The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on September 20, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's left knee medial meniscus tear is acceptable as a consequence of the June 7, 2015 compensable accident; and

Whether or not the worker is entitled to benefits.

Decision

That the worker's left knee medial meniscus tear is not acceptable as a consequence of the June 7, 2015 compensable accident; and

That the worker is not entitled to benefits.

Background

On June 7, 2015, the worker twisted his left knee while maneuvering a resident in a medical chair during the course of his employment.

On June 15, 2015, the worker advised the WCB that he saw a doctor on June 8, 2015 and was currently on holidays so he was resting his knee. The worker reported no swelling, and no trouble walking or bending. He said his knee would become sore when kneeling. The worker reported that he had an injury to his left knee about one year prior when moving the same resident.

When speaking again with an adjudicator on July 16, 2015, the worker advised that his knee was still sore and was making cracking and snapping noises when squatting, kneeling or bending the knee. He had attended a doctor on July 6 and been referred for an MRI.

Medical reports confirm that the worker saw a physician on June 8, 2015. The examination findings were noted as follows:

…the knee is not red, hot or swollen. Range of movement is completely normal. Ligaments are intact. The area where he has pain is where the quadriceps mucle (sic) sits on the patella superomedial side. There is no deficit noted in that area, there is no redness or swelling. There is a little bit of discomfort.

On July 6, 2015, the treating physician noted that the worker:

…twisted his knee one month ago by report at work lifting a resident. He developed acute pain in the left knee…Obviously there is crepitus noted, catching and locking noted. This appears to be a meniscus tear of the medial aspect left knee.

An MRI of the left knee dated October 16, 2015 revealed a small Baker's cyst and a horizontal tear of the medial meniscus. The lateral meniscus, cruciate ligaments and collateral ligaments were considered normal.

On November 2, 2015, a WCB medical advisor reviewed the information on file and opined that the initial diagnosis was a left knee soft tissue injury and the current diagnosis was a horizontal tear of the left knee medial meniscus. He opined that horizontal tears of the medial meniscus are typically degenerative in nature, rather than manifestations of acute trauma. The medical advisor indicated that to meet the criteria of the development of a meniscal tear, the event would need to be associated with a significant twisting force and/or valgus force applied to the knee. He said that although the magnitude of the twisting force described by the worker was not specified, it would not be expected to have been of a significant magnitude to have resulted in an acute structural derangement of the knee such as an acute meniscal tear.

In a decision dated November 19, 2015, the worker was advised that the WCB accepted the incident of June 7, 2015 as a left quadriceps/left knee strain, but the diagnosis for a left horizontal medial meniscus tear was disallowed. The decision was based in part on the WCB medical advisor's comments that a horizontal tear of the medial meniscus was degenerative in nature, rather than from an acute trauma, and degenerative tears may occur without any history of trauma.

On March 24, 2016, a worker advisor appealed the decision to Review Office. The worker advisor argued that the magnitude of the twisting force was significant enough to cause the worker's left knee condition to become symptomatic, and his knee condition became worse following the June 7, 2015 incident while he was performing his regular work duties. In the worker advisor's opinion, the worsening of symptoms following the incident, while the worker was performing his regular duties, supported an association between the diagnosis of left knee horizontal medial meniscus tear and the June 7, 2015 injury.

On April 15, 2016, the employer's representative wrote to Review Office indicating that based on the evidence on file and the WCB medical advisor's opinion, they agreed with the decision to deny responsibility for the meniscus tear.

In a decision dated May 5, 2016, Review Office determined that the worker's left knee medial meniscus tear was not acceptable and that he was not entitled to benefits.

Review Office said the medical findings the day following the accident did not support the worker suffered a meniscus tear on June 7, 2015. There was no evidence a quadriceps injury was likely to lead to a degenerative meniscus tear, and it would not be considered predominately causal in its formation. Review Office found there was no relationship between the worker's compensable accident of June 7, 2015 and his left knee horizontal medial meniscus tear. On May 11, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

Under subsection 4(2), 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides that:

When a worker's loss of earning capacity is caused in part by a compensable injury 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 compensable injury.

The following definitions are set out in the Policy:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor who made a presentation on his behalf. The worker responded to questions from the worker advisor and the panel.

The worker's position was that his left knee horizontal medial meniscus tear was a consequence of the June 7, 2015 workplace accident and should be entitled to coverage. It was submitted that if the worker had an asymptomatic degenerative left knee horizontal medial meniscus tear, as suggested by the WCB medical advisor, the evidence showed that his condition became symptomatic at the time of the June 7, 2015 injury. The tear therefore arose out of and in the course of employment and met the requirements of the Act.

The worker advisor pointed out that they were not suggesting that the June 7 incident caused an acute horizontal tear, but rather that the tear became symptomatic as a result of the incident and therefore arose out of and in the course of employment. She noted that their position in this regard was based on the worker's initial symptoms, including pain on the inside of his knee and his inability to kneel. Referring to medical literature which she had provided to the panel, the worker advisor submitted that the symptoms which the worker experienced were consistent with the symptoms of a medial meniscus tear as identified in the literature.

The advisor submitted that the worker's left knee became progressively worse when he returned to his regular work activities, which led to the need for surgical treatment. It was submitted that this requirement for surgical treatment constituted an enhancement under the Policy, and was therefore compensable.

