The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s right knee difficulties were not the result of a personal injury that arose out of and in the course of his employment. A hearing was held on April 28, 2009 to consider the matter.

Following the hearing, the appeal panel requested additional medical information from a local medical clinic and an orthopaedic specialist prior to discussing the case further. This information was later received and was forwarded to the interested parties for comment. On June 10, 2009, the panel met to render its final decision on the issue under appeal and considered a final submission from the Worker Advisor Office dated May 26, 2009.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In June 2008, the worker reported to his employer that he had sore knees and that he was going to see a doctor. Medical information showed that the worker sought treatment on May 30, 2008. The diagnosis rendered by the treating physician was questionable traumatic synovitis of both knees. The worker filed a claim with the WCB and the date of accident was recorded as being April 1, 2008.

On June 10, 2008, the treating physiotherapist reported that the worker “twisted knee – continued to work +++ kneeling delayed swelling.” The diagnosis rendered was right tibiofemoral joint effusion.

On June 13, 2008, a WCB adjudicator contacted the worker to gather additional information. The worker indicated that his job duties involved bumper exchange and working as a body man. He had been with the same employer since 1994. He took off and repaired rebar, doors and fenders. There were no changes in his duties or an increase in workload. The worker indicated that he twisted his knee on April 1, 2008. He was working on the floor and twisted his knee while on the floor. He felt pain every day and the pain increased but he kept on working. The worker indicated that he went to see a doctor initially on May 30, 2008 and had several appointments after that. The worker advised that he worked his regular duties from April 1 to June 6, 2008. He told the boss’s nephew about his injury on April 1, 2008. He told him that he was having pain and needed to slow down bringing in cars because he had hurt himself.

On June 19, 2008, a different WCB adjudicator spoke with the employer. The employer indicated that the worker came to work on June 6, 2008 and stated that his doctor told him to be off work. He did not notice that the worker was having difficulties nor did he recall the worker telling him to slow down bringing in cars.

In an adjudicative decision dated June 24, 2008, the worker was advised that his claim for compensation had been denied as the WCB was unable to establish a relationship between the development of his knee difficulties and the April 1, 2008 reported work incident.

In a submission to Review Office dated July 7, 2008, a worker advisor argued that the worker’s employment duties were the most probable cause of his bilateral traumatic knee synovitis. It was suggested that the worker’s job duties which involved repetitive and sustained kneeling and crouching was the “thing that is done and the doing of which” that caused a personal injury in accordance with subsection 1(1) of The Workers Compensation Act (the “Act”). The worker installed mud flaps and running boards which required him to kneel or crouch. It was submitted that the worker’s underlying condition, in all likelihood, developed as a result of his employment duties which became symptomatic following a relatively insignificant event.

On August 14, 2008, the Review Office advised all parties that the case was being sent back to the WCB adjudicator to make a decision on the claim from the perspective of a non-specific injury to both knees.

At the adjudicator’s request, a WCB medical advisor reviewed the file and commented on the contributing factors leading to the development of traumatic synovitis in both knees. On August 29, 2008, the medical advisor stated that synovitis/effusion typically results from an acute injury to the knee joint with associated meniscal or ligament damage or from a flare up of pre-existing degenerative osteoarthrosis, typically attributed to overuse. She also indicated that workplace factors generally accepted to aggravate osteoarthritis would include repetitive knee bending and loading. Kneeling and crouching, while generally avoided due to symptom aggravation, are not believed to be specifically provocative. In summary, the medical advisor stated:

“Synovitis can be caused by a number of factors. There is no evidence of a specific traumatic event in this case beyond the purported Apr 1 twisting event which was not reported till two months later and was not associated with significant functional restriction: continued working r/d’s for two months. Synovitis may reflect an aggravation of pre existing degenerative osteoarthritis. Osteoarthritis (OA) is a disease of life, of uncertain cause, but generally accepted to be multifactorial in origin. The reported work duties would not appear to be particularly provocative of OA, ie involve excessive repetitive loading or impact stress. Kneeling and crouching, themselves would not be provocative, though could contribute to prepatellar bursitis, a condition not noted in [the worker’s] case. It is not clear that workplace duties played a material role in the development of synovitis in this case. Rather the development of synovitis was likely reflective of a degenerative condition involving the knees which is multifactorial in nature.”

