The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her compensation claim.  On December 8, 2016, a hearing was held at the Appeal Commission to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

The worker filed a claim with the WCB for a right knee injury that occurred at work on January 6, 2015. The worker noted that she was exiting a pool and lost her footing. She went down onto the deck of the pool, striking her right knee. She "cracked it right at the top at the edge just below my knee cap." The worker noted that she thought she only had a bruise but an hour later she could barely walk. She left work and attended a walk-in clinic.

A Doctor First Report dated January 6, 2015 assessed the worker with a right knee contusion.

The claim for compensation was accepted by the WCB and the worker was paid full wage loss benefits up to January 13, 2015 when she returned to work at full regular duties.

On January 26, 2015, the worker called the WCB to advise that she was still having problems with her right knee. The worker indicated that she last worked on January 23, 2015 and that she attended a walk-in clinic for treatment. The worker said she mentioned her ongoing difficulties to the supervisor at work and also the team leader. The worker indicated that they saw her limping and that they had conversations with her about her difficulties. The worker noted that she recently moved to a new residence and that the bathrooms and bedrooms were upstairs.

On January 29, 2015, the adjudicator spoke with the worker's supervisor who stated that she had spoken with the worker upon her return to work, and that the worker said her knee was still sensitive and was not 100%. The worker was able to perform her regular job duties without assistance. She noticed that the worker was limping when she returned to work but did not notice that it got worse after she returned to work.

The adjudicator also spoke with the team leader on January 29, 2015. He said he noticed the worker limping since her return to work but did not notice that it got worse. He said the worker was doing her regular job duties with no assistance.

In a decision dated February 4, 2015, the worker was advised that her claim for compensation was denied as the information provided did not establish that her ongoing right knee difficulties were related to the workplace incident that occurred on January 6, 2015. The decision noted that the medical information on file confirmed that no medical care was received for her right knee in the period between January 6 and 26, 2015.

On March 19, 2015, a worker advisor wrote the WCB requesting reconsideration of the decision dated February 4, 2015. The submission included additional medical information for consideration. The worker advisor stated, in part, that the new medical report dated February 14, 2015 supported that the worker's "right knee valgus injury with medial impact" was the result of her January 6, 2015 workplace accident. The worker advisor concluded that the worker's right knee injury had not resolved when she returned to work on January 13, 2015 and that her ongoing right knee injury continued to cause a loss of earning capacity.

On March 24, 2015, the WCB adjudicator wrote the worker advisor to advise that no change would be made to the previously outlined decision as a relationship had not been established between the worker's ongoing right knee difficulties and a workplace accident on January 6, 2015. The letter stated:

The worker related her increase in symptoms to a workplace accident on January 6, 2015. [The worker] returned to work after her injury on January 13, 2015 to regular duties and hours. Co-workers confirmed that [the worker] was still limping upon her return to work but that she was able to perform her regular duties without assistance. It is noted that [the worker] provided the information that she moved on January 19, 2015 and her new home had more stairs than the previous one.

On January 29, 2016, the worker advisor requested reconsideration of the decision dated March 24, 2015. The worker advisor noted that the evidence on file from the employer and co-worker confirmed that the worker had ongoing right knee problems and was limping during the period January 6, 2015 to January 26, 2015. The worker advisor submitted a medical report dated August 21, 2015 which showed that as of February 14, 2015 there was ongoing "marked tenderness to the medial patella, medial joint line, and medial capsule. I was unable to perform McMurray's test due to pain…" It was submitted that this information confirmed an ongoing relationship to the workplace accident, being a medial meniscal injury to the right knee.

Following review of the new medical information submitted, the WCB determined on February 16, 2016 that no change would be made to the decision dated February 4, 2015.

On March 1, 2016, the worker advisor wrote Review Office requesting reconsideration of the decisions made on February 4, 2015 and February 16, 2016.

On April 27, 2016, the employer's representative submitted to Review Office that they agreed with the WCB decision of February 4, 2015. The employer also submitted that the claim should not have been accepted by the WCB. A copy of the submission was provided to the worker advisor and her comments are on file dated May 5, 2016.

