Decision #20/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which denied his claim for compensation on the basis that he did not sustain an accident arising out of and in the course of his employment. A hearing was held on February 6, 2013 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On November 23, 2011, the worker filed a claim with the WCB for right knee pain which he attributed to walking up and down stairs on October 28, 2011 for a three to four hour period. The worker reported that he first noticed knee symptoms at home on October 29, 2011. It consisted of an occasional sharp pain on the inside of his knee. He experienced pain and soreness when moving or walking, crouching down or going up and down stairs. The worker said he delayed in seeking medical treatment as he thought the soreness in his knee would go away on its own. The worker said "unusual to do 3-4 hrs. of continuously going up and down stairs." He reported the knee injury to his acting supervisor on November 11, 2011.
On November 24, 2011, the employer submitted an Employer's Accident Report noting that the worker was climbing stairs and hurt his right knee on October 28, 2011. The worker did not report this to anyone at the time. The worker worked his regular shifts on October 29, November 2, 3, 4 and 5 and went off sick on November 11, 2011. The worker reported the October 28, 2011 injury on November 22, 2011.
The worker was seen for medical treatment on November 12, 2011 for right medial knee pain. On November 22, 2011, the treating physician diagnosed the worker with a possible right meniscal tear. The physician also noted that the worker had past issues with his right knee: "Prior scope @ 16 years old ? Baker's - motorcycle accident 14 yrs ago."
On December 19, 2012, the worker was advised by the WCB that no responsibility would be accepted for his claim as a relationship between the development of his knee issues and an accident "arising out of and in the course of" his employment had not been established. The decision was based on the worker's delay in reporting the injury to his employer and because the mechanism of injury was inconsistent with the diagnosis of a meniscal tear.
On January 3, 2012 the worker underwent a right knee MRI which described the following findings:
- Possible short segment non-displaced oblique tear of the posterior horn of the medial meniscus.
- Full thickness chondral loss of the patellar cartilage and trochlea as described and irregularity of the medial femoral condylar cartilage.
A WCB orthopaedic consultant reviewed the worker's claim on February 8, 2012 and opined that the current MRI findings were not related to the workplace injury of October 28, 2011.
The WCB received a report from the worker's treating physician dated February 9, 2012 related to the worker's right knee difficulties starting in February 1998. A report was also received from an orthopaedic specialist dated February 21, 2012. The specialist noted that the worker injured his knee while at work on October 28, 2011 predominantly going up and down stairs and crawling in a tight space. It was suspected that the worker's patellar chondromalacia noted on the January 3, 2012 MRI may cause a little bit of anterior knee pain from time to time but it was not the cause of this particular flare-up. He felt the meniscal tear was causing the worker's knee problem.
On February 29, 2012, the WCB orthopaedic consultant noted that the new medical reports showed a history of previous injury to the worker's right knee and that details of the previous surgery were unavailable. The consultant noted that medial joint line pain and tenderness were noted on clinical examination at the clinic and by the attending orthopaedic surgeon who opined that the symptoms were probably related to the medial meniscus. The WCB consultant noted that the MRI of January 3, 2012 demonstrated articular cartilage degeneration with full thickness articular cartilage loss of the patella-femoral joint compartment. The images were interpreted as also showing a possible short oblique tear of the posterior part of the medial meniscus. The consultant said the mechanism of workplace injury did not involve vigorous twisting of the flexed knee, but was reported to be repetitive stair climbing, which he did not think would be expected to cause a meniscus tear. He also commented that the articular cartilage loss of patella and trochlea was the result of many years of a degenerative process.
In a second decision dated February 24, 2012, the WCB advised the worker that the new medical reports did not provide any new information that would warrant a change to the previous decision dated December 19, 2011.
