The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his bilateral knee condition was not related to a workplace accident. A file review was held on October 20, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 12, 2014, the worker filed a claim with the WCB for injury to both knees which he related to his work activities which involved the following activities: lifting items that could weigh one hundred pounds or more, walking and standing for prolonged periods, climbing ladders and stairs, crouching, kneeling, bending and twisting. The worker reported that his knee problems began 3 or 4 years ago prior to his retirement and that they gradually became worse. The worker reported that his supervisor was aware of his knee difficulties. The date of accident was noted September 1, 2011.

The Employer's Accident Report indicated that the worker did not report an incident and no green card was received. The employer indicated that the worker was off work during the time frame indicated and that records showed that the worker's termination date was September 9, 2011.

Further information submitted by the employer was that the worker terminated his employment on September 10, 2011, advising that he was taking an early retirement. At that time he was alleging knee problems. The employer did not have any knowledge of a work-related knee injury as was outlined in their Employer's Accident Report.

On March 31, 2014, the worker advised a WCB adjudicator that his current difficulties were the result of him performing similar job duties over the course of 30 years. The worker denied a specific incident but did state that he began to notice problems with pain and stiffness in late 2009 and early 2010. The worker felt that his current difficulties were no doubt related to his employment as he has not worked anywhere else in his life and his employment was tough on his knees. The worker indicated that his supervisor knew he had difficulties with his knees but he was not sure whether he ever mentioned that his difficulties were due to his work. The worker indicated that he was not aware of the WCB process back then and he thought his employer would have filed a claim.

On March 31, 2014, the WCB adjudicator spoke with the worker's supervisor who confirmed that he performed a search of the worker's files and found no documentation regarding any knee difficulties and no documentation pertaining to a knee injury due to his employment. There had been no change in the worker's duties or workload around the time of the alleged accident.

Medical information was obtained including reports from the worker's treating physician and orthopedic surgeon and MRI results pertaining to both knees dated September 23, 2011. The MRI results stated:

Right knee - Moderate patellofemoral and medial femorotibial osteoarthritis. Full thickness radial tear posterior junctional zone medial meniscus.

Left knee - High grade cartilage loss involving the medial femorotibial and patellofemoral joint spaces. Radial tear of the posterior horn medial meniscus.

The medical reports were reviewed by a WCB medical advisor at the request of the WCB adjudicator. The medical advisor commented that the MRI findings were in keeping with degenerative changes and were not related to a workplace injury.

In a decision dated April 2, 2014, the WCB advised the worker that his claim for bilateral knee difficulties was not compensable. Based on the information obtained from the worker and the employer, and the MRI results, the WCB adjudicator stated that he was unable to establish a direct relationship between the development of the worker's symptoms and his work activities. It was felt that the worker's current and ongoing difficulties were the result of significant pre-existing degenerative changes, rather than his workplace duties.

In a further decision dated April 11, 2014, the worker was advised that the WCB considered the x-ray reports he submitted from 2010 and 2014 and that both reports suggest the presence of

degenerative changes in the knees bilaterally. Based on this and other file information, it was the WCB's position that a relationship had not been established between the worker's bilateral knee difficulties and his described job duties. On May 16, 2014, the worker appealed the decision to Review Office.

On July 14, 2014, Review Office determined that the worker did not have an accident as defined in The Workers Compensation Act (the "Act") and his claim was not acceptable. Review Office's decision was based on the following factors:

• the worker delayed in filing a WCB claim. His employment ended in September 2011 and he filed a WCB claim in March 2014.
• the worker was not sure if he told his employer that his difficulties were related to his work.
• there was no reported change in the worker's job duties to account for the onset of his symptoms.
• the WCB medical advisor opinion that the MRI findings were in keeping with degenerative changes.
• Review Office was unable to medically account for the structural changes in the worker's knees in relation to his general work duties.

On August 7, 2014, the worker filed an appeal with the Appeal Commission as he disagreed with Review Office's decision of July 14, 2014 and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and the policies of the Board of Directors.

The worker is appealing the WCB decision that his claim for knee injuries is not accepted. The key issue in this appeal is causation. The panel must determine whether the worker’s knee injuries arose out of and in the course of his employment. In this regard, subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

Worker's Position

The worker submits that his knee problems are directly related to almost 30 years of service with his employer. He advised that his duties included lifting and walking for prolonged periods, standing for prolonged periods, climbing ladders and stairs, crouching, kneeling, bending and twisting and lifting heavy objects. He believes that these duties caused his knee problems.

The worker said that he first noticed problems with pain and stiffness in late 2009 or early 2010. He advised there was no increase in workload around the time he began noticing symptoms. He indicated that he has worked at similar duties for his full career with the employer.

The worker advised that he retired from his long-term employment due to his knee problems.

Employer's Position

The employer provided a written submission outlining its position. The employer opposed acceptance of the worker's claim and submitted that there has been no evidence to establish a direct relationship between the development of his symptoms and his overall work activities. The representative noted key elements, including:

· the worker denied a specific incident.

· the worker confirmed there have been no changes in duties over 30 years.

· the worker confirmed he continued to perform his regular duties.

· the worker 's inability to validate that he reported a work related situation to his employer.

· no "green card" was ever completed by the worker.

· the worker retired in September 2011 and did not file a WCB claim until March 12, 2014.

· the worker's response that he did not know about WCB filing process when he in fact had filed 2 prior claims.

· the worker attended an orthopedic specialist on approximately 13 occasions between June 2011 and March 2014 and did not advise that the injury was work related.

· a WCB medical advisor opinion that MRI results dated September 23, 2011 show significant degenerative changes indicative of osteoarthritis and radial tears of the medial menisci, typically associated with degenerative changes.

· a WCB medical advisor opinion of April 1, 2014 advising on a balance of probabilities, the worker's bilateral knee changes are in keeping with degenerative changes.

Analysis

The issue before the panel is whether the claim is acceptable. This involves a determination of whether the worker’s knee injuries 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 injuries were caused, aggravated or enhanced by the worker’s job duties. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's injuries did not arise out of or in the course of his employment and were not aggravated or enhanced by his job duties.

In making this decision the panel notes:

• the worker did not recall whether he had advised his employer that his knee problems were related to his employment.
• the employer's advice that the worker did not report any work-related injury involving his knees and did not file a green card
• there were no changes to the worker's duties to account for the worker's symptoms which he said began 3 or 4 years before his retirement
• the worker saw the orthopedic specialist on many occasions over a 2 year period but did not advise the physician that he thought his condition was due to a specific work injury or to his work duties.
• the worker did not file a WCB claim until more than 2 years after he had retired from his employment.

Regarding the worker's medical conditions and whether they could have been caused by his work duties, the panel relies upon the opinion of the WCB medical advisor that "The MRI findings are in keeping with degenerative changes. On a balance of medical probability, these bilateral changes are not related to workplace injuries."

The panel is not able to relate the worker's knee problems to his employment and, accordingly finds the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 4th day of November, 2014