The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") which determined that the secondary accident to his right knee was not a consequence of his original compensable injury and that he was not entitled to further benefits.  A hearing was held on November 22, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's secondary accident of September 6, 2012 should be accepted as a consequence of the March 4, 2012 compensable injury; and

Whether or not the worker is entitled to further benefits.

Decision

That the worker's secondary accident of September 6, 2012 should not be accepted as a consequence of the March 4, 2012 compensable injury; and

That the worker is entitled to further benefits to September 28, 2012.

Background

The worker filed a claim with the WCB for a right knee injury that occurred at work on March 4, 2012 when he slipped on hydraulic fluid. On March 21, 2012, the worker sought medical treatment for his right knee and was diagnosed with a possible medial cartilage tear.

Following an investigation into the claim, the WCB accepted that the worker suffered an injury to his right knee on March 4, 2012, but was unable to accept responsibility for wage loss or medical treatment costs. The decision was overturned by Review Office on June 20, 2012, and the worker was provided with WCB benefits and services related to his right knee complaints.

On July 16, 2012, the worker underwent a right knee MRI which revealed "high grade chondral wear at the patella with reactive subchondral edema."

On August 9, 2012, a WCB medical advisor stated that the diagnosis related to the workplace accident was a right knee strain. The medical advisor commented that the degenerative changes in the worker's knee were prolonging recovery from the compensable injury. Workplace restrictions were outlined to limit ladder and stair climbing, as well as to limit squatting.

On September 6, 2012, the worker advised the WCB that he had significant pain in his right knee after he stumbled while going up a flight of stairs carrying his baby.

In a progress report dated September 20, 2012, the treating physician noted that the worker was going up some stairs three weeks earlier and his right knee buckled. The worker's right knee had restricted range of motion on flexion, his cruciates were tight and the collaterals intact. McMurray's test was positive. The physician noted that the worker's right knee was getting progressively sore through the work shift and he could only manage four hours per day.

On September 28, 2012, the WCB medical advisor opined that the worker's current presentation and ongoing knee difficulties were more likely related to the described second injury that occurred at home than the March 4, 2012 workplace accident. The medical advisor was further of the view that the restrictions and decreased work hours were the result of the injury at home, and there was no aggravation or enhancement of the pre-existing condition.

On October 4, 2012, the worker was advised by letter that in the WCB's opinion, he had recovered from his workplace injury and there was no further loss of earning capacity.

On December 2, 2013, a union legal counsel provided the WCB with a report from the treating physician to support that the worker's right knee injury of September 6, 2012 was directly attributable to the March 12, 2012 workplace event.

On December 5, 2013, the WCB medical advisor reviewed the new information and stated:

The worker had a right knee strain on the day of the workplace accident. Typical recovery from a strain is expected over a period of 8 - 12 weeks. As the time elapsed to recover from a right knee strain would predate the September 6, 2013 (sic) second injury at home; while [worker] was carrying his child. On the balance of probabilities the worker would have recovered from the workplace accident when the 12 weeks have elapsed. It is unlikely that the effects of the workplace accident on March 4, 2013 (sic) would contribute in any material manner to the second injury at home on September 6, 2013 (sic). The start of physiotherapy would have no relevance six months from the workplace accident. As such my prior opinion remains unchanged.

On December 5, 2013, the worker was advised that the case manager had reconsidered the claim and submission by the union and no change would be made to the decision dated October 4, 2012.

On September 2, 2014, the union's legal counsel provided the WCB with a report from the treating physician dated July 14, 2014, to support that the September 6, 2012 injury was related and attributable to the March 12, 2012 injury. Following consultation with the WCB's healthcare branch, the worker was advised on September 8, 2014 that no change would be made to the decision outlined on October 4, 2012. On June 24, 2015, the union representative appealed the decision to Review Office.

On August 25, 2015, Review Office determined that no responsibility would be accepted for the subsequent injury that occurred on September 6, 2012 and there was no further entitlement to benefits. Review Office referred to specific file evidence to support that the worker's March 4, 2012 compensable injury resulted in a right knee strain, and the compensable injury did not structurally change the worker's pre-existing knee condition.

