The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations, and policies made by the WCB Board of Directors.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury describes the tests used in determining whether the WCB (and this panel) can accept a further injury as being causally related to the original compensable injury. This policy provides:

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 direct specific control; or

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

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Worker’s Position:

The worker’s position was provided to the panel with the assistance of a worker advisor. The worker advised that she had started physiotherapy for her left knee injury within a week of that injury. As part of that treatment, she was provided with a series of exercises at home which started with stretches and eventually added a number of other exercises, including the step up/down exercise that led to her right knee injury. The worker noted that the time spent by her at the physiotherapist’s office was relatively short in duration, and that she was carefully coached in how to do the exact same exercises at home as she was doing in the physiotherapist’s office. She advised that the riser she used at home was exactly the same as the one used in the physiotherapist’s clinic, the floor surface was the same in both locations (low pile carpet) and she did the exercises barefoot at both locations as well. As for the specific exercise she was performing at home (at the time of her right knee injury), the worker demonstrated the lateral step exercise to the panel. This exercise required her to stand to the right of the riser, lift her left foot up and to the side onto the riser and rise up (right foot in the air) and then down, landing on her right foot and then bringing her left foot down beside her right foot. She had done four or five repetitions when she felt the onset of her right knee pain. She reported this to her treating physician the next day.

The worker advisor argued that the WCB had approved the physiotherapy treatment, and that as part of the left knee treatment, the physiotherapist recommended and instructed the worker in home exercises. While performing those exercises, the worker injured her right knee. The worker advisor submits that this situation falls under portion (iii) of the policy, namely that this further injury arose out of the delivery of treatment for the original compensable injury.

The Employer’s Position:

The employer was represented at the hearing by an advocate. He submitted that the worker’s right knee condition was degenerative in nature, and that the physical rehabilitation was incidental to this condition and not instrumental in the development of the tear. He noted that it was difficult to see how the prescribed exercises performed by the worker at home could have caused such a severe trauma to the knee, and that the causes of the injury were thus the pre-existing degeneration and osteoarthritis in the right knee.

Analysis:

For the worker to succeed on her appeal, the panel would have to find that her right knee injury qualified as a “further injury” under one of the three tests set out in WCB Policy 44.10.80.40. After consideration of all the evidence on the file and from the hearing and after consideration of the positions put forward by both parties, the panel was able to make this finding. More specifically, the panel finds, within the facts of this case, that the further injury arose out of the delivery of treatment for the original compensable injury.

The panel places significant weight on the following:

• The worker was still in the acute phase of her left knee injury. She was involved in an active treatment program supervised by a physiotherapist. These treatments had been approved by the WCB.
• The worker’s left knee required extensive treatment which started almost immediately after her workplace injury, and she was in the midst of this treatment when the second incident took place on September 29, 2008. (The panel notes this treatment plan ultimately failed, later requiring surgery which was approved by WCB) .
• The worker was seeing her physiotherapist three times a week until September 12, and then twice per week from September 14 and on. She saw him for treatment on September 15, 18, 23, 25, and on the day of the injury itself, September 29.
• As well as undergoing treatment programs at the physiotherapist’s office, the worker was instructed on both stretching and strengthening exercises for her to perform at home. The worker’s evidence is that these exercises were identical to those done in the office. She was monitored in the office, and coached on how to do them at home. The equipment she used at home for the stepping exercise was the same as the riser used at the physiotherapist’s office. She did the stretching exercises three or four times a day at home, and the strengthening exercises once or twice a day.
• The physiotherapist had recommended that these exercises be done at home, to augment the treatment that was being done in his office. The panel notes that the worker’s treating physician has lent his support to the worker’s position in his letter of September 30, 2008 to the physiotherapist, that her injury arose as a direct consequence of her home-based rehabilitation of her left knee injury.
• The panel notes that the specific lateral step exercise being performed by the worker had an element of lateral force (to the right and left) as well as weighting and unweighting of the right leg. The panel acknowledges that this particular exercise (and the associated mechanism of injury) would not usually be expected to cause a major tear in a normal knee, but notes that the worker had a significant pre-existing right knee medical condition. It is the view of the panel that the mechanical stresses of the exercise led to the medial tear of an already vulnerable right knee and in particular, a degenerative right medial meniscus. This was an acute event that occurred during a specific exercise, and not a gradual onset condition that coincidentally arose at that point in time. The panel notes in fact that the worker’s original left knee injury arose in similar circumstances, where less than expected mechanical forces led to a compensable injury in a compromised left knee.
• The panel further notes that the worker was highly compliant with the treatment regimen set out by her physiotherapist. The worker was a motivated patient, and was actively involved in a carefully structured program in which she was doing the same exercises at the clinic and at home under the careful supervision, monitoring, and coaching of her physiotherapist. The panel finds that the worker’s self-delivery of the physiotherapist’s assigned home treatment was completely consistent with that being provided (or monitored) by her treating physiotherapist, and may be considered to be part of “the delivery of treatment for the original compensable injury”, as per portion (iii) of the policy.