The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after August 26, 2015 in relation to his right knee injury. A hearing was held on September 22, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after August 26, 2015.

Decision

That the worker is entitled to benefits after August 26, 2015.

Background

The worker filed a claim with the WCB for a right knee injury that occurred on June 12, 2015. The worker reported that he was going down a staircase and stepped on a one-inch rock which rolled his right ankle and injured his right knee. By evening, his right knee had swelled up. He did not think anything of it at first, but by the next morning he had a hard time getting up and his right knee was in a lot of pain. The worker said he had a previous injury to his right knee.

The Employer's Incident Report stated the worker woke up on the morning on June 13, 2015 with soreness in his right knee. The worker reported that he misstepped when coming down stairs the previous morning. The employer indicated the worker had a pre-existing knee injury which was bothering him prior to his return from time away on June 4. The employer also noted that the landing of the steps was clear from large rocks and obstructions, with no potholes at the bottom.

On June 14, 2015, the employer's safety coordinator stated:

When [the worker] reported that his knee was causing him discomfort and rendered him unable to work, he disclosed that he had initially injured it in an (sic) recreational ATV rollover that occurred sometime in 2014. He had an MRI scheduled for his next furlough home and had been feeling discomfort in his knee prior to his return to site on June 4th.

I don't believe that stepping on a small rock and turning his ankle slightly was enough to leave his knee in bad enough shape to make him unable to work. In the attached photographs, you can see that the ground at the base of the steps is clean of any major obstacles, rocks, or potholes.

When speaking with the WCB on June 18, 2015, the worker confirmed the accident description he provided in his injury report. He added that when he rolled his ankle he was trying to hold himself up and that was when he twisted his knee. The worker stated that he injured his right knee about a year earlier when quadding. He went to the doctor and was told he just hyper-extended his knee. They did x-rays which did not show anything. Since then, he had the odd pain in his right knee but nothing serious enough to seek any medical attention and nothing to keep him off work.

On July 2, 2015, the worker advised the WCB that he was scheduled for right knee surgery. He also stated that he injured his right knee in April 2015 when he jumped off the back of his truck. The worker said there was only some minor swelling to his knee at that time. He later sought medical attention and the physician could not see any significant damage to his knee.

The WCB obtained medical information which consisted of an emergency room report dated June 13, 2015, MRI results of the right knee dated June 26, 2015, and a report from the treating physician dated June 30, 2015.

On July 2, 2015, a WCB medical advisor reviewed the claim file and answered questions related to the worker's right knee condition. The medical advisor stated, in part:

The MRI demonstrates the following diagnoses: a complete right ACL tear, along with tears of the right medial and lateral menisci, and injury to the MCL.

It is noted that there appear to have been 3 separate incidents involving the R knee - one in 2014, one in April 2015, and one on June 12, 2015. Note that the June 25 MRI was actually ordered prior to the DOI, in relation to the claimant's 2014 R knee injury, reportedly sustained in an ATV rollover.

There are no medical reports on file from prior to the June 13, 2015 ER report.

On August 14, 2015, a WCB orthopedic consultant reviewed the claim file after additional medical information had been submitted regarding the worker's prior right knee condition. The orthopedic consultant opined as follows:

• The probable diagnosis related to the injury of June 12, 2015 was a sprain/strain injury of the right knee.
• There was documentation of a twisting injury involving the ankle and knee in the workplace. This was of low velocity, and no connection with any external force. The severity of this injury would not account for the significant changes identified in the MRI study six weeks later.
• The extensive degenerative tearing of the medial meniscus did not relate to the mechanism of the compensable injury. At most, there may have been a brief excitation of the pre-existing condition as a result of the compensable injury. The torn ACL identified on the MRI would not relate to the mechanism of injury of this claim. The imaging study had, in part, identified an element of healing of the ACL tear, which could not have occurred within the time frame from injury to the MRI study.
• There was no combined effect between the compensable injury and the pre-existing condition. Recovery from the compensable injury would have been complete in four to six weeks maximum.
• There had been no aggravation or enhancement of the pre-existing condition.

On August 24, 2015, the worker was advised that the WCB was unable to attribute his current level of impairment to the injury that occurred at work on June 12, 2015. Based on the accident description, diagnosis, treatment rendered, treatment duration and current medical findings, the case manager was of the opinion that the worker had recovered from the compensable injury and any ongoing difficulties were unrelated. As a result, the WCB was unable to accept any further responsibility beyond August 26, 2015, including wage loss and medical treatment related to the compensable injury.

On September 3, 2015, the employer appealed the WCB's decision to accept the claim and pay wage loss benefits to the worker.