On May 12, 2016, Review Office determined that the claim for compensation was acceptable. Review Office referred to the worker's incident report, the employer's accident report and the medical information on file. Review Office accepted that the worker suffered a contusion injury as diagnosed by her treating physician, and that it was consistent with a direct blow to the worker's knee as she had described on her incident report.

Review Office also determined that there was no entitlement to further benefits on the claim. Review Office considered the evidence provided by the worker regarding her right knee difficulties as well as the various medical reports on file. Review Office concluded that the worker suffered a relatively minor contusion on January 6, 2015 and that she had recovered to the point where she could return to her regular duties by January 13, 2015 which she continued to do for some two weeks before reporting a worsening of symptoms. Review Office referred to the mechanism of injury and said there were no signs of twisting or twisting under load. Review Office acknowledged that the worker reported no prior knee problems but the file evidence showed that she had significant evidence of pre-existing osteoarthritis, a condition that took years to develop.

Review Office concluded that by January 26, 2015, the worker had recovered from her compensable contusion injury.

On May 26, 2016, the worker advisor 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.

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 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.

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.

Worker's Position:

The worker was represented at the hearing by a worker advisor who made a submission and asked a number of questions of the worker. Her position was that the worker had landed on the medial side of the right knee when she slipped on steps while getting out of the pool. This contact point was consistent with not only a contusion but also a medial meniscus radial tear which was later confirmed by an MRI. The worker advisor pointed to January 6 findings by the worker's attending physician of a very painful range of motion, pain on weight bearing, as well as obvious soft tissue swelling on the medial side of the knee and the observation that the worker was walking with a limp. These findings were consistent with the later January 26 examination findings of continuing impaired range of motion and suspicions of a rotational injury, at which time the worker's physician took her off work.

The worker advisor stated that her review of medical literature suggested that radial tears of the medial meniscus were usually traumatic in nature. She also relied on a January 2016 opinion provided by the worker's treating sports medicine physician that the worker had a degenerative radial tear that would be aggravated or enhanced as a result of the traumatic fall.

The worker also responded to questions from the worker advisor and from the panel. The worker described the nature of her fall while getting out of the pool, hitting the edge of a concrete step along the interior side of her right knee and below her kneecap. For the rest of that day and the weeks following, she performed her regular duties as part of a team but modified some of her job duties while she was at work. She did continue to work with clients in the pool and gym and various activities including bicycling and walks.

Regarding her move to a new residence, the worker advised that she had actually moved at the beginning of the month, and that the move on January 19 was the "big stuff" which was done by movers. She essentially supervised the move on that day.

Employer's Position:

The employer was represented by its Disability Claims & Benefits Coordinator and an occupational health nurse. They supported the current WCB decisions which have concluded that the worker suffered a contusion at work on January 6, 2015 that had resolved by the time she returned to work on January 13, 2015. Any ongoing right knee issues would be related to the worker's significant pre-existing conditions.

The representatives disagreed with the worker's evidence that she had been asymptomatic prior to January 6, as both had seen the worker limping on occasion prior to that date. The occupational health nurse also pointed to the x-ray findings which suggest chronic pre-existing osteoarthritic changes, including narrowing of the medial compartment, and state that this evidence should be preferred to the worker's comments to her sports medicine doctor where she denied prior right knee pain. As well, the worker had a valgus knee condition which is commonly caused by osteoarthritis, which would have preceded the workplace incident.

In response to questions from the panel, the worker stated that she "can't disagree" with the employer's comments regarding her knee condition before January 6, and may have limped on occasion prior to the date of accident.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after January 13, 2015 and wage loss after January 23, 2015 were related to the injury she sustained in the workplace accident of January 6, 2015. We are unable to make that finding for the reasons that follow.

