Decision #78/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his left knee difficulties were not causally related to his work related accident of August 19, 2009. A hearing was held on April 18, 2011 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker's left knee difficulties.Decision
That responsibility should not be accepted for the worker's left knee difficulties.Decision: Unanimous
Background
The employer's accident report dated August 27, 2009 reported that the worker injured his shoulder and back on August 19, 2009 when he fell from a ladder. The accident was reported to the employer by the worker on August 20, 2009.
On January 18, 2010, the worker spoke with a WCB adjudicator regarding his claim. The worker said he was on a step ladder in August and it was raining. The step ladder fell over and he fell on top of the ladder. His shoulder and neck struck the ladder and his knee hit the other part of the ladder. His knee did not bother him until sometime in September 2009 and he sought medical attention. The worker noted that he did not report the injury to his employer on the day of incident as he did not have knee pain at the time and he was on probation so he did not want to anger his employer.
On March 8, 2010, the WCB adjudicator contacted a witness who saw the worker's fall. The witness indicated that the worker was near the bottom of the ladder when it sunk in the muddy grass and fell over. The worker did a roll on the grass. The mud was soft. He did not see the worker hit or twist his knee and was not aware of shoulder or neck injuries. The worker did not complain to him about his knee problems as a result of falling from the ladder.
The worker was seen by a physiotherapist on September 17, 2009. The worker said he fell at work and landed on a ladder. He complained of pain with kneeling, squatting and stairs. The diagnosis rendered by the physiotherapist was "MCL/meniscus injury (tear?)."
When seen for medical treatment on December 9, 2009, the treating physician reported that the worker's left knee tended to give way with loose ligaments laterally. The worker was given a prescription for a knee brace and was referred to an orthopaedic surgeon.
On January 26, 2010, the treating orthopaedic surgeon reported that the worker was seen on January 13, 2010 and January 20, 2010. Clinically, the worker had evidence of a probable tear of the medial meniscus of his knee. In a further report dated February 24, 2010, the orthopaedic surgeon reported that the worker had an MRI on February 2, 2010 and it demonstrated a complex tear of the medial meniscus complicated by a superiorly displaced fragment. He also had chondromalacia of the medial femorotibial joint.
On March 8, 2010, primary adjudication advised the worker that based on his delay in reporting the left knee injury to his employer and the delay in seeking medical treatment, it was unable to establish that his left knee injury occurred at work.
On March 14, 2010, the treating physician wrote to the WCB on behalf of the worker. The physician outlined his opinion that the worker's meniscal tear was a work related injury.
After considering the March 14, 2010 medical report, primary adjudication advised the worker on March 23, 2010, that no change would be made to the March 8, 2010 decision. Primary adjudication upheld its position that due to the worker's delay in reporting his left knee to his employer and his delay in seeking medical treatment, it was unable to establish that his left knee injury occurred at work.
On May 4, 2010, a worker advisor appealed the above decision to Review Office. The worker advisor noted that the time frames for the notice of the accident to the employer, for filing the WCB claim and seeking physiotherapy for the left knee was made in less than 30 days and was within the time frames of the Act. She noted that file information dated January 18, 2010 showed that the worker did not make ongoing complaints to his employer because he was on probation due to missed time and he did not want to anger his employer. The worker advisor submitted that on a balance of probabilities, the worker did injure his left knee during the workplace accident of August 19, 2009 and that the complex meniscal tear of the knee was consistent with the mechanism of injury.
In a letter dated May 20, 2010, primary adjudication clarified to the worker that his claim was accepted for an accident sustained to his shoulder and back on August 19, 2009 but that no responsibility would be accepted for his left knee difficulties.
On July 21, 2010, Review Office determined that no responsibility should be accepted for the worker's left knee difficulties. Review Office noted that on August 20, 2009, the worker told his employer that he had only injured his shoulder and back. The worker stated that he had no left knee pain at the time of the accident. As the worker did not make any ongoing complaints of left knee difficulties and did not seek medical treatment for his knee until September 17, 2009, it found there was no evidence to support a continuity of signs or symptoms from August 19, 2009 to September 17, 2009. Review Office noted that the worker should have experienced some swelling and/or pain within 24 to 48 hours of sustaining the left knee injury according to medical literature. Review Office concluded that the file evidence of not reporting the knee injury to the employer and the delay in seeking medical treatment did not support a causal relationship between the compensable injury of August 19, 2009 and the diagnosis of a left medial meniscus tear. On August 19, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on April 18, 2011.
Following the hearing, the panel met to discuss the case and requested additional information from the worker's treating orthopaedic surgeon, the attending physiotherapist and a hospital facility. The requested information was later received and was forwarded to the interested parties for comment. On May 25, 2011, the panel met further to discuss the case and rendered its final decision.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
This case deals with a request by the worker for benefits for his left knee. For benefits to be paid, it must first be determined that the worker's left knee injury resulted from an accident as defined in the Act. The worker already has an accepted claim for injury to his back and shoulder arising from the accident to which he attributes his knee injury.