In a letter to the WCB orthopedic consultant dated September 14, 2015, the treating surgeon noted that she had again reviewed the worker's accident history with the worker. She stated that he described the first injury when he went over the handlebar of his quad in August 2014. He had knee pain and swelling that improved. The worker denied jumping out of a window (which had been referred to in a previous history dictated by her resident), but believed that he had an injury to his knee when he stepped out of the back of a truck and landed on a mattress. This was when he was doing spring clean-up in March 2015. Both of these injuries produced a short duration of knee symptoms, including some minor swelling, but they did improve. The worker did not, as he described, have any sense of instability after either of these injuries.

The surgeon noted that the June 12, 2015 work injury produced a pop and pain in the worker's knee, and he had instability of his knee afterwards. The MRI following the June 12 injury demonstrated an ACL tear which was complete. The surgeon said this directly related to his sense of instability or mistrust of his knee. The surgeon stated:

Clearly we will never know the amount of injury to his knee that was contributed to by his two prior injuries. I feel fairly strongly however that the patient gives a fairly concise history without prompting of knee instability that followed only the June 12th injury. To the best of my knowledge and understanding his ACL tear occurred at the June 12th injury.

On September 15, 2015, the worker also advised the WCB case manager that the history on his file was incorrect. He said that he did not jump from a window onto a mattress and did not injure his knee while working on a pickup truck. The worker indicated that he strained his right knee prior to the compensable injury, and had fully recovered, based on the fact that he was able to perform his regular duties prior to the June 12 accident.

On September 18, 2015, the worker appealed the case manager's decision that there was no entitlement to benefits beyond August 26, 2015. On September 25, 2015, the worker provided Review Office with a detailed submission to support his position.

On October 9, 2015, at the request of the case manager, the worker's file was again reviewed by the WCB orthopedic consultant.

In a further decision dated October 29, 2015, the case manager advised the worker that it remained the WCB's position that he had recovered from the compensable injury of June 12, 2015, and any ongoing difficulties were related to his pre-existing right knee difficulties. Based on his review of the file information in consultation with the WCB orthopedic consultant, the case manager indicated that the need for surgery was the result of injuries that were much more significant in nature than the June 12, 2015 workplace injury, and those injuries had been present for months, if not years, prior to the workplace incident.

On November 4, 2015, prior to rendering decisions on the employer/worker appeals, Review Office spoke with the worker regarding the mechanism of injury that occurred on June 12 and the events that occurred when he jumped down off a tailgate in April 2015. Review Office also sought medical advice from the WCB orthopedic consultant, which was provided on November 10, 2015.

On November 13, 2015, Review Office determined that the claim was acceptable, and that there was no entitlement to benefits beyond August 26, 2015. With respect to claim acceptability, Review Office concluded that the worker injured his right knee while going down a set of stairs on June 12, and the compensable diagnosis in relation to the accident was an acute sprain injury of the right knee. Review Office found that the worker had a loss of earning capacity beginning on June 13.

Regarding the entitlement to benefits after August 26, 2015, Review Office indicated that it placed little weight on the worker's amended description of the accident as captured in the memo to file dated November 4, which included a buckling knee and a fall, and was placing more weight on the file evidence that was closer in time to the June 2015 work event, that there was no fall. Review Office accepted the WCB orthopedic consultant's August 14, 2015 opinion(s) in regard to the forces and severity of the accident.

Review Office concluded that the surgical procedure performed on August 20, 2015 was aimed at addressing conditions which were unrelated to the June 12 accident, and there was no evidence that the workplace accident made the surgery necessary. Review Office concluded that the worker's compensable injuries had run their course by August 26, 2015, and he was not entitled to benefits beyond that date. On May 5, 2016, the worker 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 (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 assisted at the hearing by an advocate, who made a presentation on his behalf. The worker responded to questions from the advocate and the panel. A written submission was also provided in advance of the hearing, which included a report from the treating orthopedic surgeon dated September 2, 2016.

The worker's position was that he had two minor non-compensable injuries which pre-dated his work-related injury in June 2015. It was his position that the surgery which he underwent on August 21, 2015 was the result of his June 2015 work-related injury, rather than his two non-work-related injuries. It was noted that the orthopedic surgeon who performed the August 21 surgery on the worker's right knee was of the same view.

The worker described his two previous incidents and injuries, his job duties, the incident on June 12, 2015 and what occurred thereafter. His description of the first injury was that it occurred on July 30, 2014 when he was quadding. He hit a hole, which stopped the machine and he flipped over the handlebars. His foot was held up on the quad. He went to the hospital the next day, and was told that he had bruising and had hyperextended his knee. The worker said he thought that the knee was back to normal within 3 to 4 days, and felt that he could have gone back to work at that time, but the employer had substituted another person for his rotation. He returned to work, doing his regular duties, on the following rotation. The worker indicated that he would occasionally feel pain in his knee generally after that, particularly when bending and going up ladders. He did not seek any other medical attention for the knee or suffer any other injuries between July 31, 2014 and April 7, 2015.

