The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appeals the decision made by the Workers Compensation Board ("WCB") that his right knee difficulties were not related to an accident at work. A hearing was held on February 25, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on July 19, 2012 for difficulties he was experiencing with his right knee that he attributed to his job duties as a laborer. The worker believed that his right knee injury was caused from "Weed whacking 8 hrs a day, always turning to the right."

At the time of making his claim, the worker reported that he first noticed right knee symptoms during the summer of 2011 and that he had since attended physiotherapy treatments and had an MRI. The worker reported that since June 2012, he had fluid built up in his knee and that surgery was recommended. The worker indicated that he had been at his current job since 2008 and that the date of injury was October 7, 2011.

On July 31, 2012, a WCB adjudicator contacted the worker's employer. The employer indicated that the worker submitted a green card on October 7, 2011 describing the mechanism of injury as "constant twisting on slope ground, hand brushing. Has been re-occurring after any extended period of this activity." The employer reported that the worker submitted a second green card dated December 12, 2011, describing the mechanism of injury as "recurring pain in right knee. Has been receiving physio for ACL damage."

The WCB medical advisor reviewed the medical information related to the worker's knee condition on August 12, 2012 and noted that the worker had a complex tear of his medial meniscus with degenerative changes of the medial femoral and tibial condyle. The medical advisor gave the opinion that a review of the worker's statement did not establish evidence of a work-related injury to account for the MRI findings and speculated that there may be many unrelated activities to account for the findings.

On August 13, 2012, the WCB determined that the WCB was unable to accept responsibility for his claim, as a relationship had not been shown to exist between his current knee symptoms and his work duties.

On June 27, 2013, the Worker Advisor Office appealed the above decision to Review Office on the worker's behalf.

On August 27, 2013, Review Office considered the Worker Advisor's appeal and concluded that the worker's claim for compensation was not acceptable, as a causal relationship between his right knee difficulties and the performance of his job duties had not been established.

On December 4, 2013, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The issue to determine is whether the worker’s claim is acceptable.

Applicable Legislation and Policy

In considering this appeal, the panel is 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.

Workers Compensation Board Policy 44.10.20.10, Pre-Existing Conditions, (the “Policy”) provides that:

(a) When a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker’s Position

The worker, represented by an advocate in the hearing, advanced the position that the worker’s right knee complaints are causally related to performance of his work duties as a labourer, and more specifically, to the worker’s duties in clearing brush from the side of roadways using a “weed whacker.”

The worker, through his advocate, provided both a written and oral submission in support of this position. In the written submission, the worker’s advocate states:

"…it is our position that the performance of this work either caused his meniscus tear or….that the physical requirements involved with clearing brush placed stress on [the worker’s] right knee beyond what he would otherwise experience outside of his employment, resulting in aggravation of a previously asymptomatic tear.”

In sum, the worker’s position is that the meniscal tearing in his right knee occurred out of and in the course of his employment.

Employer's Position

The employer took the position that the medical evidence available does not support a finding that the worker’s right knee complaints are related to a compensable injury that occurred arising out of or in the course of the worker’s performance of work. Rather, the employer submits that the medical evidence supports that the worker’s injury is the result of a pre-existing injury to his right knee or an unrelated injury or cause.

Analysis

Did the worker's employment duties cause an injury? In order to find that the claim is acceptable, the panel must find on a balance of probabilities that the worker’s injury is the result of an accident arising out of and in the course of employment. On the evidence before us, the panel was not able to make that finding.

In determining whether the worker’s injury was the result of an accident arising out of or in the course of his employment, the panel considered the submissions of both the worker and the employer with respect to the worker’s employment duties.

The worker described the mechanism of injury as being the result of repetitive twisting motion and weight bearing predominantly on his right leg in the course of using a “weed-whacker” on sloped and uneven ground while clearing roadside brush. In clarifying the worker’s description of the repetitive movements involved in “weed-whacking” the panel heard that the worker would shuffle along a roadside or ditch, shifting his weight from one foot to the other as he worked and twisting to the left and to the right, with a symmetrical motion.

The worker noted that he began doing this sort of work when he was hired in 2008 and that it accounted for approximately 60-75% of his work duties. He also noted that he first had symptoms of knee pain in 2010.

The worker’s position is that the performance of these job duties either caused the meniscal tearing in his right knee, or aggravated a pre-existing meniscal injury. However, the panel finds that his own description of those movements is inconsistent with the mechanism of injury claimed and does not support the medical diagnosis of a complex medial meniscal tear to only his right knee.

The medical reports on file establish that the worker reported he experienced recurring symptoms of pain in his right knee as early as October 2011 and that he received physiotherapy treatment for a MCL sprain and patellofemoral syndrome during the fall of 2011.

In January 2012, the worker was first diagnosed with a medial meniscal tear and referred for an MRI. The MRI of February 17, 2012 resulted in a diagnosis of:

1. Complex tear of the posterior horn of the medial meniscus

2. Posterior joint capsule ganglion

3. Mild degenerative changes of the femoral trochlea and medial and lateral femoral-tibial joint compartments.

Subsequently, the worker was referred to an orthopaedic surgeon who, on April 3, 2012 recommended arthroscopic surgery. The worker again consulted with the orthopaedic surgeon on June 8, 2012 and reported a recent incident, described in the medical report of that date as:

“…was crouching building a fence and felt something popped on the medial side of his right knee and now has much more pain and swelling. On exam, small effusion, medial joint line tenderness.”

Treatment by arthroscopic surgery was planned. When the surgery took place on August 7, 2012, it yielded a post-operative diagnosis of a complex tear in the posterior half of the right knee medial meniscus tear and Grade 3 chondromalacia of femoral trochlea.

The worker’s orthopaedic consultant gave the opinion in November 2013 that the work duties could have caused or enhanced the meniscal tear. He concluded that:

Although there was no specific injury with the activity involved in his work and how long he did it, I believe on the balance of probabilities, his work caused his injury. I can’t say with certainty it was related to the work however it likely was.

In contrast, based on a review of the information on file, the WCB Medical Advisor, on August 12, 2012, gave the opinion that there is no evidence of a work-related injury that would account for the MRI findings and speculated that there may be unrelated activities to account for those findings.

The panel has concerns with respect to the strength of the opinion expressed by the worker's orthopaedic consultant and the information upon which that opinion was based. The worker’s advocate advised that the opinion obtained was in answer to the question:

“Is it more likely than not that [the worker's] medial meniscus tear was caused by the performance of his work duties over time. If so, please clarify your opinion by providing a rationale.”

He noted that in seeking the opinion, he referenced the Review Office’s reasons for denial of the claim, and specifically the opinion of the medical advisor but did not provide the medical reports on file or the complete Review Office decision referencing those reports.

We note that the orthopaedic consultant’s opinion was not based upon a complete review of the medical and job duties information on file and was provided in answer only to a very narrow question. We have therefore given that opinion less weight in our deliberations and have given more weight to the opinion of the WCB medical advisor who had access to all the information on file. In the panel's view, this opinion is more consistent with the job duties and work history as identified in the file at the hearing.

We conclude that while performance of his work duties may have increased the worker’s experience of pain symptoms, the evidence does not support a finding, on a balance of probabilities, that those duties caused an aggravation of a pre-existing condition, or caused the condition itself.

The panel finds that the evidence on the whole does not support a finding, on a balance of probabilities, that the worker’s injury is the result of an accident arising out of and in the course of employment nor that his employment duties caused or contributed to the diagnosis.

We therefore find that the claim is not acceptable.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 17th day of April, 2014