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.
Worker's Position
The worker was represented by a worker advisor who asked the worker questions and made a presentation on his behalf. The worker also answered questions posed by the panel.
The worker advised that he is a painter. He said that he was on a ladder for about 10 minutes painting the peak on a building. Prior to climbing the ladder, he sank the ladder to make sure it was stable. He advised that he was standing on the fifth step on a six foot step ladder. He said that it had rained just prior to the work day and that there was quite a bit of rain so the ground was soft. While he was standing on the ladder, one leg sank into the ground causing the ladder to fall. He landed on top of the ladder hitting his ribs and shoulder. He could not recall with certainty where his leg and knees landed. The worker said he completed a form the next day and believes he did not miss any work.
The worker said after the accident he was stiff and had aches and pains everywhere. He said his knee gradually got sore from climbing up and down ladders and walking. He started to get "the odd, like click or pop in the knee."
When asked whether he knew the knee injury was from the accident the worker responded "No, I wasn't sure why. When I went to, that's why I went to the physiotherapist."
Regarding the delay in filing a claim the worker said "Because at that point I knew I was going for surgery. I just wanted to be covered for my time to be off…all I wanted to do was to be covered for my recovery time."
He was attending a physiotherapist and mentioned his knee to the physiotherapist who was treating his shoulder injury. He then saw his family physician and was referred to a specialist. Ultimately he had surgery and has returned to work. He said his knee is not as strong as before the injury but that it's "actually pretty good."
He said he did not have any knee problems before the accident.
The worker advisor referred to the treating physician's opinion that the mechanism of injury would have been related to severe trauma such as falling off the ladder at work. She also noted that the worker suffered injury to the upper left side of his body and that the injury to his left knee is consistent with this.
Regarding the delay in reporting the knee injury, the worker advisor stated that "…it's not uncommon that when people do have a major accident like that, that there are a number of injuries and it can be hard to really distinguish all the possible physical injuries right away." She said this is consistent with the description of a meniscal tear that is usually a gradual process.
The worker advisor submitted that the fall from the ladder on August 19, 2009, on a balance of probabilities, is the accident that is more than likely responsible for the injury to the left knee.
Employer's Position
The employer was represented by a Human Resource consultant. The employer representative advised that the employer is denying that this knee claim arose from a work accident. She advised that the employer did not receive a report regarding the left knee injury. She noted that the employer received a report about a shoulder and back injury but no reference was made to a left knee injury.
The employer representative noted that the worker now reported having swelling within 24 to 48 hours of the accident happening. She said this would suggest a serious injury and he should have reported it at that time. She noted that he did not seek medical attention until 29 days after the accident date.
She noted that the worker's evidence that he had a previous claim and therefore did not want to make another claim because he was on probation. She noted, however, that he did make a claim for the shoulder and back injury.
She stated that the employer does not have confidence that the accident occurred at work.
Analysis
For the worker's appeal to be successful, the panel must find that the worker injured his left knee in a work related accident. We were not able to make this finding.
The panel therefore concludes that responsibility should not be accepted for the worker's left knee difficulties, as we are unable to find, on a balance of probabilities, that the worker injured his knee at work on August 19, 2009.
We find the evidence does not support a causal relationship between the compensable injury of August 19, 2009 and the worker's knee injury. We found the worker's general and specific recollection of events surrounding the injury and the onset of symptoms to be unconvincing and we attach little weight to this evidence. We prefer and place more weight on evidence contemporaneous to the alleged date of injury. In reaching this decision the panel notes:
- The worker's account of the injury differs from the account provided by the worker's co-worker. The worker said he was on the 5th step (second from top) of the six foot ladder, while the co-worker said he was standing near the bottom of the ladder. The description by the co-worker (of the worker rolling off to the side and rolling on the ground) does not suggest a fall that would result in a knee injury. This is quite different from the worker's description at the hearing of a fall directly onto the ladder itself from a high height. The co-worker also reports that the worker did not complain about a knee injury. The panel places more weight on the co-worker's description.
- The worker filed a claim for a shoulder and back injury resulting from the accident but did not report a knee injury. The panel notes that the worker did not seek medical attention for the knee injury until approximately 29 days after the accident. This delayed action is not consistent with a serious injury to the knee on August 19, 2009.
- The worker did not report the knee injury to the WCB until December 2009. The worker explained that he did not report because he was on probation in his job and did not want to file a claim. However, the panel notes that the worker filed two other claims, including the claim for shoulder and back injury on August 19, 2009, and again finds this explanation inconsistent with his other actions.
- The worker's family physician opines, "I believe that the most likely mechanism of injury would have been related to severe trauma such as falling off the ladder at work." Based upon the evidence before us, and on findings in respect of the mechanism of injury, we are not able to conclude that the accident was a severe trauma of the type that would result in this injury as surmised by the worker's family physician.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of June, 2011