The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current left knee complaints and left knee surgery were not related to her compensable accident of June 4, 2008. A hearing was held on September 18, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's left knee surgery in relation to the compensable injury of June 4, 2008.

Decision

That responsibility should not be accepted for the worker's left knee surgery in relation to the compensable injury of June 4, 2008.

Decision: Unanimous

Background

On June 9, 2008, the worker filed a claim with the WCB for work-related injuries that occurred on June 4, 2008. The worker described the accident as follows to the WCB's call centre:

I slipped on the floor, and I fell against the cupboard on the left of me. I have injuries to my left knee, neck, arm, back, left hip, chin and waist. I continued to work regular duties until the end of my shift about 5 to 10 minutes.

The worker noted that she had a non-compensable left knee condition related to a previous fall and that she had undergone knee surgery for a torn cartilage.

Initial medical reports showed that the worker sought treatment from her family physician, a chiropractor and physiotherapy. The claim was accepted based on the diagnoses of a left knee contusion, left hip strain and a cervical strain. By October 4, 2008 the worker was cleared to return to work.

On March 29, 2012, the worker advised the WCB that she was scheduled for left knee surgery and asked whether the surgery would be covered by the WCB.

The worker has prior claims with the WCB (2006, 2008 and 2009) involving her knees.

On March 29, 2012, the worker provided the WCB with details related to her left knee symptoms subsequent to the October 4, 2008 accident. The WCB adjudicator also spoke with the worker's supervisor as well as several co-workers regarding their knowledge of the worker's left knee difficulties.

At the WCB's request, medical records were obtained from the treating orthopaedic surgeon related to the worker's left knee condition.

On December 21, 2011, x-rays were taken which showed mild narrowing involving the medial compartment of the left knee. No acute bony abnormality was identified. On December 30, 2011, an MRI of the left knee showed the following findings:

1. Tricompartmental osteoarthritis most prominent in the medial compartment.

2. Degenerative tearing of the body and posterior horn of the medial meniscus.

3. 1.2 cm intraarticular body within the patellofemoral compartment.

In a January 17, 2012 report, the orthopaedic surgeon stated that the worker "has an MRI confirmed well established degenerative changes in the left knee including a medial meniscal tear and there is suspicion of a loose body on MRI but she does not have mechanical symptoms, just medial pain…there is a suspicion of loose bodies on her MRI but does not have mechanical or locking symptoms so we discussed risks and benefits of arthroscopy."

On April 27, 2012, the treating orthopaedic surgeon stated that the worker did not discuss specific work-related injuries or WCB matters but arrangements were made for a knee arthroscopy.

On May 26, 2012, a WCB orthopaedic consultant reviewed the file information and stated;

The current findings on the imaging studies show degenerative tear of medial meniscus in an environment of tri compartment degenerative osteoarthritis of the knee being more severe in the medial compartment. These findings support complaints based on the degenerative findings demonstrated on the MRI.

By letter dated June 4, 2012, the worker was advised that the WCB was unable to find that her left knee complaints and related surgery were due to her June 4, 2008 left knee injury based on the WCB medical opinion outlined on May 26, 2012.

On June 26, 2012, the family physician supported that the worker's left knee complaints were related to her June compensable accident. He stated:

It is my opinion that [the worker] is suffering from the interpositioning of her loose body into the mechanical positioning of the knee, resulting in off-loading, and falling to the ground. The loose body is understood to be a result of injury, the injury being the one suffered June 4, 2008, covered by WCB. [The worker] has yet to be fully evaluated by an arthroscopy prior to final determination of degree of injury and compensable status."

On January 20, 2013, the worker appealed the June 4, 2012 adjudicative decision to Review Office.

On February 20, 2013, Review Office determined that no responsibility should be accepted for the worker's left knee surgery. Review Office considered all the file evidence which included the MRI results, the information from the family physician and from the worker's co-workers. Review Office accepted that the worker likely incurred a strain/sprain injury to her left knee in June 2008 and that the evidence did not support that these diagnoses caused any aggravation or enhancement of the worker's osteoarthritis or the medial meniscus. It was unable to find a relationship between the reported left knee difficulties in 2012 and the workplace accident from 2008. It was felt that the degenerative changes identified on the MRI could cause the worker's difficulties. On June 28, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The worker has an accepted claim for a workplace injury. She is asking the Appeal Commission to find that the WCB is responsible for her surgery on her left knee which she relates to her 2008 workplace injury. 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.

Worker's Position

The worker attended the hearing and represented herself. She explained her reasons for appealing and answered questions asked by the panel.

The worker noted that she had knee problems when she was a teenager. In 1999 she had arthroscopic surgery which involved a meniscus repair. Prior to the 2008 injury, the worker said she could do whatever she wanted and was not restricted.

She said that on June 4, 2008 while working as a cook, she slipped on grease on the floor and fell against a steel table. She said that she injured her left knee, neck, arm, back, left hip, chin and waist. She described her left knee symptoms as bruising, burning pain and pain with each step. She said she first sought treatment from a chiropractor who eventually referred her to a therapy clinic. She returned to work in October 2008.

In December 2008, the worker said that she slipped on water at work. This injury caused pain when walking. She used painkillers and continued to work.

In 2011 she stopped working due to knee pain. She had an MRI in December 2011 and ultimately had surgery on September 4, 2012.

Regarding the cause of her knee pain, the worker said that "I actually believe that my knee pain has resulted from a combination of all of the falls and June 4th was the first one, but the others just made it worse."

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether responsibility should be accepted for the worker's left knee surgery in relation to the compensable injury of June 4, 2008. For the worker's appeal to be successful, the panel must find that the surgery is related to the worker's 2008 left knee injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's left knee surgery is not related to her compensable 2008 injury.

To assist with its deliberations, the panel obtained a copy of the operative report for the 2012 surgery. The panel reviewed the report for findings that the worker had sustained a traumatic injury which might have caused the worker's condition or either aggravated or enhanced her condition. The report does not indicate that this is the case.

In making this decision the panel relies upon the following information:

• the worker was off work for several months as a result of the 2008 injury, but returned to her regular duties in October 2008 and continued to work until 2011. The injury was initially diagnosed as a contusion and later accepted as a strain/sprain injury. These diagnoses and the worker's return to work do not support a finding that her 2008 injury was the cause of her problems in 2011 or that it aggravated or enhanced her pre-existing condition resulting in the need for surgery in 2012.

• the December 30, 2011 MRI noted osteoarthritis in all knee compartments, loss of cartilage and degenerative tearing in the knee.

• the operative report from the September 4, 2012 surgery shows that the worker had significant chondromalacia and degenerative tearing throughout the knee. The preoperative diagnosis and post operative diagnosis indicate that the worker had degenerative arthritis in her left knee.

At the hearing, the worker submitted that her condition and resulting surgery are due to a "combination of all of the falls and June 4th was the first one, but the others just made it worse." The panel notes that the issue of a cumulative injury resulting from multiple workplace accidents is not before it and is not addressed in this decision.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of November, 2013