Decision #29/10 - Type: Workers Compensation

Preamble

With the assistance of the Worker Advisor Office, the worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his right knee bursitis did not arise out of and in the course of his employment as a certified mechanic. A hearing was held on March 23, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In March 2009, the worker filed a claim with the WCB for a right knee injury that he related to “repetitive kneeling” while employed as a mechanic. The worker indicated that he first noticed knee symptoms about 10 years ago and that the pain came on periodically. From September 2008 to March 2009, the intensity and frequency of the pain varied. Around the second week in March 2009, his knee started to swell. The worker indicated that the amount of time he spent on his knees at work varied each day. Some days he could be on his knees for most of the day and other times very little. He estimated that he spent approximately 2.5 hours every day working on his knees. He said that he wore knee pads some days and not on others, depending on the type of job he was doing and the amount of time it took to do the job.

The employer’s injury report indicated that no specific injury was reported by the worker. The worker indicated that his right knee was swollen and sore and that he had prepatellar bursitis. The worker was employed as a mechanic for more than 27 years and there was no mention of him wearing knee pads.

On March 24, 2009, a WCB adjudicator spoke with the worker by telephone and the following information was obtained:

· The worker was a government-certified trailer mechanic.

· From September 2008 to January 2009, he removed aluminum flooring inside trailers and replaced them with wooden flooring. He wore kneepads consistently while doing the floor replacement. He was working with a helper.

· The worker wore knee pads when he knew that he would be on his knees all day. The knee pads were uncomfortable as the straps bit into the back of his legs. His employer never said anything about knee pads but they provided eyeglasses, welding gloves, face shields and coveralls.

· During the last six months, the worker mentioned his knee pain to his employer.

· Other job duties included crawling underneath the trailers, suspension modification, welding, changing cross members, floor replacement, building stands and tables for the shop, brake jobs once in a while, and building hitches.

On April 3, 2009, a WCB adjudicator spoke with the employer who confirmed the job duties performed by the worker.

On April 7, 2009, the worker’s supervisor advised the WCB that the worker had mentioned that he had issues with his knees and that he thought he had arthritis.

Medical information received from the attending physician showed that the worker was examined on March 9, 2009 for pain and swelling in his right knee. The diagnosis rendered was right knee bursitis.

On March 19, 2009, the worker underwent a Doppler ultrasound of the right lower extremity. The clinical history outlined was: “DVT (deep vein thrombosis) left leg June 2008. Acute knee swelling of right leg. Rule out DVT.” The results of the ultrasound were read as follows:

“There is evidence of deep vein thrombosis involving the right femoral vein (with a small non-occlusive thrombus present within the lower femoral vein).”

On April 5, 2009, a WCB medical advisor reviewed the file at the request of primary adjudication. He noted that the worker began to experience right leg swelling that was not in relation to any specific injury. He said the subsequent diagnosis of right leg DVT could account for the worker’s swelling that had been ascribed to bursitis. He indicated that the worker had a prior pulmonary embolism and a prior left leg DVT both of which would increase the chance of a subsequent clotting event.

On May 12, 2009, the WCB medical advisor reviewed hospital records that were obtained by primary adjudication. The medical advisor concluded that the diagnosis to account for the worker’s leg pain and swelling was deep venous thrombosis. He indicated that a prior history of pulmonary embolism would increase the risk of subsequent clotting events.

On May 19, 2009, the worker was advised that his claim for compensation was not accepted, as a relationship had not been established between his knee condition and his work activities. The adjudicator indicated that on a balance of probabilities, it was more likely that “the pre-existing presence of a DVT in the right knee caused the swelling to the area, than the immobility resulting from the diagnosis of bursitis caused a blood clot.”

On June 12, 2009, the worker appealed the above decision to Review Office. Included with the submission was a medical report from the treating physician dated June 7, 2009. The physician outlined the view that the worker’s right knee bursitis and the development of the DVT were independent events. He agreed that the development of DVT was not work-related but believed that the bursitis was. He stated, “The repeated compression over the kneecap due to kneeling on concrete at work resulted in the development of bursitis.”

