The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's left knee condition was attributable to a work-related injury occurring on October 15, 2009. A hearing was held on July 5, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to benefits.

Decision

That the worker is entitled to benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB in February 2010, for a left knee injury that occurred at work on October 15, 2009. The worker advised that he slipped on wet mud and twisted his left knee while putting a 30 pound pump hose onto a trailer. The worker indicated that he did not seek medical treatment until approximately November 2009 as he thought his knee condition would get better on its own and with self treatment. The worker indicated that the incident was reported to his foreman on October 15, 2009.

Chart notes obtained from the treating physician showed that the worker underwent a complete medical examination on November 10, 2009. The physician reported that the worker had locking of the left knee consistent with a cartilage tear and a referral to a sports medicine clinic was arranged.

An x-ray report dated November 10, 2009 of both knees stated "locking left knee for 3 months." The results were reported as being normal.

In a December 14, 2009 letter to the treating physician, the sports medicine specialist reported that the worker appeared to have a medial meniscal tear and a resolving partial MCL tear. The worker was referred to physiotherapy and was prescribed medication.

On February 8, 2010, the worker attended a physiotherapist for an initial assessment. The report stated that the worker slipped and twisted his left knee while lifting a hose onto a trailer. The diagnosis was a left medial meniscus tear.

The worker advised a WCB adjudicator on February 17, 2010 that it took a long time to get an appointment with his family physician and then a long time for him to see the specialist. The worker indicated that he was pursuing WCB coverage for his physiotherapy treatments. The worker noted that he told his foreman off and on that he had trouble walking. He thought it would go away but it did not. The worker indicated that he worked his regular duties since the accident and compensated with his right leg.

The WCB adjudicator spoke with the foreman on February 17, 2010. He said the worker reported it that day and he could not recall the worker saying anything other than his injury being aggravated by the work. The worker did not specify what job duties were aggravating his knee. The supervisor indicated that the worker was an energetic worker and was always on the go. It did not stand out that he was having knee trouble.

The worker's claim for compensation was accepted and benefits were paid to the worker.

On April 6, 2010, the worker spoke with a WCB case manager and stated that he had had problems with his knee locking since 2008 when he hurt his knee at work. He had filled out a green card but never filed a claim. It subsided until a few months before seeing his treating physician. It would lock up once in a while prior to the date of accident but after the workplace injury, it was locking up every day. He had been going to physiotherapy but only on his days off. His knee stopped locking up on him since he started physiotherapy. The locking still happened occasionally and he had an MRI scheduled for May 31.

Chart notes from the treating physician (received at the WCB on May 3, 2010) dated April 26, 2010 indicated that the date of injury was October 15, 2009." He was putting a hose on a trailer and he slipped on some ice and jarred the left knee, since then he has had some locking of that left knee with medial joint line pain. In 2008 he had slipped on ice and hurt the knee and filled out a green card at work but did not miss any work time."

In a decision dated March 31, 2010 (mailed out on May 6, 2010), the WCB case manager rescinded the decision to accept the worker's claim as she was unable to establish that his left knee difficulties arose out of and in the course of his employment. The decision was based on the following factors:

• Information from the employer that the worker's job duties were aggravating his knee injury but they could not provide specific details;

• The November 10, 2009 report from the treating physician which did not include details regarding a workplace accident but noted a three month history of left knee locking; and

• The April 26, 2010 medical report provided an injury date of October 15, 2009 but there were no medical findings or documented left knee history provided between October 15, 2009 and April 26, 2010 to support that the worker's current left knee difficulties related to a compensable work injury.

An MRI report dated May 31, 2010 confirmed a medial meniscus tear of the left knee.

On June 3, 2010, the worker appealed the March 31, 2010 decision to Review Office. On June 7, 2010, Review Office determined that it was premature for it to consider the worker's appeal and the file was directed back to primary adjudication to gather additional information and revisit the decision of March 31, 2010.

In a report to the WCB case manager dated June 15, 2010, the treating physician reiterated the same information he outlined on April 26, 2010. He added that he had not treated the worker prior to November 10, 2009 for any knee condition.

Primary adjudication contacted the worker and his supervisor for additional information.

On September 21, 2010, a second WCB case manager determined that the worker's claim was acceptable in that he sustained an injury arising out of and in the course of his employment. The case manager referred to evidence on file to support that the worker immediately reported his left knee work-related injury to his foreman; there was no medical to support that he had any left knee difficulties prior to October 15, 2009; the worker reported a consistent accident history and the reported mechanism of injury was consistent with the diagnosis provided. On November 15, 2010, the employer's representative appealed this decision to Review Office. He stated in part:

We believe at some point subsequent to his November 10, 2009 appointment, [the worker] began to relate his knee problems to the incident of October 15, 2009. It would certainly appear that relating the knee problems to the compensable incident of October 15, 2009 was an afterthought on the part of [the worker]. Certainly, there is no compelling evidence that would establish a cause and effect relationship between the two.

