The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to benefits after September 25, 2013 in relation to his compensable right knee injury.  A hearing was held on March 3, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterSeptember 25, 2013.

Decision

That the worker is entitled to benefits after September 25,2013.

Decision: Unanimous

Background

On September 25, 2013, the worker suffered injury to his right knee which he related to the following incident: "I stepped onto a curb with my right foot where the sidewalk and the curb had about a 3/4 to 1 inch drop. My right foot twisted and in an attempt not to fall twisted and hyper extended my right knee." The worker indicated that he verbally reported the injury to his employer on the same day. Prior to the incident, the worker noted that both his feet were swollen and blistered and he was unable to bend his toes.

On October 18, 2013, the worker advised a WCB adjudicator that his job duties changed from vehicle to walking patrol and that this was the cause for his foot blisters that developed on September 23, 2013. The worker also referred to the work incident of September 25, 2013 when he slipped on an uneven surface and twisted his right knee. The worker indicated that he verbally advised his employer of his right knee on the date of injury and that he had completed an incident report on October 4, 2013 as he was worried that his symptoms were not resolving. The worker noted that he continued to work his regular duties and was seeking medical attention the following day.

Medical information showed that the worker was seen for medical treatment on October 19, 2013 regarding a right knee pivot injury at work. The physician noted "ongoing medial pain, no remote knee injury. Foot issue with blistering & black toenails." The worker was diagnosed with a right knee sprain/meniscal aggravation with mild osteoarthritis.

In a decision dated October 31, 2013, the WCB determined that the events on September 25, 2013 met the definition of an accident and therefore the claim for compensation was acceptable. The WCB also opined, however, that there was no relationship between the worker's subsequently diagnosed right knee condition and the September 25 incident as the worker continued to perform his regular duties and he delayed in seeking medical attention and therefore no responsibility was being accepted for time loss or medical expenses beyond the date of accident.

On April 29, 2014, the worker underwent an MRI on his right knee. The results showed chondromalacia and a complex tear of the posterior horn of the medial meniscus.

On August 14, 2014, the WCB considered the MRI result and indicated to the worker no change would be made to the October 31, 2013 decision. On September 2, 2014, the worker appealed the decision to Review Office.

On September 10, 2014, the employer submitted that there was no clear evidence to show that the tear found on the MRI was caused from stepping down off a curb of one inch and that the October 31, 2013 decision should be upheld.

On October 7, 2014, Review Office allowed the worker's appeal and determined that he was entitled to benefits beyond September 25, 2013. Review Office was satisfied with the continuity between the accident date and the worker's ongoing complaints and medical information to support a cause and effect relationship between the accident of September 25, 2013 and the injury the worker sought medical attention for on October 19, 2013. On October 27, 2014, the employer disagreed with Review Office and an appeal was filed with the Appeal Commission.

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.

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) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Employer's position:

The employer was represented by a regional senior manager who participated via teleconference. The employer noted that this was a complex case and that it agreed with the WCB's initial decision that a relationship between the injury and the work being performed at the time of the incident had not been established. A complex tear of the posterior horn of the medial meniscus had been identified as well as underlying degenerative changes within the meniscus itself. It was submitted that a traumatic injury to the meniscus is most often sports-related, although there could also be age-related degeneration of the meniscus. If it is related to actual trauma, the injury is usually caused by a twisting motion on a slightly flexed knee. In the present case, the report by the worker was that he hyper-extended his knee. It was submitted the injury was inconsistent with the action. For that reason, the employer was concerned the injury was more related to degeneration of the meniscus rather than from an actual tear.

The employer noted that the worker's written material raised issues regarding the conduct of the employer (which conduct was denied), but emphasized that the question to be looked at by the panel was whether or not the injury occurred in the course of employment. As the worker described simply stepping down from the curb of one inch, this action did not match the medical diagnosis identified in the worker's knee. Overall, it was submitted that the worker's left knee condition was caused by degenerative changes and that it was not work-related.

Worker’s position:

The worker attended the hearing and was assisted by a worker advisor. It was submitted that there was never a dispute that the worker had an incident at work on September 25, 2013. The question concerned the extent of that injury and whether or not it required any restrictions or medical treatments. After the incident where he twisted and hyper-extended his knee as a result of the unevenness of the cement, the worker reported the accident on the same day to his employer. While he did continue to work, it was submitted that there were reasonable explanations as to why he was able to do so. First, the worker had just been switched from vehicular patrol to a foot patrol and he expected some soreness in his feet and legs. He did not want to take time off as he did not have much in the way of sick time. He expected to be returning to his mobile unit within two weeks and hoped that the injury would be resolved by that time. With respect to delay in seeking medical attention, the worker had first-aid training and was treating himself with rest and ice, which were the same recommendations that his doctor provided him when he did seek professional medical attention. When his knee did not improve, he finally went for medical attention as his symptoms had become a continuous ache and it was impacting his ability to sleep.

It was not denied that the worker had underlying degenerative changes in his knee but the WCB medical advisor along with the treating physician and physiotherapist all felt that the worker's symptoms were indicative of a meniscal tear. There was no evidence of any previous difficulties from the underlying changes in the worker's knee. The meniscal tear was surgically repaired in October 2014.

With respect to wage loss benefits, it was submitted that while he was able to work for a couple of days, following receiving medical attention, the worker was provided with restrictions which were not accommodated by the employer. The employer had confirmed repeatedly that they were unable to accommodate the worker in anything other than a walking position. As such, the worker was entitled to wage loss benefits and the surgical treatment he had received.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits after September 25, 2013. In order for the employer's appeal to succeed, the panel must find that the worker's compensable injury was a minor strain to the knee which required no medical aid and did not cause the worker to suffer a loss of earning capacity beyond September 25, 2013. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker described in detail the mechanism of injury which occurred on September 25, 2013. He was walking between two parked cars on the street, and was heading towards the sidewalk, which was made of interlocking paver stones on a sand base. He lifted his right foot to step over the curb, and when he planted his right foot down, there was a slight discrepancy of about half an inch in the height of the sidewalk pavers. The unevenness of the ground caused the worker to lose his balance to the right when he put his weight on his right leg. The worker's evidence was that he found himself twisting to the right to keep himself from falling. The footwear he was wearing was a nine inch lace up boot which supported the ankle. The worker stated that if he had not been wearing the boots, he would have rolled his ankle to the outside. When asked about the hyper-extension, the worker stated that as he tried to regain his balance, he was falling forward. His knee had locked and as he fell forward, he felt that he had stretched the back of his leg, which was what he described as the hyper-extension.

While the mechanism of injury described by the worker was quite moderate in nature, the panel accepts on a balance of probabilities that in the environment of pre-existing degenerative changes, a stumble incident as described by the worker would be sufficient to cause an acute tear or at least a worsening of a chronic tear to the medical meniscus. The opinion of the WCB orthopedic consultant was that the MRI and operation-identified torn medial meniscus should be accepted as arising out of the compensable injury of this claim and the panel accepts this opinion. Although there was some delay in seeking medical attention, there was a consistent reporting of medial joint line tenderness from the outset. The panel finds that there was a worsening of the medial joint line pain as time progressed, possibly contributed to by the continued performance of the foot patrol duties. We therefore find that the WCB properly accepted responsibility for the right torn medial meniscus and the partial medial meniscectomy.

With respect to wage loss, the employer acknowledged at the hearing that no modified or alternate duties were available to accommodate the restrictions of limited walking/standing and avoiding uneven ground, as imposed by the worker's treating physician. As such, the worker is entitled to wage loss benefits after September 25, 2013 as his earning capacity was affected beyond that date.

The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015