Decision #99/10 - Type: Workers Compensation
Preamble
Through the Worker Advisor Office, the worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his current left knee complaints were no longer related to his compensable accident of May 15, 2009.
A hearing was held on July 21, 2010 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after June 5, 2009.Decision
That the worker is entitled to wage loss and medical aid benefits after June 5, 2009.Decision: Unanimous
Background
On May 15, 2009, the worker reported that he injured his left knee and hip based on the following accident description:
“I was unloading groceries from my vehicle it was part of my duties, and the groceries were in a box and as I was pulling out the box from the back seat the box broke, and as I tried to collect the groceries before they fell I slipped on wet and icy stairs. I tried to close the box with my arms and stop the items from falling resulting in a fall and I landed on my left knee. I had pulled my personal vehicle right up to the stairs.”
The worker reported that he called to set up a medical appointment on May 25, 2009 as he did not think much of it and thought it would not be a problem but his condition worsened.
The employer’s accident report stated that the worker slipped and fell on his knee while unloading groceries from his truck on May 15, 2009.
When speaking with a WCB adjudicator on May 26, 2009, the worker stated that he also injured his left low back in the accident. The worker noted that the truck was parked along side of the stairs when he was unloading the vehicle. The worker did not recall telling anyone at work about any difficulties as he worked in a secluded area where he did not see a lot of people.
When seen for treatment on May 26, 2009, the worker advised the chiropractor that he fell on stairs landing onto his left knee and jammed his left low back. The diagnosis rendered was left sacroiliac strain and a contused left knee cap with sub patellar bursitis.
On May 28, 2009, the WCB accepted the worker’s claim for an accident but did not accept responsibility for any resulting time loss or medical treatment. The adjudicator indicated that the worker continued to perform his regular duties with no report of any difficulties and he delayed in seeking medical treatment until May 26, 2009. Based on these findings, it was felt that a relationship between the development of his left knee/hip difficulties and an accident “arising out of and in the course of” his employment had not been established. On June 4, 2009, the worker appealed the decision to Review Office.
On June 18, 2009, Review Office determined that the worker was entitled to wage loss and medical aid benefits in regards to his left knee injury. As to the worker’s low back complaints, Review Office instructed primary adjudication to obtain a missing doctor’s report for an examination on May 27, 2009 and then to decide on whether or not responsibility should be accepted for the worker’s low back complaints.
A report received from the treating physician showed that the worker attended for treatment on May 27, 2009 and provided an accident description notation of “tripped down the stairs”. Subjective complaints were left hip pain and buckling of the left knee. The diagnosis was a contusion and possible strained ligament.
On July 29, 2009, the worker was paid time loss benefits from May 26 to June 5, 2009 for his left knee injury.
In a July 30, 2009 decision, the worker was advised that the WCB was unable to accept responsibility for his left hip/low back condition as he continued to perform his regular duties with no report of difficulties and his delay in seeking medical treatment until May 26, 2009.
When speaking with an adjudicator on July 30, 2009, the worker stated that he returned to his full time regular duties from June 6 to July 1 with difficulties, as he was out of sick time and the WCB had denied his claim. He had been off work since July 7, 2009 and was seeing a chiropractor for his back injury and was taking medication. He was also off work for his knee injury. He did not feel comfortable discussing his medical condition with his supervisor or co-workers and did not talk to anyone at work about his injury. He said his knee would be fine and then it would buckle. He had no other accident at home or at work and was scheduled for an MRI in October. His current symptoms were intermittent buckling and pain descending stairs, pain when crossing legs at the inside of knee and right lower outside of the knee.
On August 5, 2009, the worker was advised that the WCB was unable to establish that his current left knee difficulties were related to the injury of May 15, 2009 based on the following findings: he returned to his regular work duties on June 6, 2009 with no continued reports of difficulties to his supervisor or co-workers; he did not seek medical treatment between June 5, 2009 and July 7, 2009 and he did not have a new accident. On August 29, 2009, the worker appealed the decision to Review Office contending that he was entitled to wage replacement and medical aid for the period July 7 to August 17 in regard to his left knee and low back injury.
On September 21, 2009, Review Office returned the claim back to primary adjudication to gather specific information and to render a decision concerning the worker’s knee and hip complaints.
On September 28, 2009, the worker spoke with a short term claims supervisor and described the accident as follows:
“…was pulling a box out from the back seat…the box started to fall apart and he moved quickly to stop the groceries from falling all over the back seat…it was raining out and his foot slipped on the steel edge of the step or platform. His left foot slipped. He fell forward and hit his left knee on the step. His right leg was bent and his right foot remained on the ground for the most part….his upper back also went forward however he did not fall into the vehicle…he believes that he fell forward directly. His left leg did not go out to the side…his left hip was also injured by way of the impact of his left knee hitting the ground…his lower back was injured as a result of falling forward.”
An MRI of the left knee was taken on September 10, 2009. The results showed chondromalacia of the medial femoral condyle.
A WCB medical advisor reviewed the file information on October 30, 2009. In his opinion, the diagnosis affecting the left hip would be a strain type injury and the diagnosis affecting the left knee was a contusion. The medical advisor provided rationale to support that the two diagnoses would be related to the workplace injury, but on a balance of probabilities, they had resolved by this point in time.
