Decision #106/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after February 6, 2015. A hearing was held on May 10, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after February 6, 2015.
Decision
That the worker is entitled to benefits after February 6, 2015.
Decision: Unanimous
Background
The worker filed a claim with the WCB for a left knee injury that occurred on September 4, 2014 in the course of his employment as a refrigeration mechanic. The worker reported that he was on his knees probably all day while changing an air conditioning unit condenser and motor. When he got up, he had stiffness in his left knee. The worker did not report the injury to his employer until September 9, 2014, as he had a couple of days off and thought his knee condition would get better.
On September 10, 2014, the employer reported that the worker "was working on repairing the air conditioner, he spent a lot of time on his knees, towards the end of the day, there was a lot of soreness in his left knee. He did not strike it or bang it, he just spent a lot of time on his knees. He was using a cusioned (sic) mat to kneel on during the day."
On September 18, 2014, the worker provided a WCB adjudicator with the following information regarding his work activities on September 4, 2014:
…shift was 8:00 am to 4:00 pm, he was on knees most of the time. He was changing compressor (100 lbs) and condenser (15 lbs) on AC unit. He worked in a box, 2 by 2 feet sitting on floor, sitting in cubby hole. He was on knees changing pipe and electrical work. He was there the whole day. He spends time on his knees, so if he is doing this for 8 hrs, he is no spring chicken anymore. Going down an hr is ok but 8 hrs takes its toll. He lifted compressor with his hands. He was not injured then. He worked in box sitting on floor. Knee was injured with kneeling. As day went by he found he was getting stiffness in knee, still had to do job.
A Doctor First Report for an examination on September 9, 2014 noted that the worker had been working on his knees over six hours which led to soreness in the left knee that had affected his subsequent work. The diagnosis rendered was a left knee strain and physiotherapy was recommended. It was reported that the worker could return to his regular duties by September 9, 2014.
On September 23, 2014, the worker was seen by a physiotherapist for an initial assessment. The physiotherapist's diagnosis was meniscal left knee pain with slight patellofemoral irritation.
On October 30, 2014, a left knee x-ray was read as follows:
Medially there is minimal narrowing and sclerosis. Minimal narrowing is evident at the patellofemoral joint. A spur is seen arising from the superior patellar pole. No acute bone or joint abnormalities are appreciated.
On December 8, 2014, an MRI of the left knee was read as follows:
Chondromalacia as described. Radial tear in the posterior horn of the medial meniscus with separation of fragments.
A WCB medical advisor reviewed the file on January 7, 2015 to answer questions posed by WCB case management. The medical advisor concluded:
The diagnosis of the September 4, 2014 workplace injury was a strain to worker's left knee based on the medical information provided. The most recent MRI showed a posterior horn medial meniscal radial tear with effusion.
The natural history of this condition (strain to the knee) is recovery in 6 to 8 weeks.
The worker's description of the mechanism of injury was not compatible with the MRI findings.
On January 13, 2015, an orthopedic surgeon reported that based on his examination of the worker's left knee and the x-ray and MRI findings, the overall diagnosis appeared to be tearing of the posterior horn of the medial meniscus on a background of patellofemoral and medial compartment wear. He noted: "It is only two months from the time of onset and I would not suggest consideration for any surgical intervention…"
On January 21, 2015, a WCB orthopedic consultant reviewed the file information and stated:
The radial tear of the left medial meniscus would typically have occurred because of a twisting injury of the knee when weight bearing and partially or fully flexed. Prolonged kneeling was not a typical cause of such a meniscus tear. Although it was possible that a meniscus tear might occur with prolonged kneeling, it was not probable.
The MRI findings represented a degenerative change which would have pre-existed the reported workplace injury.
There was no objective medical evidence that the workplace injury caused aggravation or enhancement of the pre-existing condition.
In a decision dated January 30, 2015, the worker was advised of the WCB's opinion that the mechanism of injury of kneeling would not be consistent with the MRI findings of December 8, 2014. As such, no further responsibility would be accepted for wage loss or coverage for medical treatment after February 6, 2015.
On March 11, 2015, the worker contacted a WCB senior case manager, questioning the denial of his knee injury. The worker noted that he was working in a very confined space, for an extended period of time, with a lot of body maneuvering in order to remove, rewire and replace a compressor. The worker's position was that he was not sufficiently probed, or asked enough questions by the WCB to fully detail the work events that led to his injury. Arrangements were made for a further review to be conducted by a WCB orthopedic consultant.
On March 25, 2015, the WCB orthopedic consultant stated that he reviewed the worker's accident report of September 9, 2014 and the recent update on the mechanism of injury. Based on his review of all the information, he opined that it was more probable than not that the meniscal tear in the left knee pre-dated the workplace incident of September 4, 2014.