On March 22, 2012, the worker's union representative appealed the decision to deny responsibility for the worker's claim. The union representative stated, in part: "…[the worker's] work changed over the period when the accident took place. It was not one traumatic event but a change in the activities over the days indicated that resulted in the accident taking place. As indicated in the Worker Incident Report "unusual to do 3-4 hrs of continuously going up and down stairs." Despite [the worker] being in excellent condition, as required for continuing employment, this additional strain brought on the condition currently at issue. We refer to the letter from [treating orthopaedic surgeon] which states in part: "He injured his knee while at work as a [occupation] on October 28, 2011 predominantly going up and down stairs and crawling in a tight space." Clearly the doctor is confirming the mechanism of injury being work related. This is in keeping with all the information already on file. The reference in the WCB letter dated February 24, 2012 to "degenerative loss of articular cartilage" does not appear relevant to the determination of the work related nature of the event. WCB Policy 44.10.20.10 clearly outlines the relationship between the relevance of such extraneous additional factors in the overall determination of responsibility."
On May 3, 2012, Review Office referred the worker's file back to primary adjudication to consider the new information submitted by the worker's union representative dated March 22, 2012 and to provide a new decision as to whether the claim was acceptable.
On May 11, 2012, the worker submitted medical and physical fitness test records for consideration by the WCB.
On May 17, 2012, a WCB case manager spoke with the worker to obtain additional information regarding the job duties he performed between October 28, 2011 and November 4, 2011 as well as information related to his 1974 motor vehicle accident. The case manager also spoke with the worker's supervisor on September 20, 2012 to obtain his knowledge of the work events that occurred on October 28 and 29, 2011.
On June 8, 2012, the WCB obtained a copy of hospital chart notes related to the worker's past knee difficulties.
In a decision dated September 28, 2012, the worker was advised that the WCB was unable to establish that his knee issues were the result of his work activities and that the mechanism of injury provided was inconsistent with the diagnosis provided. On October 11, 2012, the union representative appealed the case manager's decision to Review Office.
On November 1, 2012, a WCB orthopaedic consultant stated:
"The file was reviewed with WCB Review Office. At issue is the question of what physical activities would be expected to aggravate osteoarthritis (OA) of the knee. Prolonged walking, ladder and stair climbing, kneeling and squatting, would be expected to cause increased knee pain during the activities and for some hours afterwards. Such activities would not be expected to increase the anatomical pathology of OA within the joint. After cessation of such activities, the condition would be expected to return to baseline."
On November 2, 2012, Review Office determined that the claim was not acceptable. Review Office indicated that there was differing information on file regarding the mechanism of injury and that it relied on the accident description provided by the worker in November 2011 (the mechanism of injury was prolonged walking and stair climbing), as this was the most proximate to the onset of his symptoms. Review Office was of the opinion that the evidence did not support the worker sustained an accident arising out of and in the course of his employment. The mechanism of injury did not involve anatomical movements which could lead to a meniscal tear or degenerative changes as described in the MRI. The claim was also not acceptable on the basis of an aggravation. On November 15, 2012, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, 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 WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s right knee injury arose out of and in the course of his employment.
Worker's Position
The worker was represented by a union representative who made a submission on the worker's behalf. The worker answered questions posed by the panel.
The worker's representative expressed concern that there is a perception that the claim was denied "largely as a result of not properly completing paperwork and seeking medical assistance at the time of the accident…" The representative submitted that the circumstances of the worker's work changed over the period when the accident took place. He said it was not one traumatic or catastrophic event but a change in the activities over the timeframe indicated that resulted in the accident. The changes were noted in the Worker Incident Report as "unusual to do 3-4 hrs of continuously doing up and down stairs." He submitted that "the fact is that there was repeat exposure to this type of physical stress and this resulted in the degree of damage and the need for restorative surgery."
The worker said that his symptoms first arose on October 28, 2011. He advised that his duties were different on this date. He participated in a tour of a new facility. The tour lasted approximately 4 hours of the worker's 10 hour shift. As part of the tour, the worker and his co-workers inspected the stairwells on each floor of the facility, noted the location of fire exits and considered possible exit routes through the facility. The worker advised that the building has four levels (floors) with the height between levels exceeding the height between levels in most buildings. He advised there were 5 stairwells and that he climbed and descended all the stair wells multiple times. He said that this was an unusual amount of climbing compared to his usual job duties.
