Decision #50/09 - Type: Workers Compensation

Preamble

On May 16, 2008, the worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee injury that he related to his job activities as a banquet service attendant. The claim for compensation was denied by primary adjudication and Review Office on the grounds that the file evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of his employment. An appeal was filed and a hearing was held on March 3, 2009 at which the worker and his union representative were present. No one appeared on behalf of the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 14, 2008, the worker reported a right knee injury to his employer. In the Worker’s Injury Report, the worker wrote that on the second day of his shift, April 29, 2008, he experienced mild pain in his right knee just beneath the patella that he thought would go away, but after two weeks of worsening pain, he went to see his family physician who diagnosed his condition as patellofemoral syndrome. The worker described the pain as moderate-severe when crouching to lift trays of dishware while clearing tables or crouching and carrying trays of meals.

According to the Employer’s Accident Report dated May 14, 2008, the worker reported that during his shift on April 29, 2008 his right knee hurt when crouching. The report noted that the worker was a nursing student who had this type of injury before to his left knee that was not work related.

The Doctor’s First Report notes that the worker was examined on May 14, 2008 for complaints of a very tender and painful right knee. The report indicates that the worker described the accident as occurring on April 30, 2008 when the worker was crouching to lift trays with a gradual increase in the right knee pain underneath the patella. The doctor indicated a diagnosis of patellofemoral syndrome and noted that the worker was unable to work in his regular duties but was capable of modified duties with no bending of his right knee for 6 weeks. Athletic therapy was recommended.

The worker sought treatment from a physical therapist. The physiotherapist’s report noted that the worker had very tight external rotators of the hip; hind foot pronation (feet rotated inward); genu valgus (knees angled inward); and a stable knee. The therapist diagnosed the worker’s condition as mechanical knee pain/PFPS [Patella Femoral Pain Syndrome] and recommended orthotics and a home stretching program.

On May 21, 2008, the WCB adjudicator spoke to the worker. According to the memorandum on file, the worker advised that he was diagnosed with patellofemoral syndrome 10 years ago caused from the use of his car’s performance clutch and that he attended therapy and had been symptom free since that time. The worker stated that his symptoms began on the second day of his shift and he related his condition to crouching when clearing tables and when placing food on the table. The worker said that the tables were approximately 3 feet tall and he had to “squat all the way” to the bottom to clear tables or when placing food on tables. He had to bend his knee approximately 135 degrees to clear the dishes. When clearing and taking meals, he had to crouch approximately 20 to 30 times a shift. The worker started light duties after he filed his claim and did not miss any time from work.

The WCB adjudicator sent an email to the employer asking whether the worker needs to crouch down in order to clear the tables or when placing food on tables. The employer replied by email dated May 23, 2008 that the tables were approximately 3 feet high but that the worker “did not need to crouch when clearing tables or placing food on tables.” In response to a further email from the WCB adjudicator asking the employer to check to see if anyone had seen the worker crouching down to clear tables, the employer wrote in an email, “I just spoke with [name], our Banquet Manager, who saw [the worker] prior to having to go off and the only bending that has to be done at tables is at the waist. If he is bending to pick up a tray, he does have to crouch down but that is off a tray stand, not to clear a banquet table.”

In a letter dated June 4, 2008 the WCB adjudicator advised the worker that the WCB was unable to accept responsibility for his claim concluding that there was no relationship between the worker’s patellofemoral syndrome and his work duties. The letter noted that patellofemoral syndrome is a degenerative condition that may result from acute injury to the patella or from overuse “such as by applying excessive force to the patella via exercises as squats or leg presses”. In reaching this opinion, the adjudicator noted that no specific accident was identified and that the worker related his right knee difficulties to “crouching”. However, the WCB adjudicator was of the opinion that deep knee bending or crouching was not required in the performance of the worker’s job duties. The adjudicator concluded that the file evidence indicated that the worker’s right knee difficulties were a result of a condition that did not arise out of and in the course of his employment.

In a submission dated September 24, 2008 requesting reconsideration of the adjudicator’s decision, the union representative attempted to clarify the worker’s job duties in order to show that the adjudicator was incorrect in concluding that the worker’s job duties did not involve crouching when clearing tables. The union representative described the process as follows:

“The meals are picked up from an 8 foot table and then carried to the table where the food is served. The process is reversed when [the worker] clears tables. He carries the trays of dirty dishes to the 8 foot table and then crouches to leave the dishes at this table. [Name], the Assistant Banquet Manager instructed [the worker] how this should be done. Her instructions were that the serving personnel must crouch almost to the ground, then take the tray and balance it on the palm of the hand. Then with the tray at shoulder height the legs should be straightened and the server stands up. This procedure must be done for every trip while clearing a table and every time that meals are delivered to a table.”

In a response to the union representative dated October 2, 2008 the adjudicator noted that “[the worker] is a 5 foot 10 inch tall individual and the 8 ft tray stand is way above his height. He would have to stand, not crouch when he attempts to remove something from it.” The adjudicator advised that it remained her opinion that there was no causal relationship between the worker’s right knee difficulties and his work activities.