On May 13, 2015, the worker's family physician stated, in part:
It is my feeling as his family physician that his strenuous work life has played largely into his injury of his left knee. His work includes lifting and maneuvering heavy objects routinely, as well as kneeling and crawling into small places. Much of his work is physically demanding and strenuous.
On May 21, 2015, the WCB orthopedic consultant reviewed the family physician's report and stated that he was still of the opinion that the workplace injury of September 4, 2014 did not cause the osteoarthritis or the medial meniscus pathology.
That same day, the worker was advised that no change could be made to the WCB decision to end benefits as of February 6, 2015.
On June 16, 2015, the WCB was provided with a copy of a May 4, 2015 report from the treating orthopedic surgeon, which stated: "Radial tear with separation of fragments after crouching at work. Candidate for scope treatment. Explained. Unsure as to why he was cut off WCB. Mechanism and history seem compatible with pathology. A crouch can do it."
On June 17, 2015, the WCB orthopedic consultant considered the May 4, 2015 report by the treating orthopedic surgeon, and stated:
As previously noted, crouching would be an atypical mechanism for causing a meniscal tear. Twisting of the loaded flexed knee would be the typical mechanism.
Although it is possible that the workplace injury was the cause of the meniscal pathology, it is more probable that the meniscal pathology is of degenerative etiology.
The contemporary reports of the findings immediately after the reported workplace injury did not point to an acute meniscal tear, as previously stated in my opinion on file.
On June 19, 2015, the worker was advised that based on a review of his claim, including the treating orthopedic surgeon's report and follow up review by the WCB orthopedic consultant, there was no change to the previous decisions of January 30 and May 21, 2015, and no entitlement to WCB benefits beyond February 6, 2015, as a relationship no longer existed between his left knee difficulties and the workplace injury of September 4, 2014.
On June 25, 2015, the worker appealed that decision to Review Office. On August 5, 2015, the employer's representative submitted to Review Office that there was no reason to reverse the decision that there was no entitlement to benefits beyond February 6, 2015.
On August 25, 2015, Review Office determined that a relationship between the worker's left knee difficulties beyond February 6, 2015 and the workplace injury sustained on September 4, 2014 had not been established, and as a result, there was no entitlement to benefits beyond February 6, 2015. Review Office accepted the opinions of the WCB medical consultant and the WCB orthopedic consultant that the compensable diagnosis was a left knee strain/sprain and that recovery from such an injury would be within a short duration. It placed weight on the physician's examination of the worker on September 9, 2014, where it was recorded that there was "No evidence of damage to…meniscus."
Review Office concurred with the WCB orthopedic consultant's opinion that the recorded clinical findings initially after September 4, 2014 were not indicative of a traumatic radial tear of the medial meniscus. Review Office noted that the x-ray and MRI results demonstrated degenerative changes. It was of the opinion that these findings were not caused by the workplace accident, and did not find the evidence to show that they were structurally changed as a result of the worker kneeling for a prolonged period of time. On September 23, 2015, 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 WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
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."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
Worker's Position
The worker was self-represented. The worker made a presentation and responded to questions from the panel.
The worker's position was that his left knee difficulties and surgery subsequent to February 6, 2015 were related to his workplace injury of September 4, 2014.
The worker described the area he was working in and the various tasks he performed on September 4, 2014. With reference to photographs on file, the worker pointed out that the area he was in was a closet about 4 feet by 9 feet in size, and the air conditioner itself was in a smaller closet or cubbyhole in the closet, which he accessed through a doorway about 3 feet wide. While working on the air conditioner, he had to kneel in the doorway, with his knees a few inches in front of the doorway and half of his body and his feet sticking out the doorway. He had set up his equipment in the larger closet. He had his smaller hand tools beside him when he was working, but had to keep his bigger tools, his pressure gauges and other things behind him on the other side of the doorway as he could not get them into the cubbyhole.
The worker stated that the condenser was about 2 feet high, and he had to work over the top of it, so he was basically working on his knees, leaning over the condenser with his body, with his feet behind him. As this was an older system, it took him 2 or 3 hours longer than usual, or a total of about 6 or 7 hours to complete the work, which included changing the condenser and compressor, rewiring the whole unit and reconfiguring everything to fit.
The worker said that he spent almost all of his time that day on his knees in the cubbyhole. He was not just on his knees, however, but was twisting, turning and actually reaching behind him all day to get what he needed. When removing and replacing the heavy compressor and condenser, he was squatting to get them in place.
