The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's ongoing right knee problems were unrelated to his March 3, 2009 work related accident. A hearing was held on April 14, 2011 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's right knee problems for which he first sought medical attention on July 2, 2009.

Decision

That responsibility should not be accepted for the worker's right knee problems for which he first sought medical attention on July 2, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB on June 29, 2009 for a right knee injury that occurred on March 3, 2009. The worker reported that he was walking through the shop and went to step over an air line. He thought he had his leg up high enough but his foot caught on the air line and he fell to the ground with both hands out and his right knee buckled. The worker advised the WCB that he did not report the accident right away as everything seemed to be fine. He then began to notice pain behind his right knee cap about three weeks ago. He did not miss any time from work as a result of the accident.

In a statement dated June 29, 2009, a witness who saw the worker fall on March 3, 2009 stated: "…When he went down, his knee cap was the first to take the impact then he landed on his palm of his hands…My opinion at that time was…he hit the concrete with tremendous force, that is why I remember this incident so well."

In a July 2, 2009 report to the worker's family physician, an orthopaedic surgeon reported that the worker had been having pain in the medial compartment of his right knee joint with a feeling of instability. The worker had a history suggestive of locking of the knee joint. The surgeon described his examination findings related to the right knee. He noted that x-rays of both knees showed mostly medial compartment degenerative arthrosis. There were also degenerative changes of the patellofemoral compartment but they were not very severe. An MRI scan was requested and the need for a uniconodylar knee replacement was considered.

The employer's report dated July 3, 2009 indicated that the worker stepped on an air line with his left foot while walking and he went down on both hands. His right knee buckled. The worker experienced cuts/scrapes and sprain to his right knee. The worker incurred time loss on July 2, 2009 for two doctor appointments.

On July 10, 2009, the worker was advised in writing that the WCB accepted that a work related incident occurred on March 3, 2009 however it was unable to accept responsibility for any ongoing medical expenses after that date. It was primary adjudication's decision that because the worker was able to continue working his regular duties without complaint and no medical treatment was sought until July 2, 2009, it could not establish a relationship between his current difficulties and the March 3, 2009 incident.

On July 29, 2009, the worker underwent an MRI examination of both knees. In regard to the right knee, the report read: "Severe degenerative changes involving the medial femorotibial joint and medial patellar cartilage. Degenerative medial meniscus with a horizontal tear in the posterior horn remnant." In regard to the left knee, the report read: "Severe medial femorotibial osteoarthritis with a degenerative medial meniscus and a degenerative tear at its posterior horn."

The worker underwent surgery to his right knee on November 20, 2009. The postoperative diagnosis was a torn posterior horn and body, medial meniscus with degenerative arthrosis, medial femoral and tibial condyles and patella.

In a report dated January 14, 2010, the family physician outlined his examination findings of the worker's right knee for treatment between 1982 and December 2009.

At the request of primary adjudication, a WCB orthopaedic consultant reviewed the worker's file on January 28, 2010. He indicated that the mechanism of injury suggested a contusion of the right knee. He felt that the features of the medial meniscus described at surgery could be consistent with either traumatic or degenerative tearing of the meniscus. On a balance of probabilities, he felt that the worker's meniscal tear was not related to the compensable injury but was related to degeneration.

In a second decision dated February 18, 2010, primary adjudication advised the worker that the decision to accept that a work-related incident occurred on March 3, 2009 was being upheld and that the request for surgery to the right knee and any time loss and treatment that may be associated with the performance of this surgery had been disallowed. Primary adjudication relied on the opinion expressed by the WCB orthopaedic consultant on January 28, 2010.

On April 13, 2010, the worker's union representative requested that the WCB reconsider its recent decision. The union representative advanced the position that there was a history of non-problematic pre-existing changes within the worker's knee and that findings at surgery supported that an acute traumatic type injury occurred. It was felt that the worker's claim should be accepted on the basis that an enhancement occurred with the March 3, 2009 workplace injury.

In a submission to Review Office dated May 31, 2010, the employer's representative outlined the position that there was no evidence that the worker's pre-existing condition had ever been aggravated at work, let alone enhanced. It was felt that there was no correlation between the November 20, 2009 surgical intervention and the minor incident of March 3, 2009.

On June 10, 2010, the union representative provided Review Office with a rebuttal submission. It was the union's position that the worker sustained a workplace injury March 3, 2009 and that the associated difficulties never attained resolution until post surgical intervention.

