The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The issue before the panel concerns whether the difficulties the worker is now experiencing in her left knee are related to the right knee injury. WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries 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.

Worker’s Position:

The worker participated in the hearing via teleconference. Her evidence was that on the date of the accident, when she got close to the car, she started slipping and sliding. She ran into the side of the car with her knees and legs. Then her right foot slipped. She fell on it and felt immediate pain in both knees and legs. However, at that point in time, she was very concerned about the right knee, as this was the one she fell on. The worker claimed that her left knee started to bother her right after she fell, but she thought that was because she favoured her right knee which put more strain on her left. The worker indicated that she felt very strongly that she tore the meniscus on her left knee at the same time as her right knee because the pain was certainly just as bad in both knees when she fell. Then, after her surgery, she placed even greater reliance on her left leg, such that even more strain was placed on the left knee. The worker noted that her arthritis was identified by the WCB as the cause of her problems, but she questioned why her arthritis did not bother her until she had the accident. Overall, the worker felt that her left knee condition was a work related problem and that the WCB should accept responsibility for this injury she sustained on the job.

Employer’s Position:

An employer advocate was present at the hearing, and the employer’s position was that the worker’s left knee problems were not due to the right knee workplace injury. Rather, the medical evidence indicated that the left knee condition was degenerative in nature. It was noted that the medical reports early in the claim contained no mention of any left knee issues, and left knee problems were not noted for quite some time post-accident. It was submitted that the medical evidence indicated that the worker had extensive degenerative conditions in her left knee compartment and that the ligament tear found there was degenerative in nature. As such, this would eliminate both the trauma of the February 12, 2008 work accident and any overcompensation issues as potential causes of her left knee condition.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the left knee difficulties are predominantly attributable to the compensable right knee injury. On a balance of probabilities, we are unable to reach that conclusion.

In the panel’s opinion, the horizontal cleavage tear of the medial meniscus and osteoarthritis in the worker’s left knee are degenerative changes related to the natural course of aging, and the workplace injury of February 12, 2008 did not cause or contribute to these left knee difficulties. In coming to this conclusion, the panel relied on the following:

• The tear identified in the April 17, 2009 MRI is described as a “horizontal cleavage tear.” The panel accepts the opinion of the WCB orthopaedic consultant that this type of meniscal tear is usually of a degenerative etiology;
• At the hearing, the worker described her job duties as a home care attendant. Her evidence was that after the February 12, 2008 accident, she did return to work but did not work outside of her restrictions. Her temporary restrictions were to avoid squatting or deep knee bends, to avoid twisting upon the bent right knee, and to avoid repetitive stair climbing. Given these restrictions, it is the panel’s opinion that the worker was not engaged in any onerous activity which would cause her left knee difficulties to develop. She spoke about shifting most of her weight to her left side while performing standing tasks, but the panel does not find medical evidence supporting that this alone would cause a meniscal tear or osteoarthritis to develop or become aggravated;
• At the hearing, the worker’s evidence was that her left knee symptoms had been present since the date of the accident and from the outset they were comparable to the right knee injury in terms of severity. She admitted that she made a mistake in initially not reporting the left knee difficulties and stated that she reported her right knee because that was the one which hit the ground. The worker even suggested that the left meniscal tear occurred when she slipped on February 12, 2008;
• The panel notes that complaints of bilateral knee issues only started to appear in the medical reports in approximately December 2008 or January 2009. The worker’s explanation for not reporting the left knee symptoms earlier was that she thought the left knee difficulties were due to overcompensation related to the right knee injury;
• Given the delay of 10 months in reporting the problems with her left knee, the panel finds it difficult to accept that the worker’s left knee symptoms were initially as severe as alleged by her. There were multiple opportunities for the worker to mention her left sided problems to either her WCB adjudicator, chiropractor, attending physician, orthopedic surgeon or her physiotherapist, but she did not do so. This leads the panel to conclude that the worker’s symptoms on the left side were not as significant as she claims they were during the period from February to December, 2008. It is more likely that the symptoms developed later after the accident, as part of the natural aging process.

For the foregoing reasons, we find that the worker’s left knee difficulties are not a sequelae of the right knee injury and responsibility should not be accepted by the WCB. The worker’s appeal is dismissed.