In the alternative, it was submitted that if it was accepted that the worker had a quadriceps strain, the worker's degenerative tear became symptomatic as a result of that injury and constituted a further injury under WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, as an injury which was predominantly attributable to the compensable injury. In this regard, the worker advisor stated that they were not suggesting that the tear came from the accepted soft tissue injury, but that the injury made the left knee more susceptible to becoming symptomatic when the worker went back to his regular work duties. The tear was therefore related to the incident, and because surgical treatment was required, it became compensable as an enhancement under the Pre-existing Conditions Policy.

Employer's Position

The employer was represented by an advocate, who stated that they agreed with the decision denying responsibility for the worker's left knee medial meniscus tear and resulting treatment and disability.

It was submitted that the mechanism of injury did not appear to be particularly significant, and there did not appear to be a lot of force involved. The advocate stated that they deferred to the WCB medical advisor's November 2, 2015 opinion, and noted that based on that opinion, it seemed clear that the medial meniscal tear which ultimately required surgery was not caused by the relatively minor workplace injury. The advocate also noted that the medical advisor's opinion would not support that the workplace accident or injury aggravated the worker's apparent pre-existing degenerative condition. In summary, there was no basis for the WCB to accept responsibility for the worker's medial meniscal tear.

The advocate further commented that just because there was a workplace incident which affected the worker's knee, that did not automatically mean that the tear was related to the incident. He noted that the evidence indicated, on a balance of probabilities, that the tear itself was degenerative in nature. He submitted that there was no evidence that the tear resulted from the workplace incident, or that the knee was newly injured or made worse when the worker returned to work after his time off.

In conclusion, the employer's advocate submitted that the primary issue under appeal was the tear, and the evidence shows that the tear was degenerative in nature and not related to the June 7, 2015 workplace incident at all.

Analysis

Issue 1. Whether or not the worker's left knee medial meniscus tear is acceptable as a consequence of the June 7, 2015 compensable accident.

In order for the appeal on this issue to be accepted, the panel must find that the worker's left knee medial meniscus tear is causally related to the June 7, 2015 workplace accident. The panel is unable to make that finding.

In reaching our decision, the panel has considered the evidence on file and the evidence provided at the hearing, and places significant weight on the evidence which is more contemporaneous to the injury date, in particular the report of the attending physician on June 8, 2015 and the adjudicator's notes of her telephone conversation with the worker on June 15, 2015.

In the June 8, 2015 report, the attending physician noted that the worker was complaining that his knee was stiff and painful. The physician's examination of the worker was very thorough, and included medical findings that the knee was not red, hot or swollen, that the range of motion was completely normal and the ligaments were intact. It is the panel's understanding that these findings on that date were not consistent with a meniscal tear. The physician diagnosed a quadriceps injury.

One week later, on June 15, 2015, the adjudicator noted to file that the worker had advised that he had "no swelling, no trouble walking, bending. Kneeling becomes sore."

At the hearing, the panel carefully reviewed the mechanism of injury with the worker, and his symptoms and activities immediately after the incident and in the days and weeks that followed. With respect to his initial symptoms, the worker stated that his knee was sore right away, with a dull pain, that the knee became worse overnight and swelled a little bit. Asked about the physician's observation that the knee was not swollen, the worker stated that he himself had compared his knees and found that the left knee was a little bit swollen. The worker also described where the pain was located. The panel noted that his description differed from what was recorded by the attending physician on June 8. When the worker was asked about this, he candidly acknowledged that he could not remember exactly where the pain was located. Accordingly, the panel places greater weight on the examination findings of the worker's attending physician the day after the injury, which do not point to an acute meniscal injury at that time.

Based on all of the evidence, the panel finds that the compensable injury was limited to a left quadriceps/left knee strain.

The panel further finds that the worker's left knee medial meniscus tear was degenerative in nature. The panel notes that the worker, through the worker advisor, does not dispute that the tear was degenerative, but argues that it became symptomatic or was aggravated by or as a result of the injury. The panel is unable to reach that conclusion.

The panel notes that the first findings with respect to the medial meniscus tear did not appear until a period of time after the June 7 accident. The treating physician first noted crepitus and what appeared to be a meniscus tear on July 6, 2015, and the existence of the tear was subsequently confirmed by MRI on October 16, 2015.

In the panel's view, if there had been an aggravation of the degenerative tear, one would have expected to see symptoms of that tear the day after the injury, when the worker first sought medical care. Given the worker's symptoms and the lack of medical findings at the time of the injury, the panel finds that the accident mechanics do not suggest that an aggravation of the medial meniscus tear occurred as a result of the accident.

The panel is therefore unable to establish a causal relationship between the worker's left knee medial meniscus tear and the June 7, 2015 workplace accident.

Based on the foregoing, the panel finds that the worker's left knee medial meniscus tear is not acceptable as a consequence of the June 7, 2015 compensable accident.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the worker is entitled to benefits.

In order for the appeal of this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid benefits as a result of the workplace injury. The panel is unable to make that finding.

The evidence shows that the worker continued to work and did not suffer any time loss in the weeks following his injury. Any later changes to the worker's functional capabilities, including time loss, are not related to the compensable left quadriceps/knee strain injury.

Based on the evidence, and given the panel's decision on issue 1 above, that the worker's left knee medial meniscus tear is not causally related to the June 7, 2015 compensable accident, the panel finds that the worker is not entitled to benefits.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of November, 2016