On June 10, 2010, Review Office determined that no responsibility could be accepted for the worker's right knee problem for which he first sought medical treatment on July 2, 2009. Review Office indicated that the information provided by the worker on June 29, 2009 when he initially filed his claim was probably the most accurate in terms of the chronological history of his symptoms after the incident on March 3, 2009. Review Office indicated that based on all the available evidence, it was unable to establish a causal relationship between the worker's right knee complaints for which he first sought medical treatment and eventually underwent surgery on November 20, 2009 to the incident at work on March 3, 2009. On July 6, 2010, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on April 14, 2011.

Following the hearing, the appeal panel requested additional information from the worker's family physician and the treating orthopaedic surgeon. The requested information was later received and was forwarded to the interested parties for comment. On July 5, 2011, the panel met further to discuss the case and rendered its final decision.

Reasons

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

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. The key issue to be determined by the panel deals with causation and whether the worker’s right knee problems are attributable to an accident arising out of and in the course of his employment.

The worker’s position:

The worker was assisted by a union representative in his appeal. It was submitted that the workplace injury of March 3, 2009 caused an enhancement of the worker's pre-existing right knee condition, which necessitated surgery for resolution. The workplace fall was witnessed by co-workers and involved a trip and stumble forward. The worker awkwardly planted his right foot, causing his right knee to buckle and give away. His right knee then bent and dropped with his full weight transferring down onto his knee as it hit the ground.

The representative acknowledged that the worker handled his claim poorly, both in terms of timely reporting to the employer and delay in seeking medical attention. It was submitted, however, that the worker's position as supervisor allowed him to modify his activities at work which enabled him to continue with his regular duties. By being careful with his movements at work, the worker believed that he would see improvement in his right knee over time. As spring approached, the worker realized he had not enjoyed the speedy recovery he had with past similar knee injuries. It was at this point that he approached his doctor on July 2, 2009 to discuss his ongoing knee difficulties. It was noted that although the worker definitely had considerable pre-existing degenerative changes, these changes were absolutely asymptomatic prior to the event of March 3, 2009. It was submitted that objective medical findings outlined in the medical reports supported that there were specific traumatic changes which necessitated the right knee arthroscopic surgery, and that responsibility for time loss and medical care related to this surgery ought to be accepted.

The employer’s position:

A representative from the employer was present at the hearing. The employer's position was that the weight of the evidence, on a balance of probabilities, failed to establish any relationship between medical treatment commencing July 2, 2009 and the compensable incident of March 3, 2009. The employer acknowledged that while it was understandable that the worker, in the absence of any other trauma, may conclude that his right knee problems were attributable to the incident of March 3, 2009, this would not take into account the severe degeneration in both knees as noted in the MRI of July 29, 2009. The medical file indicated that the worker had degenerative changes in his knee which preceded the workplace accident. It was submitted that there was a distinct disconnect between the incident of March 3, 2009 and the onset of knee pain sometime during the first week in June 2009. The panel was called upon to deny the worker's appeal.

Analysis:

The issue before us is whether or not responsibility should be accepted for the worker's right knee problems for which he first sought medical attention on July 2, 2009. In order for the appeal to be successful, the panel must find that the worker suffered injury to his right knee as a result of a fall which occurred during the course of his employment on March 3, 2009. On a balance of probabilities, we are not able to make that finding.

The difficulty in this case is that there is an almost four month gap in time between the workplace fall on March 3, 2009 and the reporting of the injury to the WCB on June 29, 2009. At the hearing, the explanation given by the worker was that his right knee condition was not improving, and he felt that something was not right. This is what led him to see his doctor, who then referred him to another doctor (presumably the orthopaedic specialist).

After considering the evidence as a whole, the panel is of the opinion, on a balance of probabilities, that the worker’s right knee problems for which he first sought medical attention on July 2, 2009 are more likely attributable to non-work related causes (pre-existing degenerative changes) than to acute trauma suffered on March 3, 2009. In coming to this conclusion, the panel relied on the following:

In view of the foregoing, the panel is inclined to accept and adopt the medical opinion of the WCB medical advisor that the compensable injury was limited to a contusion of the right knee and that the condition of the menisci of the worker's right knee was degenerative and not related to the compensable injury. As a result, the panel finds that responsibility should not be accepted for the worker's right knee problems for which he first sought medical attention on July 2, 2009. The worker’s appeal is therefore denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of August, 2011