Decision #86/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a left knee injury that she attributed to her work duties as a baker’s helper. The claim for compensation was denied by primary adjudication and Review Office as both were unable to confirm that the worker suffered a work related injury to her left knee. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on July 21, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On September 17, 2008, the worker filed a claim with the WCB for an injury to her left knee cap which she stated occurred sometime in May or June 2008. The worker described the accident as follows:
“I was putting the dolly underneath the stack of bread, tilted the dolly back with the stack of bread and turned and twisted my left knee cap. As I was bringing the stack of bread up to where it goes I bypassed my boss and she asked me why I was limping and I told her I just twisted my knee cap.”
The worker indicated that she continued working following the accident but kept twisting her knee. She used ice and Advil to relieve the pain.
On September 18, 2008, the worker advised a WCB adjudicator that she twisted her knee in either May or June 2008 but did not miss any time from work. The worker indicated that she was off work due to issues between her and her employer. The worker indicated that the bakery manager saw her limping and that she told the bakery manager that she twisted her knee while using a dolly. The worker said she described to a co-worker how she twisted her knee. The worker indicated that she sustained no new accidents at home and that she kept twisting her knee every time she used a dolly.
On September 18, 2008, the adjudicator contacted the bakery manager. The bakery manager said she never noticed the worker limping nor did she ask the worker why she was limping. The co-worker identified by the worker was also contacted. She indicated that the first time the worker mentioned that her knee was sore was about three weeks ago.
Initial medical information showed that the worker first sought medical attention for her knee on September 2, 2008.
In a decision dated September 24, 2008, the WCB adjudicator determined that the worker’s claim for compensation was not acceptable as the file information did not establish a work related accident occurred. The adjudicator noted that no one at work was aware of the worker’s left knee injury. She stated that the co-worker only recently became aware that the worker was having left knee difficulties but she was not sure what they were related to.
On October 17, 2008, the worker appealed the above decision to Review Office. The worker noted that she injured her left knee on May 29, 2008. She stated that she had a pending Human Rights claim against her employer. The worker advised that she had a doctor’s appointment on July 11, 2008 and that she was told to ice her knee. The worker stated that she did not seek medical attention between May 29, 2008 to July 10, 2008 because she thought it was a muscular problem.
On October 27, 2008, Review Office determined that the worker’s claim for compensation was not acceptable as there was a lack of evidence to support that there was an accident as required under the WCB’s legislation. Review Office outlined in its decision that the employer denied being aware that the worker suffered an injury to her knee or that they were aware of the worker limping. There were no co-workers who were able to confirm that the worker sustained an injury to her knee. Review Office noted that it contacted the doctor’s office where the worker was seen on July 11, 2008 and the chart did not indicate that a work related event was the cause of her knee problems.
On March 24, 2009, a worker advisor asked Review Office to reconsider its decision of October 27, 2008 based on medical information from an orthopaedic specialist dated January 21, 2009 and MRI results dated December 5, 2008. The worker advisor contended that the radial tear noted in the December 5, 2008 MRI supported the mechanism of injury described by the worker when she turned and twisted her knee while manipulating a dolly. There was also a new letter from a witness, but that letter was subsequently withdrawn from consideration at the request of the witness.
On April 15, 2009, Review Office confirmed its previous decision that the worker’s claim for compensation was not acceptable. The Review Officer noted that she discussed the worker’s file with a WCB orthopaedic consultant. The consultant opined that if there was a radial tear associated with a twisting type incident, the worker would have experienced immediate symptoms and an immediate stoppage of work. As the worker continued to work and perform her regular duties and did not seek medical attention for six weeks, this did not support that the worker injured her knee on May 29, 2008. On April 22, 2009 the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (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.
The key issue to be determined by the panel deals with causation and whether the worker’s personal injury was caused by an accident arising out of and in the course of employment.
The worker’s position:
The worker was assisted by a worker advisor in her appeal. It was submitted that the worker was involved in an event arising out of and in the course of her employment where she experienced the onset of left knee symptoms. She continued to work and her left knee symptoms became increasingly worse which prompted her to seek medical attention July 11, 2008 and September 2, 2008. A report from the treating orthopedic surgeon referred to the MRI from December 5, 2008 which showed small joint effusion, medial tibial/femoral chondromalacia and some fraying and truncating of the medial meniscus with a suspected medial meniscal tear. The worker relied on the surgeon’s opinion which stated that although there may be some associated degenerative changes in the worker’s knee, there was a pretty clear work-related component. It was submitted that on a balance of probabilities, the worker’s claim met the requirements of the Act and should be accepted.
Analysis:
The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered injury to her left knee in the course of her employment on May 29, 2008 as a bakery clerk. On a balance of probabilities, we are able to make that finding.
In coming to this conclusion, the panel relies on the following:
- At the hearing, the worker listed job duties which included transferring stacks of bread trays using a dolly. She described placing the edge of the dolly underneath the tall stacks of bread (which were sometimes higher than her head), then tipping the stack back to load it onto the dolly. Once the stack was loaded, she would lean back and turn the dolly. It was while she was doing this maneuver that she twisted her knee. Correspondence from a co-worker provides some corroboration of this version of the facts. The panel finds that the mechanism of injury described by the worker is consistent with a meniscal tear to the knee;
- The description of the onset of pain which was given by the worker at the hearing is also consistent with a meniscal tear to the knee. She described feeling an immediate burning sensation to the right inner aspect of her left knee, and a lot of pressure, which developed into a lot of swelling and pain;
- The worker stated that she did not seek medical attention because she believed that her knee injury was muscle related and so she just took Robaxin, Advil and iced her knee;
- On July 11, 2008, the worker went to a family physician who simply told her to continue what she with doing with applying ice and taking Advil. Although a WCB report was not filed by the physician, the panel notes that the physician’s notes reference “work at bakery”. A doctor’s first report from an examination by a different physician on September 2, 2008 described: “twisted knee at work”;
- The worker continued to work until September 24, 2008. By this date, she had already sought treatment for left knee pain from two physicians and had been referred for an MRI;
- Although the employer, and in particular, the worker’s supervisor, denied knowledge of the injury or limping, the panel found it difficult to place much weight on these statements given the difficult relationship between the worker and the employer.
Based on the foregoing, the panel is of the view that there is sufficient evidence to satisfy us on a balance of probabilities that the worker’s left knee meniscal tear was suffered while she was performing her job duties. The worker’s appeal is therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of September, 2009