The worker submitted that the WCB medical opinion indicated that the meniscal tear would typically have occurred because of a twisting injury in the knee when weight bearing, and partially or full flexed, and stated "that's exactly what I was doing all day."
Employer's Position
The employer was represented by an advocate. The employer's position was that the worker was not entitled to benefits after February 6, 2015. Their position was based on the mechanism of injury, the initial findings and symptoms which were reported at the time, the diagnostic testing, and primarily the opinion of the WCB medical consultant.
The employer's advocate noted that the worker asserted, both initially and at the hearing that he was kneeling for 7 to 8 hours, fixing the air conditioning unit. The employer submitted that kneeling was not something that would cause a radial tear of the meniscus. The worker was questioned on September 18, 2014, and while he mentioned lifting the compressor, he was not injured while doing so, but was injured while kneeling. He did not describe a traumatic injury or twisting or turning motion, only that he felt stiffness in his knee as the day went on and found it hard to straighten his knee when he would get up.
The employer's advocate submitted that more weight should be given to the findings at the time of and in close proximity to the workplace injury, and that those findings do not point to an acute or traumatic meniscal tear. The initial medical reports did not show anything other than knee strain, and would have been based on the symptoms reported. The clinical findings showed no evidence of damage to the meniscus. There was no mention of locking, catching, popping, or any of the things that are characteristic of a traumatic, as opposed to a degenerative tear.
The employer asked that the panel place significant weight on the opinion of the WCB orthopedic consultant who reviewed the file four times and provided the opinion that the findings of the MRI were not related to the mechanism of injury. The medical consultant said that prolonged kneeling was not a typical cause of a meniscal tear, the MRI and x-ray findings were degenerative, there was no evidence that the workplace injury either aggravated or enhanced the pre-existing degeneration, it was more probable than not that the tear occurred at some other time, and the reported findings did not point to an acute meniscal tear.
In conclusion, it was submitted that the worker's symptoms were due to degenerative findings that were noted on the MRI, that the reported symptoms of stiffness, tightness, discomfort sitting, standing and rising were all associated with the degenerative conditions noted on the MRI and x-ray. A significant twisting motion, not just kneeling and getting up, would normally be associated with a traumatic tear. There would be a distinct identifiable event, which did not happen. The employer therefore asked that the worker's appeal be dismissed.
Analysis
The issue before the panel is whether or not the worker is entitled to benefits after February 6, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing left knee difficulties after February 6, 2015 were causally related to his workplace accident of September 4, 2014. The panel is able to make that finding.
The panel notes that the nature and extent of the worker's job activities on September 4, 2014 were explained more fully at the hearing. The additional information and explanation indicated that the worker's activities involved a significant amount of rotation of the worker's torso, as he had to continually reach behind him throughout the day for the tools, equipment and materials he needed to do the job.
The panel accepts the evidence he provided at the hearing. His description of his duties and activities is not inconsistent with the information on file, and provides further details of the work he performed.
The panel carefully examined the mechanism of injury in light of this detailed account of the worker's activities.
The panel notes that the WCB orthopedic consultant's opinion was based on a described mechanism of injury of prolonged kneeling, which he concluded was not compatible with the MRI findings. The consultant's opinion, as stated on January 21, 2015, was that "prolonged kneeling was not a typical cause of such a meniscus tear" and that the "radial tear of the left medial meniscus would typically have occurred because of a twisting injury of the knee when weight bearing and partially or fully flexed."
The additional information at the hearing clarified that the worker was not just kneeling down. His heavier tools and other equipment and materials were behind him, and while kneeling, he was repeatedly turning or twisting to reach back and pick up or return heavy tools and equipment which he used for his work.
While the panel recognizes that the physician who examined the worker on September 9, 2014 recorded that there was no evidence of damage to the meniscus, we note that the physiotherapist who assessed the worker on September 23, 2014 diagnosed meniscal left knee pain with slight patellofemoral irritation.
As noted by the WCB medical consultant on March 25, 2015, "clinical findings on file included positive meniscal tests and tenderness of the medial and lateral joint lines." While the medical consultant went on to note that "the clinical tests for meniscus tear, McMurray and Apley tests, invariably cause pain in the presence of OA, so are non-specific tests under such circumstances", the panel notes that such tests are nevertheless indicative of a tear.
Based on our analysis of the evidence on file and the evidence provided at the hearing, the panel accepts that a diagnosis of a radial tear of the left medial meniscus is consistent with the mechanism of injury as described at the hearing.
The panel therefore finds, on a balance of probabilities, that the worker's ongoing left knee difficulties after February 6, 2015 were causally related to his workplace accident of September 4, 2014. The worker is entitled to benefits after February 6, 2015.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
Signed at Winnipeg this 8th day of July, 2016