Review Office referred the case back to primary adjudication to consider the new medical information. On August 12, 2009, the adjudicator confirmed the previous decision that a relationship between the worker’s knee condition and his work activity had not been established. The claim was then referred back to Review Office for consideration.

A submission was received from the employer’s advocate dated October 5, 2009. In the advocate’s opinion, the medical evidence of the WCB medical advisor dated May 12, 2009 precluded acceptance of the worker’s claim.

At the request of Review Office, a WCB orthopaedic consultant reviewed the file on October 7, 2009. He stated:

“1. The physical findings reported by [the treating physician] on 17 Mar 2009 and 27 March 2009 are rather scant, but a diagnosis was reported of “bursitis right knee”. It is not clear if this was pre-patellar bursitis which is the most common site for bursitis at the knee.

2. Pre-patellar bursitis is a diagnosis associated with repetitive kneeling and reaching forwards.

3. I agree that there is no relationship between the DVT of the right lower limb and the CI [compensable injury] of bursitis of the right knee. Bursitis does not cause limitation of walking and standing and is not considered to be an aggravating factor for pre-existing DVT.”

In a decision dated October 8, 2009, Review Office was unable to find that the worker sustained a personal injury by an accident arising out of and in the course of his employment. Review Office noted the worker’s evidence that he knelt on both knees at work yet his bursitis condition was specifically related to his right knee. Review Office outlined the opinion that the worker’s job duties required him to kneel during part of his working day and did not consider that it was sustained kneeling.

On December 31, 2009, a worker advisor requested Review Office to reconsider its decision based on additional medical evidence from the treating physician dated December 23, 2009. In his report, the treating physician stated the following:

“…I first saw [the worker] regarding his right knee on March 9, 2009. At that time he reported that he had developed swelling of his knee on March 8, 2009. He denied any history of trauma. On examination there was a prepatellar swelling noted which was slightly tender with no evidence of redness. He was sent for an x-ray which confirmed the diagnosis of prepatellar bursitis. He was advised to stop work, elevate his right leg, use ibuprofen as directed and apply ice.

At that time, [the worker] had no evidence of a deep vein thrombosis (DVT). With the presence of a DVT, symptoms could include swelling, tenderness, and redness involving the calf area. In severe cases these signs could extend up the leg but the calf area would be involved. [The worker] had no signs or symptoms involving the calf area. His swelling was localized anteriorly above and on the patella.

I next saw [the worker] on March 11, 2009. There was no change in his swelling and he could still not bend it and it was too uncomfortable to kneel down. His treatment was unchanged.

During a follow-up visit on March 16, 2009, [the worker] reported new swelling involving his right calf. This was confirmed on examination and an urgent ultrasound on the area was performed on March 17, 2009. This revealed the presence of a DVT involving the right femoral vein. This was a new diagnosis which was independent of the prepatellar bursitis.

…[the worker] spent approximately 25-30% of his 10-hour workday on his knees. He reported that he always wore kneepads…I believe that while the kneepads would reduce the likelihood of developing pre-patellar bursitis, it would not completely eliminate the risk. There is nothing in [the worker’s] history to suggest any other reason that [the worker] developed the bursitis. He reported no trauma or kneeling at home. I would be at a loss to explain how [the worker] could have developed the bursitis otherwise. Furthermore, this repetitive kneeling would not necessarily cause bilateral pre-patellar bursitis involving both knees to occur at exactly the same time.

The pre-patellar bursitis involving [the worker’s] right knee prevented him from kneeling. The swelling was severe enough that he could not fully flex his knee. The pressure of kneeling also caused pain if he put his weight on the area of swelling.”

The worker advisor submitted that the worker’s claim was acceptable as he was diagnosed with a condition that was more than likely the result of the kneeling required by his employment duties.