The panel carefully canvassed the worker's general job duties with the employer as well as the mechanism of injury on January 6, 2015, and her symptoms and activities in the days and weeks following her workplace injury. The panel finds that the description of the injury, hitting the lower front part of the knee on a concrete step while stumbling forward is certainly consistent with the contusion diagnosis that had been provided soon after the incident. The panel notes that the normal course of recovery for a contusion is short term, and the worker did return to full time regular duties without restrictions on January 13, 2015, one week after the fall at work. In the panel's view, the worker had experienced full recovery from the contusion injury as of this date.

The panel then addressed whether the worker's ongoing medical issues were related to the January 6, 2015 workplace injury, such that the worker would be entitled to further benefits. While a number of diagnoses had been proposed by the worker's sports medicine physician on February 14, 2015, including patellofemoral syndrome, medial meniscus tearing and aggravation of osteoarthritis, the worker's focus during the appeal was on the medial meniscus tear which was later identified on a June 7, 2015 MRI and in an operative report dated August 13, 2015.

After consideration of the evidence and submissions provided at the hearing and on file, we have concluded on a balance of probabilities that the workplace incident was restricted to a contusion which had resolved, and that the other ongoing medical conditions are not related to the workplace injury, based on the following considerations:

• The worker was able to complete her job duties for the two hours remaining in her shift, and later returned to work on January 13. After that date, the worker was able to return to work for about another 10 shifts before leaving work as of January 26, 2015. In that period of time, she performed substantially all of her regular job duties as part of a team and did not express any concerns to her employers about her taking on her regular duties. These job duties, as canvassed by the panel during the hearing, involved extensive physical contact and interaction with a challenging clientele in a dynamic environment. This suggests to the panel that the workplace injury was relatively minor, in the sense that there were no symptoms of significant internal derangement of the knee evident or triggered by her work duties during that period of time.

• The evidence does not suggest a meniscal tear at the time of the January 6 injury. The worker was examined by her physician later that day and there were no findings at that time suggestive of a meniscal tear. As well, in the weeks following, the worker did not report symptoms typically associated with a medial meniscus tear such as clicking, locking or give way of the knee, or difficulties with stairs. While the worker advisor suggests that soft tissue swelling and limping are symptoms of a medial meniscus tear, this is not consistent with the panel's general knowledge regarding meniscal tears. • As well, the mechanism of injury described by the worker of a fall forward and contact with the bottom and medial side of the knee does not suggest a twist or a twist with load, which are features more commonly associated with a medial meniscus tear.

• The panel further notes that the worker advisor referenced "peer reviewed literature" as supporting their position that radial tears of the meniscus are traumatic in nature. This literature was not, however, provided to the panel. In any event, this proposed traumatic etiology is not supported by either the MRI findings or the operative report, both of which specifically reference degenerative, rather than traumatic, findings regarding the medial meniscus. In this regard, the panel notes that the June 7, 2015 MRI indicates "In the body of the medial meniscus there is degenerative radial tearing." The MRI finding is confirmed in the operative report of August 13, 2015 which states that the indication for procedure was "complex degenerative medial meniscus tear" as well as significant lateral tibial chondromalacia. The surgery notes indicate that "The medial compartment showed degenerative tearing in the posterior half of the medial meniscus and this was debrided, leaving about half of the medial meniscus in place. There was slight chondromalacia on each side of the joint." 

  • While the worker advisor asked the panel to place greater weight on the August 21, 2015 opinion of the worker's treating sports medicine specialist, the panel is unable to do so. The panel notes that the specialist relies on the worker's history that her knee was completely asymptomatic prior to the fall at work and a continuity of symptoms that had not resolved since that point, and is the basis of his opinion that there was an aggravation and probably an enhancement of the worker's meniscal pathology in her fall at work. This history, however, is not consistent with our earlier findings that there were no symptoms or findings or concerns regarding a medial meniscus pathology in the days and weeks immediately following the January 6 fall at work. The worker also acknowledged at the hearing that she may have been limping prior to the workplace fall. The panel finds that the evidence does not support an aggravation or enhancement of the worker's degenerative medial meniscus tear.

The panel therefore finds, on a balance of probabilities, that the worker's ongoing right knee difficulties are not related to her January 6, 2015 workplace accident. The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 11th day of January, 2017