The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing left knee difficulties were no longer related to his compensable injury and therefore he was not entitled to benefits.  A hearing was held on March 18, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after September 3, 2008.

Decision

That the worker is not entitled to benefits after September 3, 2008.

Decision: Unanimous

Background

The worker was moving a cart loaded with empty boxes at work on July 15, 2008 when he tripped and landed onto his left knee on a cement floor. The worker continued working his regular duties but had to stop work on July 22, 2008. He attended medical treatment on July 24, 2008 and was diagnosed with a left knee sprain/strain.

On September 22, 2008, the WCB denied the worker's claim on the basis that he delayed in seeking medical treatment and therefore a relationship could not be established between his time loss from work starting July 22, 2008 and the July 15, 2008 work incident. The worker disagreed with the decision and an appeal was filed with Review Office.

On November 4, 2008, Review Office accepted the worker's claim based on information submitted by the accident employer as well as medical information dated July 28, 2008. Review Office confirmed that the worker fell at work on July 15, 2008 and that he sustained a personal injury by accident arising out of and in the course of his employment. On February 18, 2009, the WCB determined that the worker was entitled to wage loss benefits from July 23, 2008 up to the date that he was cleared for a return to work on September 4, 2008.

In June 2014, the worker advised the WCB that he was having further difficulties with his left knee which he attributed to the July 15, 2008 accident.

On July 9, 2014, the worker provided the WCB with information related to his left knee difficulties. The worker indicated that he was unable to return to work with the accident employer on September 4, 2008 as his compensable accident occurred before his 90 day probation period ended; therefore he could not get his job back. The next time he worked was in 2010 with a different employer for two months and he has not worked since then. Since 2008, the worker reported that he had swelling around the knee cap which would come and go and that his symptoms worsened in the wintertime. The worker said he saw his doctor every 2 to 3 months since 2008 for other health conditions and he did not discuss his left knee as he thought the swelling would go away. In May 2014, he had fluid drained from his left knee and was told he had bursitis. On June 19, 2014, x-rays showed that he had osteoarthritis. The worker stated that he did not sustain any new injures to his left knee since September 2008.

In a decision dated July 18, 2014, the worker was advised that there was no medical evidence to support a causal relationship between his current left knee difficulties and his compensable injury of July 15, 2008. On July 18, 2014, the worker appealed the decision to Review Office.

On October 1, 2014, Review Office determined that the worker was not entitled to benefits beyond September 3, 2008. Review Office noted that the worker had been diagnosed with a left knee strain/sprain on July 24, 2008 and by September 3, 2008, the treating physician reported that the worker's recovery was satisfactory and that he was capable of returning to full time duties on September 4, 2008. The worker did not seek further medical treatment for his knee until June 19, 2014 and was diagnosed with left knee osteoarthritis.

Review Office stated that given the compensable diagnosis of a left knee strain/sprain, the medical evidence in proximity to the injury, the lack of medical treatment for several years from the time of the injury to the present and the duration of time since the injury occurred, Review Office could not medically account for the worker's current diagnosis and/or ongoing difficulties in relation to the compensable injury. On October 14, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 left knee injury. He is seeking benefits, both wage loss and medical aid, after September 3, 2008.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was self-represented and participated in the hearing by teleconference. He explained his reason for appealing the WCB decision and answered questions from the panel.

The worker advised the panel that he has had difficulties with his left knee since the July 2008 injury. He said that he had inflammation in his left knee that would come and go.

The worker advised that a physician said he had bursitis and another physician said that he had osteoarthritis. He has been told that his knee can be surgically repaired. He believes osteoarthritis developed in his knee as a result of the workplace injury. He advised that he does not have osteoarthritis in any other part of his body and did not have a prior knee injury.

The worker advised that the original treating physician did not obtain an x-ray or CT scan.

The worker advised that he was not recovered in September 2008 but wanted to return to light duty work. Unfortunately, his employer refused to provide him with further employment because the accident occurred while he was on probation. He said that he worked briefly for other employers in 2010 but has not been employed since then.

In reply to a question about why he did not discuss his knee when he saw his physician after 2008, he said that his knee problem comes and goes so he did not raise it.

Regarding his current symptoms, he said that he has pain surrounding his knee cap, on the right side of his knee in the joint. He described the pain as sharp pain which lasts for a minute or two and then goes away. He advised that he had fluid removed from his knee in 2014.

Analysis

The issue before the panel is whether the worker is entitled to further benefits after September 8, 2008. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid benefits after September 8, 2008 as a result of his workplace injury. The panel was not able to make this finding. The panel finds that the worker is not entitled to wage loss and medical aid benefits after September 3, 2008.

In arriving at this conclusion, the panel has considered all the evidence on file and the worker's evidence at the hearing.

The worker was injured in 2008. The worker continued to work for a week after the injury. The medical reports approximate to the date of the injury indicate:

• initial medical report dated July 24, 2008 indicates sprain/strain left knee, slight bruising, very little swelling, good range of motion, and no lump.
• medical report dated August 11, 2008 notes a negative McMurray's test, good range of motion.
• medical report dated August 22, 2008 indicates no swelling, bruising and full range of motion.
• medical report dated September 3, 2008 indicates little to no pain and that the worker can return to regular duties on September 4, 2008.

In addition to the medical reports, a February 12, 2009 note from the WCB case manager indicates that the worker advised that his "knee is not bad." The medical reports do not suggest there was an internal derangement in the knee. The panel notes there is a lack of medical evidence to support a finding that a serious injury occurred on July 15, 2008 which could result in osteoarthritis or bursitis.

The panel also notes that the worker attempted to return to work in the fall of 2008 but the employer would not rehire him. This evidence suggests that the worker recovered from his injury and was willing to return to work.

The panel notes that the worker did not contact the WCB after 2009 until June 2014. He advised that he worked for a short time in 2010 but has not worked since that date. He also told the WCB that he saw a physician after 2008 for other medical reasons but did not seek medical attention for his knee until 2014. The panel finds that the lack of medical attention is inconsistent with ongoing symptoms or pathology which would lead to the development of osteoarthritis or bursitis.

The panel finds, on a balance of probabilities, that the worker is not entitled to benefits after September 3, 2008.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015