The worker advised that he first noted symptoms in his right knee after the first hour into the tour. He said that he felt soreness across the front of the knee. He described the initial pain being in the 6 to 7 out of 10 range. He said near the end of the tour the ongoing pain was approximately 7 and would shoot up to 9.
The worker advised that he worked the next day (October 29) and that he was able to perform his full duties. He said he felt a sharpness through the knee. The worker had 4 days off and next worked on November 3 which he called a quiet day. He was able to perform his duties on this day but did not participate in any physical fitness training.
On November 4, he again participated in a tour of the new facility. This time he was in a more confined area and was required to crouch approximately 50% of his time and on occasion crawl on his hands and knees. He was in this area for approximately 1.5 hours. His knee was very sore on this day. The worker worked at his regular duties on November 5 and 6.
The worker said that he did not initially file a WCB claim or seek medical attention because he thought he could work through the pain and that the soreness would disappear. He did not tell his co-workers about his injury because the culture in the workplace does not support complaining about physical pain.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker’s right knee injury arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the knee injury was caused or aggravated by the worker’s job duties. The panel was not able to make this finding.
The panel, on a balance of probabilities, finds that the worker's injury did not arise out of or in the course of his employment and was not aggravated by his job duties.
The worker's representative submitted that the change in the worker's duties on October 28 and November 4 caused the worker's right knee injury. He referred to the orthopaedic surgeon's letter of February 24, 2012 which noted that the worker "…injured his knee while at work as a [occupation] on October 28, 2011 predominantly going up and down stairs and crawling in a tight space. "
The panel notes the worker's evidence at the hearing was that he did not crawl in a tight space on October 28. This occurred on November 4, 2011, several days after the worker's symptoms first emerged. The panel therefore places no weight on the orthopaedic surgeon's opinion regarding causation as his comments on the worker's duties and symptoms and timing are inconsistent with the information on the file and presented at the hearing.
According to the evidence at the hearing, the only unusual duties that the worker performed on October 28, 2011 were the climbing and descending stairs multiple times. It was on this day that the worker advised that he felt pain on the medial side of the knee. The panel notes that this was the primary pain location, which was later diagnosed to be in the medial meniscus. This suggests that the worker's activities on November 4, 2011, which included significant crouching in a confined space did not contribute to the worker's injury. In this regard, the worker's evidence was that the increased pain on November 4, 2011 was in the same anatomical locations that he had been experiencing prior to November 4, 2011. As such, the worker's activities of crawling or crouching on November 4, 2011 were not causative of the worker's right knee difficulties. The panel is not able to find that climbing and descending stairs on October 28, 2011 was sufficient to cause the worker's right knee injury which was diagnosed and confirmed as a meniscus tear.
In reaching this conclusion, the panel relies upon the opinion of the WCB orthopaedic consultant who advised, in a memo dated February 29, 2012 that:
- "The mechanism of workplace injury did not involve vigorous twisting of the flexed knee. Rather, it was reported that there was repetitive stair climbing which would not be expected to cause a meniscus tear.
- The articular cartilage loss of patella and trochlea is the result of many years degenerative process."
The panel also notes the worker's evidence that he was extremely fit, as this was a requirement of his job. He advised that he had to pass annual fitness tests and that his regular workouts included cardiovascular exercise with the use of an elliptical machine and exercise bike. The worker also said the tour was self paced.
The panel also considered whether the activities of October 28 and November 4, caused an aggravation of the worker's pre-existing osteoarthritic condition. On this issue the panel relies upon the opinion of the WCB orthopaedic consultant in a memo dated November 1, 2012. The orthopaedic consultant advised that:
"At issue is the question of what physical activities would be expected to aggravate osteoarthritis (OA) of the knee. Prolonged walking, ladder and stair climbing, kneeling and squatting, would be expected to cause increased knee pain during the activities and for some hours afterwards. Such activities would not be expected to increase the anatomical pathology of OA within the joint. After cessation of such activities, the condition would be expected to return to baseline".
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of February, 2013