The second injury occurred on April 7, 2015 when he jumped off the back of his truck onto a mattress. He said he fell forward onto the mattress in what he described as an unorthodox landing. The next day he saw his doctor, who said he had bruised his knee again, and that because it was the same knee, he would book an MRI. The worker said the doctor knew he was returning to work, but at no point did he tell him not to do so. The worker said the knee was sore for a couple of days after the incident, but it did not seem to be anything permanent. He was able to continue doing his regular work duties. He did not lose any time from work between April 7 and June 12, and did not seek any further medical attention for his knee or suffer any other injuries during that period of time.

With respect to the June 12, 2015 incident, the worker said that he was going down the stairs in a hurry, stepped on a rock and slipped. When he slipped, he started to fall backwards and grabbed for the right rail which he said "kind of just broke my fall for a second, but I slipped off and landed on my back and … my leg stopped, and my knee kept going up, and…to the left…" It was noted that the worker's claim based on that injury was accepted, and he was paid benefits up until August 26, 2015. The worker said that he was eventually cleared to return to work on March 23 or 26, 2016.

The worker's advocate submitted that the evidence indicates that the worker had only 2 prior injuries, both of which were relatively insignificant. There was no time loss, other than perhaps a couple of days in July 2014; the worker was able to keep working a very physical job and to return to such activities as playing baseball and hockey; he did not go for medical treatment after the initial treatment; and he was never authorized to be off work.

The advocate stated that it was only after the work-related injury on June 12, 2015 that the worker was told by his physicians to remain off work. He continued after that with ongoing medical treatment which led to his August 21, 2015 surgery.

The advocate noted that the June 26, 2015 MRI was after the worker's work-related accident, and there was no earlier MRI for comparison purposes. It was submitted that the fact that the MRI was ordered prior to the work-related injury did not mean that the work-related injury did not occur or that the findings on the MRI were not the result, in whole or in part, of his work-related injury. It was submitted that weight should be placed on the report from the worker's orthopedic surgeon dated September 2, 2016, where the surgeon opined that the findings in the worker's MRI were consistent with the symptoms he complained of following the June 12 injury and which supported that the worker's inability to work was because of the compensable injury.

In conclusion, it was submitted that the evidence supported that the worker's June 12, 2015 workplace injury, either alone or in concert with the worker's previous right knee injuries, led to the need for surgery and caused him to have a loss of earning capacity beyond August 26, 2015.

Employer's Position

The employer was represented by its Human Resources Coordinator, who participated in the hearing by teleconference.

The employer's position was that the mechanism of stepping on a pebble would not have resulted in such a significant injury. The employer's representative stated that they took pictures of the steps where the incident occurred, which were on the claim file. She noted that the worker indicated that he attended a safety meeting after the incident, then resumed his regular duties. He did not report the incident until the next morning.

The representative stated that all of the information they could have provided was on the WCB claim file. She submitted that the previous incidents in 2014 and 2015 were particularly significant. She noted that the worker acknowledged the 2014 incident and any discomfort resulting from that incident. The representative submitted that it was also significant, in the employer's view, that an MRI had already been scheduled prior to the June 12, 2015 workplace incident.

Analysis

The worker has an accepted claim for a right knee injury that occurred on June 12, 2015. The worker is appealing the WCB decision that he is not entitled to benefits after August 26, 2015. For the worker's appeal to be accepted, the panel must find that the worker continued to suffer a loss of earning capacity and/or required medical aid or other benefits after August 26, 2015 as a result of the June 12, 2015 accident. The panel was able to make this finding.

The panel found the worker to be forthright in answering its questions. The panel acknowledges that the worker had previous problems with his right knee as a result of the incidents which occurred in July 2014 and April 2015. The evidence shows, and the panel accepts, that the worker was able to continue working following those incidents and perform his regular physical duties and activities.

The situation is different with respect to the June 12, 2015 incident. The evidence indicates that the worker's right knee had become very swollen by the time he woke up the following morning, and the worker had trouble getting up or doing anything. He sought medical attention, was taken off work and flew home shortly after that. The evidence indicates that there was no abatement in the worker's symptoms from that point on, up until the time of his surgery on August 21, 2015. Based on our review of all of the evidence on file and at the hearing, the panel finds, on a balance of probabilities, that there was a drastic and progressive change in the worker's ability and function as a result of the June 12, 2015 incident.

The panel notes that the worker's description of the incident on June 12 showed that as he slipped and was moving backwards, his right foot was planted and his knee was moving in a left and forward direction. The panel finds, on a balance of probabilities, that sufficient torsion forces were involved at that time to result in an aggravation of the worker's condition, which ultimately led to the requirement for right knee surgery a month or two later.

Based on the foregoing, the panel finds, on a balance of probabilities, that the June 12, 2015 incident resulted in an aggravation of the worker's pre-existing condition. As this change in the worker's condition made surgery necessary, the panel finds that the workplace injury caused an enhancement of the worker's pre-existing condition, which is compensable.

The panel therefore finds that the worker is entitled to benefits after August 26, 2015.

The worker's appeal is allowed.

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 18th day of November, 2016