In a decision dated September 10, 2008, the worker was advised that his file was reviewed in consultation with a WCB medical advisor who offered the opinion that synovitis of the knees was “likely reflective of a degenerative condition which is multifactorial in nature.” The WCB therefore remained of the opinion that a causal relationship between the performance of the worker’s job duties and the development of traumatic synovitis had not been established.

On September 16, 2008, the worker had an MRI of his right knee. The findings revealed a large joint effusion, moderate degenerative change of the medial femoro-tibial compartment and a complex tear of the medial meniscus.

On September 25, 2008, the worker advisor asked Review Office to reconsider the adjudicative decision to deny the claim. On November 6, 2008, Review Office returned the case back to primary adjudication to review the results of the MRI examination and to investigate further whether the worker’s knee difficulties were related to an injury on April 1, 2008 or to his work duties in general.

On December 17, 2008, a representative from the body shop advised the WCB that the shop’s busy season was in April and June and that their workload was very dependent on the weather as well. She stated that the worker was not really considered a body man but did jobs such as rust and rebar repairs and if a bumper was bent, he would straighten it. There was no increase in the worker’s workload to speak of. He worked 8 hours a day and there was no increase in hours or overtime.

Primary adjudication spoke with the worker on December 30, 2008. The worker indicated that he was only having problems with his right knee. He said in April 2008, he was walking around a car and fell onto a tool that was on the ground. He never had any prior troubles with his knee. The worker indicated that the owner, the office administrator and the owner’s nephew all knew about his fall and his knee problems prior to June 6, 2008.

On December 30, 2008, the employer’s office administrator maintained that no one was aware of any incident prior to being told about it in June 2008. Co-workers who worked in the same area as the worker were asked if they saw or heard anything about what happened and none of them knew anything about it. The office administrator stated he could not confirm that the incident did not happen at work nor could he confirm that the incident did happen at work.

On January 9, 2009, primary adjudication determined that based on the worker’s delay in reporting or seeking medical attention for the injury to his right knee, it could not be established that an accident occurred as described by the worker.

On January 19, 2009, the worker advisor submitted to Review Office that the employer’s statements had not been entirely consistent and should not be afforded more weight than the worker’s own testimony. He noted that the MRI results of September 16, 2008 were consistent with the mechanism of injury reported by the worker. He noted that the medical reports on file also suggest the worker’s difficulties are further complicated by the likelihood of an underlying condition attributable to his work duties in general.

In its decision dated February 10, 2009, Review Office outlined rationale to support that the worker’s claim for compensation was not acceptable. It stated that it was unable to find that the worker suffered personal injury by accident arising out of and in the course of his employment because of the significant delays in seeking medical treatment for his right knee and reporting the injury to his employer. Further, the evidence did not establish that the work duties in general resulted in an injury to his knee. On a balance of probabilities, Review Office found that the worker’s degenerative joint disease and the degenerative complex tear of the medial meniscus were the result of non-work related pre-existing factors that were not aggravated or enhanced by the worker’s employment duties in general. On February 20, 2009 the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on April 28, 2009, the appeal panel requested additional medical information prior to discussing the case further. On May 22, 2009, the interested parties were provided with a copy of the medical information that the panel obtained and were asked to provide comment. On June 10, 2009, the panel met to discuss the case and considered a final submission by the worker advisor dated May 26, 2009.

Reasons

With respect to the alternative argument, the panel notes that swelling complained of by the worker is a symptom, not a condition. It is the pre-existing degenerative joint disease which causes the swelling. The fact that certain work activities may elicit symptoms does not mean that work caused the knee condition. Nor is there evidence that the pre-existing degenerative condition was aggravated or enhanced by the worker’s job duties. As noted by the WCB orthopaedic consultant: “No evidence is available that aggravation or enhancement of degenerative joint disease occurred as a result of work activities as opposed to the activities of daily living. A person with degenerative joint disease of the knees would be expected to avoid kneeling and squatting as much as possible because such activities increase symptoms.”

Based on the foregoing, the panel finds that the worker’s degenerative right knee condition and meniscal tear were not caused by his job duties, nor were they aggravated or enhanced by his work. The worker’s appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of July, 2009