, 2008, the WCB medical advisor outlined the test to be applied to determine whether there was an aggravation of the pre-existing condition and stated: “In order to say it was aggravated and remains aggravated by the workplace accident, there would have to be evidence of acute injury to the knee in July, 2007 and there would need to be evidence of continuity of symptoms and findings.” Although the WCB medical advisor went on to conclude that there was no evidence of continuity of symptoms, the panel reaches a different conclusion based on the information we have before us. We find that there was a continuity of symptoms.

The report from the worker’s second visit to the walk-in clinic physician on August 8, 2007 indicated “little or no tenderness” in the left knee. The employer relied on this report to submit that there was an almost complete resolution of her contusive type injuries. However, approximately three weeks later, she was again seeking medical attention for her left knee. By August 29, 2007, she was able to secure an appointment with her regular family physician to assess her knee. Unfortunately, due to an unrelated dog bite injury, her family physician was not able to conduct a thorough examination of her knee on that date. This nevertheless demonstrates that in fact, her left knee complaints were still continuing and had not resolved.

On September 5, 2007, the worker phoned her adjudicator to advise that she was still having difficulties with her left knee due to the injury and that she was following up with her family physician.

There was then a gap in the file documentation from September 2007 to February 2008. The worker’s explanation was that she had attempted to see her family physician during that time, but due to busy schedules (both on the part of the worker and the clinic), she was unable to secure an appointment sooner. She did state that her coworkers could confirm her continuity of symptoms.

The two co-workers were interviewed by the WCB and both were able to confirm that the worker was having more and more trouble performing certain of her duties due to pain in her knee. She had trouble stepping over low (1 to 3 foot) barriers, climbing small ladders and kneeling down. This is consistent with the worker’s evidence that she had ongoing and increasing difficulties with her knee.

In view of our findings that there was an acute injury to the knee on July 31, 2007, and a continuity of symptoms, we are able on a balance of probabilities to conclude that the worker’s left knee complaints are related to the July 31, 2007, workplace accident, specifically limited to the aggravation of her pre-existing osteoarthritis. The employer’s appeal is therefore denied.