On January 21, 2010, Review Office determined that no change would be made to its decision of October 8, 2009. Review Office felt that the medical documentation included in the worker advisor’s submission did not support that the worker’s right knee bursitis arose out of and in the course of his employment. Review Office acknowledged that the worker wore knee pads while performing tasks that required him to kneel during the course of his workday. Although it was difficult to conclude that the knee pads would eliminate the stress to the worker’s knees entirely, it was of the opinion that the knee pads would reduce the stress to the worker’s knees such that his work duties involving kneeling tasks would not be the cause of his right knee prepatellar bursitis. On a balance of probabilities, Review Office was unable to establish that the worker’s right prepatellar bursitis arose out of and in the course of his employment. On February 11, 2010, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

In considering any appeal, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

The worker’s position:

The worker was assisted at the hearing by a worker advisor. His position is that the right knee bursitis condition and DVT condition in his lower right leg are completely unrelated; the bursitis condition arose at least a week before the DVT condition was first noticed, was in a different part of the leg, and has different symptoms associated with it than the DVT condition. The worker points to the medical reports of his attending physician which clearly outline the different symptoms and the different dates of the presentation of the two conditions, as supportive of his position.

The worker advisor also led the worker through a detailed review of his job duties as a trailer mechanic, and in particular those job duties involving kneeling and crawling. The worker’s position is that his job duties involve considerable periods of time kneeling and crawling; this is particularly so when he replaces trailer floors, but is also part of his regular maintenance duties, when he checks for air pressure or works under trailers. The worker maintains that the regular contact with concrete floors on the day of his injury on March 9, 2009 was sufficient to trigger the development of right knee pre-patellar bursitis. The worker’s evidence is that he worked for many years without using knee pads, and at the time of his injury, would only put on the knee pads when he anticipated a job on his knees lasting more than two hours. On the day in question, the worker was not wearing knee pads.

Analysis:

For the panel to accept the worker’s claim, the panel would have to find that the worker injured himself on the job, on a balance of probabilities. In particular, within the facts of this case, the panel would have to find that the worker’s right knee pre-patellar bursitis was causally related to his job duties as a trailer mechanic. The panel was able to make this finding, for the reasons that follow.

At the outset, the panel notes that there were two medical conditions in play in the file that confounded early adjudication of the claim, namely, the right knee bursitis and the right leg DVT conditions. In the early stages, the file was unclear on the specifics of each of the conditions: the type of bursitis, its symptoms and when it arose; and the DVT condition, its symptoms and when it arose. The panel notes that the worker’s attending physician carefully outlined the chronology of two examinations of the worker in early March 2009. The first visit was on March 9, 2009. At that time, the doctor specifically noted swelling in the front of the worker’s patella. At the hearing, the worker explained that he was fine at the beginning of his work day that day, and that the swelling occurred about 11 a.m., five hours into his work shift. It was on the front of the patella and the swelling extended upwards just above the knee into the front of his right thigh. It was extremely painful to the touch. The doctor indicates that he specifically diagnosed pre-patellar bursitis, based on his examination findings on that day.

The doctor notes that on a second visit by the worker on March 16, 2009, a week later, he also noted a generalized swelling around the worker’s right calf. The worker’s evidence is that this was first noticed in the doctor’s office while his knee was being examined. It was not painful, and was a circumferential swelling of the right calf, stopping a couple inches below his right kneecap. The doctor ordered tests which later confirmed a DVT (which the worker describes as being a blood clot). It was the opinion of the worker’s doctor, as well as the WCB medical advisor that the two conditions are unrelated to each other.

Based on this information, the panel finds that the worker’s diagnosis on March 9, 2009, the dated of the alleged workplace accident, was right knee pre-patellar bursitis. The findings in the medical and narrative reports by the worker’s attending physician do not point to the presence of DVT (a non-compensable condition) on March 9, 2009. In this regard, the panel notes that that worker’s attending physician was fully aware of the worker’s prior DVT history, and was clear in his last narrative report in his descriptions of the different symptoms noted during his various examinations, and how and why he was attributing the symptoms to two discrete and different medical conditions. In the panel’s view, the attending physician’s letter does not contradict earlier opinions offered by the WCB medical advisors who reviewed the file; rather, they refer to “scant” findings in the early medical reports filed by the attending physician as well as uncertainties as to the type of bursitis to which the attending physician had been referring.