On November 5, 2009, the WCB determined that the worker’s claim for a left hip injury was compensable up until June 5, 2009 and that his ongoing left knee/left hip would remain unacceptable after the date he returned to work on June 6, 2009. This decision was based on the following findings: the worker did not seek medical treatment between June 6, 2009 to June 30, 2009 and he performed his regular duties with no report of difficulties. Based on these findings, the adjudicator could not establish that the worker’s left knee and hip difficulties were related to his May 15, 2009 work injury. On November 12, 2009, the worker appealed the decision to Review Office.
On November 19, 2009, Review Office determined that the worker was not entitled to wage loss and medical aid benefits after June 5, 2009. Review Office placed weight on the opinion expressed by the WCB medical advisor dated October 30, 2009 in making its finding that the worker’s left knee and hip complaints after June 5, 2009 were unrelated to the workplace accident of May 15, 2009. On January 6, 2010, the Worker Advisor Office appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel met to discuss the case and requested additional information from the attending physician. The information from the physician was later obtained and a copy was forwarded to the interested parties for comment. On September 15, 2010, the panel met again to discuss the case and to consider the final submission from the Worker Advisor Office.
Reasons
Applicable Legislation
The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).
Section 37 of the Act provides that where a worker sustains a loss of earning capacity, wage loss compensation is payable. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
The Worker’s Position
The worker was represented at the hearing by a worker advisor. The submission made on behalf of the worker was that although he returned to work on June 5, 2009, he did so because he felt pressure to get back. He was concerned that if he missed too much time from work, it may cause him to lose his posting in a "slow rotation", which was a position he preferred. When he returned in June, he was still having problems with his knee. He had the most difficulty when climbing and descending stairs, and when squatting. The worker's job required him to be on his feet approximately 25 percent of the time. When he was walking, there were a significant number of stairs which he would have to negotiate. The worker estimated that in the vertical units, he would have to travel up and down 200 stairs in each unit, and his area included four vertical units. In addition to that, he would have to walk through one unit which was flat. After he completed his rounds through the units, his knee would swell and he frequently experienced buckling of the knee.
As the condition of his left knee was not improving, the worker returned to his doctor on July 7, 2009. He had been attending a chiropractor, applying ice to reduce the swelling, and performing strengthening exercises, but his knee was still causing him problems. His doctor recommended that he remain off work to allow the knee to rest and to give it time to heal on its own. In the worker's opinion, between the date of the accident on May 15, 2009 and the date when he went off work on July 7, 2009, there had been no changes in the type of symptoms he had been having in his left knee.
The panel notes that in this appeal, the worker is only seeking benefits for the period July 7, 2009 to August 18, 2009. There has not been any time loss from work since August 18, 2009 that the worker attributes to his compensable injury. At the hearing, the worker gave evidence regarding the current condition of his left knee and he indicated that he has returned to the sports medicine physician who oversaw treatment to his left knee in 1998. The worker stated that the sports medicine physician describes the worker's current left knee condition as a post traumatic patellar injury. The physician recommended physiotherapy and laser therapy. Cortisone injections may be tried in the future if the condition persists. At present, the worker is awaiting a referral to the orthopedic surgeon who performed the previous arthroscopic surgeries. The question of whether the worker's current condition is related to the May 15, 2009 compensable injury has not previously been considered by the WCB, and as the worker is not seeking compensation benefits relating to the current condition of his knee, the panel notes that its deliberations in this decision are limited to the July/August 2009 time period.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after June 5, 2009. As noted earlier, this decision is limited to entitlement to compensation benefits for the period July 7, 2009 to August 18, 2009. In order for the appeal to be successful, the panel must find that during that period, the worker had not recovered from the effects of the injuries he sustained in the May 15, 2009 workplace accident. We are able to make that finding.
In order for compensation benefits to be authorized, there must be evidence of disability or loss of earning capacity. The panel is satisfied that in the present case, the following evidence establishes that the worker was disabled from performing his regular duties during the period July 7, 2009 to August 18, 2009:
- The attending physician's first report from his examination of May 27, 2009 reported a diagnosis of contusion and strained ligament of the left knee. The panel accepts this as the compensable diagnosis resulting from the workplace accident.
- By report dated June 6, 2009, the worker's attending physician reported continued pain and buckling of the left knee. He indicated that the worker was capable of a return to work as of June 6, 2009, but indicated: "No stairs."
- The worker did in fact return to the workplace, but the restriction of "no stairs" was not observed. The worker's evidence was that upon his return to work, he had to walk up and down stairs for about 25% of his day. The panel accepts that the worker's ongoing regular job duties, and in particular, the requirement to walk up and down stairs, would hinder the worker's recovery.
- By report dated July 7, 2009, the attending physician recommended that the worker remain off work entirely. Although the described objective findings of "weakness and decreased range of motion of the left knee" are somewhat brief, the panel is prepared to accept the attending physician's authorization as sufficient evidence of disability so as to entitle the worker to benefits.
- In the absence of accommodation discussions with the employer, the panel is of the view that the decision to remove the worker from the workplace was reasonable.
- The panel accepts the October 30, 2009 opinion of the WCB medical advisor that by that date, the left knee contusion had resolved.
In view of the foregoing, the panel finds that the worker is entitled to wage loss and medical aid benefits after June 5, 2009. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 28th day of October, 2010