On October 31, 2008, the union representative appealed the adjudicator’s decision to Review Office and provided a submission pointing out the errors in the decision, firstly when the adjudicator ignored the employer’s evidence that the worker does crouch when delivering plates to and from the tray stand as opposed to that part of his duties where he bends from the waist to serve guests at their tables and secondly, in incorrectly assuming that the tray stand was 8 feet high rather than 8 feet wide and therefore wrongly concluding that the worker would not be required to bend or crouch to reach a table that was over his head. The union representative also clarified that the worker’s diagnosis 10 years previous was for left sided not right sided patellofemoral syndrome, which had healed with no recurrences since then and that the worker never had any symptoms of right sided patellofemoral syndrome prior to April 29, 2008.

According to a file memorandum dated November 18, 2008, the Review Officer contacted the employer and was advised that the worker had worked on April 26 and April 28 but not on April 29, 2008. On November 19, 2008, the Review Officer contacted the worker. The worker advised that his symptoms must have started on April 28 rather than on April 29. The worker also advised that he did a nursing practicum in March 2008 and had no problem with his knee. The worker stated that he related his right knee problems to specifically crouching when serving guests. It appears from the file that the Review Officer did not seek clarification regarding the adjudicator’s error respecting the tray stand height or the manner in which the worker performed his duties.

On November 25, 2008, Review Office denied the worker’s claim for compensation. In concluding that the worker did not suffer a personal injury arising out of and in the course of employment, Review Office referred to the following points:

· The treating physiotherapist found that the worker had positive hind foot pronation with genu valgus and that he required orthotics. Review Office was of the opinion that these conditions were pre-existing, unrelated to the worker’s employment and were known to cause knee pain;

· Review Office stated that the file evidence did not establish that the worker had a specific injury and that while the worker related his knee pain to crouching done at the workplace, the evidence did not show that the duties performed by the worker were the cause of his right knee symptoms. No reasons were provided for this conclusion;

· Review Office noted the inconsistent reporting with regard to the date that the worker claimed his symptoms began, the worker’s delay in seeking medical attention and his failure to report the injury to his employer until May 14, 2008 and stated that this made it difficult to establish a causal relationship between his right knee difficulties and his work duties.

On January 23, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The panel is of the opinion that the worker’s right knee difficulties were causally related to his work activities as a banquet service attendant.

At the hearing, the worker described and demonstrated to the panel the manner in which he was trained to deliver trays to and from a bussing station. The worker explained that the bussing station is a table approximately 8 feet wide and 3 feet high. He is required to lift 3 ft by 2 ft oval trays that are stacked with covered meals weighing approximately 25 to 35 pounds by crouching down with deep knee bends so that his shoulder is level with the 3 foot high table and positioning the tray on his shoulder and his left palm. While crouching neither of his knees touches the floor and he bends his knees more than 90 degrees. The worker then lifts the tray by straightening his knees to a standing position. The worker delivers the oval trays to serving stations in the dining room and removes the covers from the plates on the serving station and delivers individual plates to the guests. As the individual plates are not heavy, he only bends at the waist when serving the guests. After the dirty dishes are gathered and placed on the oval tray, the worker repeats the same deep knee bends to lift the trays stacked with dirty dishes from the serving station and deliver them to the bussing station.

The worker’s evidence was that he did not recall how many courses were served during the dinner when he first noticed his symptoms, but that it would have been at least 3 courses requiring that he deliver approximately 12 to 18 trays to the serving station and return 4 to 8 trays of dirty dishes to the bussing station.

The worker testified that he first noticed pain in his knee while serving a meal during his second shift in the last week of April 2008. By the middle of May, he switched to modified duties that did not involve serving for about three to four weeks. He explained that he sought treatment from the athletic therapist who ordered orthotics and taped his feet until the orthotic inserts were available. He indicated that after he started using the orthotics his knee pain lessened. He returned to regular duties after the three to four week period and continues to work his regular duties since then.

The worker testified that prior to the last week of April, he had not had any right knee difficulties and the problem with his left knee occurred 10 years ago and had not caused him any difficulties since that time.

The panel is of the view that there no significance to the error made by the worker in wrongly noting the date of his injury as April 29, 2008 instead of April 28, 2008. The file evidence confirms that the worker consistently referred to the injury occurring during the second day of his shift during the last week of April. The fact that the worker did not seek medical treatment or report the injury until May 14 reflects the nature of the injury to his knee, which gradually worsened over time. It is not surprising in these circumstances that the worker may not recall the exact date when symptoms were first noticed.

The panel also had the benefit of the detailed evidence of the worker describing the manner in which he served meals as a banquet service attendant. This evidence clearly established that the worker was required to make deep knee bends when lifting trays at various points in the meal service.

The evidence on file leads the panel to conclude that the worker likely has a pre-existing condition identified by the therapist as hind foot pronation and genu valgus (knees angled inward) that pre-disposed him to knee problems. However, patellofemoral syndrome may result from acute trauma to the patella such as that caused by deep squats and the evidence respecting the manner in which the worker performed his duties, with extreme knee bends to lift heavy trays, leads us to conclude that the worker’s job duties performed during the second day of his shift, temporarily aggravated his pre-existing condition.

The panel therefore finds that, on a balance of probabilities, the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel holds that the claim is acceptable and the worker’s appeal is allowed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 29th day of April, 2009

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