The question then turns to whether there is a causal relationship between the worker’s right knee prepatellar bursitis condition and the worker’s job duties. The panel notes that this condition is normally caused by extensive kneeling, and up-and-down movement. This general etiology is confirmed by the WCB orthopaedic consultant who noted on October 7, 2009 that “pre-patellar bursitis is a diagnosis associated with repetitive kneeling and reaching forwards.”

The panel therefore carefully examined the worker’s job history and job duties, to determine whether those risk factors for the development of the condition were in fact present at the workplace and in the worker’s performance of his job duties. The panel notes the following:

  • The worker had been employed as a trailer mechanic with the employer. At the time of the hearing, he was approaching 29 years of service.

  • The worker’s job duties involved extensive kneeling. One of the worker’s ongoing responsibilities involved the complete replacement of aluminum floors in 53 foot trailers. The worker was required to kneel and crawl forward five times down the length of the trailer, cutting the corrugated aluminum flooring with a circular saw in long lines, then to make several cuts along the width of the floor, before prying out the old flooring materials. Each trailer would require a full day to rip out the old flooring. The worker advised that he did this job for many years without kneepads. As time progressed, he noticed his knees becoming sorer at the point where his knees contacted the ground, and he started to wear kneepads. These were foam pads without a hard covering, and he could still feel the ridges (one inch wide and one inch deep) of the corrugated aluminum through the pads as he kneeled and crawled quickly up the trailer to make his cuts.

  • The worker’s general duties as a trailer mechanic (maintaining and repairing a variety of trailers) also required the worker to spend time on his knees on the concrete floor in his workplace. The worker’s evidence was that the unique nature of the problems presented by each trailer were such that he could not predict when he would be on his knees, and in fact he was unable to be specific as to what particular duties he had been doing on the morning of March 9, 2009, when his knee swelled suddenly, five hours into his shift. He indicated that checking tire pressures would require him to kneel, as would a variety of different repairs or welding jobs. Depending on the location of the problems, he could be kneeling, laying on a crawler, or sitting on a short stool.

  • Regarding the use of kneepads, the worker indicated that his practice (up to the time of his injury) was to wear the kneepads only when he anticipated a kneeling job that would last more than two hours. This would include jobs such as the floor replacements. Otherwise, he would not put the kneepads on. There was some preplanning required with the use of the kneepads, as he would usually wear them under his work pants. The worker’s evidence is that in early March, after his return from vacation, he was not assigned to any jobs requiring two or more hours of kneeling. He did not use his kneepads the morning of his injury and had not done so at all, since he returned from his February holidays.

  • The panel found the worker to be forthright and credible in his presentation of his evidence, particularly in his description of the varied tasks that he had, the amount of kneeling, and his general practices regarding when he did and did not use his kneepads. The panel notes that the employer’s submission agreed with the nature of the job duties as described by the worker, and in particular, the amount of kneeling and crawling involved in the worker’s job duties.

  • The worker’s knee difficulties had been developing over an extended period of time, and were particularly noticeable after he completed jobs where he was on his knees. He eventually started to use knee pads, but not the hard shell kneepads he is currently using. However, he did not use those kneepads on a consistent basis, and only used them when he anticipated his kneeling or crawling to exceed two hours. As such, the worker, prior to March 2009, was only partially mitigating potential damage to his knees by the use of knee pads. The panel notes that in any event, the kneepads were not fully protective; the worker advised that he could still feel the hard ridges of the corrugated aluminum floor through the kneepads during the extended periods he was kneeling and crawling on the trailer floors.

  • Although the worker was unable to recall a specific incident on March 9, 2009 that caused the worker’s right knee to swell up, the panel does accept the common position taken by the worker and the employer that many of his job duties would involve him kneeling indoors on a concrete floor. It is also clear from the file evidence that the worker’s right knee swelled suddenly, approximately five hours into his work shift, which is strongly suggestive of a work-related cause.

Based on this analysis, the panel finds a causal relationship between the worker’s job duties as a trailer mechanic and the onset of the worker’s right knee prepatellar bursitis condition. The panel therefore finds, on a balance of probabilities, that the worker suffered an accident, as defined under the Act, and that the worker’s claim should be accepted.

The worker’s appeal on this issue is successful.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of April, 2010

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