On January 15, 2011, Review Office determined that the worker's claim was acceptable and that the worker was entitled to benefits. Review Office referred to evidence on file to support that the worker's torn meniscus was causally related to the October 15, 2009 accident. Review Office did not place significant weight on the information concerning the worker injuring his knee sometime prior to October 2009 and having problems with it locking as a result. The employer subsequently appealed Review Office's decision to the Appeal Commission and a hearing took place on July 5, 2011.

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.

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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The employer’s position:

The employer was represented by its compensation coordinator. It was submitted that the evidence on file did not establish the necessary nexus between the worker's left knee problem and the compensable incident of October 15, 2009. It was noted that although the accident occurred on October 15, the worker did not seek medical attention until November 10, 2009 and did not establish a WCB claim until December 23, 2009. When the worker did see a physician on November 10, the primary purpose of the appointment was for a complete physical examination, during which time the knee problems were mentioned. No accident history was provided and the medical report referenced locking of the left knee for three months in duration.

This would tend to imply that the knee problems predated the compensable incident by approximately two months. The employer questioned why, if the worker's knee was "locking up" every day after the compensable incident, no accident history was provided to his physician. With respect to later reports from treatment providers which do report a work-related cause, it was submitted that the provision of an accident history several months post-incident is not something which should be relied upon to establish cause/effect.

The employer did not question the fact that the worker reported his October 15, 2009 knee injury and for that reason, it was not appealing the acceptance of the claim. It was submitted, however, that there was no evidence that would delineate the nature of injury, if any, given the delay in seeking medical attention. It was also noted that the evidence of knee locking for three months in duration indicated that the compensable diagnosis of a meniscal tear predated the accident.

The worker’s position:

The worker was assisted by a union representative at the hearing. It was submitted that the WCB correctly found that the claim was acceptable and that the worker was entitled to benefits. It was noted that there was no record of a previous knee injury requiring medical treatment. The symptoms only started on October 15, 2009 as the worker could perform his regular duties without modification prior to that date. The injury was reported immediately to the employer and the foreman confirmed ongoing complaints from the date of the accident to the date of first medical treatment on November 10, 2009. Both the doctor and the physiotherapist confirmed a consistent accident history and the mechanics of the injury were consistent with the diagnosis. Finally, it was noted that following the accident, modified duties were provided to the worker as he could not perform some of his regularly performed duties. It was submitted that the fact that the worker remained in the workplace and tried to work through the injury without immediately seeking medical attention did not negate the fact that, on a balance of probabilities, a compensable injury happened to his left knee in the workplace on October 15, 2009.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits. In order for the employer’s appeal to be successful, the panel must find that worker did not suffer injury, and specifically, injury to his left knee, during the course of his employment on October 15, 2009. On a balance of probabilities, we are not able to make that finding.

It is the panel's opinion that, despite some gaps in reporting, there are sufficient indicators to satisfy us on a balance of probabilities that the worker suffered a left knee meniscal injury by slipping in mud while performing his job duties on October 15, 2009.

In coming to our conclusion, the panel relied on the following:

• The worker's evidence was that his knee swelled up immediately after the accident and remained swollen until near the end of December 2009;
• The worker's explanations that he felt that his knee condition would resolve on its own with self treatment and that he would just wait until his previously booked physical examination to speak to his doctor were reasonable in the circumstances;
• There is indication that the worker reported locking of the left knee prior to October 2009. The worker's evidence was that it would lock up once in a while, but it did not prevent him from performing his regular duties, which involved very physical work in lifting plywood and planks, climbing down into holes and running to the truck to get tools and equipment. When it did occasionally lock, he would walk it off or rub it until it released. After the workplace incident, the worker's evidence was that he had trouble with his knee every day, and he was no longer able to perform all of his physical tasks at work. He had to be very careful how he walked, especially when there was mud. He basically stayed above ground and limited himself to getting things set up and directing the backhoe. The panel accepts that the worker may have had a pre-existing undiagnosed left knee meniscal tear, but we find that after the workplace accident, there was a distinct change in the worker's functionality which would lead us to accept that he suffered an enhancement of a pre-existing condition;
• The history of injury given by the worker to his medical practitioners was consistent with the report of injury given by the worker to the WCB;
• The mechanism of injury of twisting a bent knee while weight bearing is consistent with the compensable diagnosis of an oblique medial meniscal tear.

The employer emphasized the fact that there was no mention of a work-related accident in the general practitioner's notes of November 10, 2009. While the panel agrees that it would have been expected that the physician would make note of a work-related injury on that date, this inconsistency is not sufficient to convince us to set aside the evidence supporting that the left knee injury occurred on October 15, 2009. At the worker's appointment with the specialist on December 14, 2009, he did report that he injured his knee at work, and this was long before any primary decision was made to disallow the worker's claim for benefits.

The panel therefore finds on a balance of probabilities that the worker suffered a left meniscal knee injury while working for the employer on October 15, 2009, for which he is entitled to benefits.

The employer’s appeal is therefore dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of September, 2011