Review Office recognized that the worker experienced a new injury to the same knee as the compensable injury, but found that the cause of the further injury was not predominantly attributable to the compensable injury. Review Office found that the evidence demonstrated a resolving strain to the right knee prior to the September 6, 2012 incident. It was determined that the worker's fall on September 6, 2012 was the result of stumbling while going up stairs carrying his baby. On July 21, 2016, the legal counsel 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 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was represented at the hearing by legal counsel for the union, who made a submission on the worker's behalf. The worker answered questions from his legal counsel and the panel.

The worker's position was that the injury he suffered at home on September 6, 2012 was a result of the compensable injury he sustained in the workplace on March 4, 2012, and his losses attributable to that injury should be covered by the WCB.

Counsel submitted that at the time of the September 6 incident, the worker had not fully recovered from his original right knee injury. He was still in pain. Physiotherapy had just been authorized and he had been to one session only. He continued to favour his right leg, and on September 6, his knee gave way when he was going up the stairs carrying his baby.

It was submitted that the September 6 injury fits within the Further Injuries Policy, as an aggravation of the original injury. The injury on September 6 was to the same knee, and the worker felt the same pain in the same place, although it hurt even worse.

Counsel noted that the worker's physician had clearly stated that the March 4 and September 6, 2012 injuries were related. Counsel submitted that the second injury would not have happened if the first one had not occurred.

It was submitted that the timing of the physiotherapy treatments was important. The WCB medical advisor said that typically recovery from a strain would be expected in eight to twelve weeks. According to that, the worker should have recovered from his March 4 injury by the beginning of June 2012 at the latest. Yet in mid-August 2012, more than nine weeks after the injury would supposedly have resolved, the same medical advisor approved 15 physiotherapy sessions for the worker. The medical advisor thus recognized that the original injury had not resolved within the eight to twelve week period, as he approved physiotherapy long after the healing process was supposedly completed.

The worker continued with his physiotherapy sessions until late November 2012, and as a result of the September 6 injury, his physician placed him on reduced work hours, working four hours per shift on light duties. As the WCB did not accept his September 6, 2012 injury, he had to use his banked sick time for the other four hours of each shift, which he did for over two months. It was noted that the worker had no problems with his right knee prior to the March 4 accident, nor any problems with that knee in the more than four years since he finished his physiotherapy treatments and returned to his regular hours of work.

In conclusion, it was submitted that the original injury caused or significantly contributed to the worker's right knee giving way and his suffering further injury on that date. It was submitted that the subsequent injury thus fell within the Further Injuries Policy, and the worker should be covered for the sick time he had to use while working reduced hours.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker's secondary accident of September 6, 2012 should be accepted as a consequence of the March 4, 2012 compensable injury.

For the appeal on this issue to be accepted, the panel must find that the worker's secondary injury was causally related to the March 4, 2012 compensable injury and qualifies as a "further injury" under one of the three tests set out in the Further Injuries Policy. The test which would apply in this instance would be the one found in paragraph (i) of the Policy, namely, whether the cause of the further injury is predominantly attributable to the compensable injury. The panel must therefore find, on a balance of probabilities, that the cause of the worker's accident and injury on September 6, 2012 was predominantly attributable to the March 4, 2012 compensable injury. The panel is unable to make that finding.

The worker has an accepted claim for a right knee strain as a result of his March 4, 2012 workplace accident.

Information on file shows that the worker continued working his full regular hours prior to September 6, 2012, he was working outside his restrictions and his right knee was sore.

The worker was assessed by the treating physiotherapist on September 8, 2012. The panel notes that in spite of the fact that this is just two days after the September 6 incident, there is no mention in the physiotherapist's report of an incident having occurred on September 6. With reference to the worker's description of the incident or injury, the report states only that the worker "slipped on fluid leak from forklift - R leg slid out to side" and the worker's reported complaints were "constant ache R knee, sore to walk, drive." No new diagnosis or change in injury was reported.

The panel notes that the administrative guidelines to the Further Injuries Policy read, in part, as follows:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g., unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident…

Having carefully reviewed the medical and other information on file and the submissions at the hearing, the panel is unable to find any indication that the worker's right knee was unstable at or prior to the time of the September 6 incident. We further note that in the September 8, 2012 report, it was recorded that the worker had a strength rating of 4/5 for his quadriceps.

Based on the foregoing, and on the balance of probabilities, the panel finds that the worker's stumble while going up the stairs and consequent injury was not causally related to, or predominantly attributable to, the worker's March 4, 2012 right knee injury. The panel finds that the worker's secondary accident of September 6, 2012 should not be accepted as a consequence of the March 4, 2012 compensable injury.

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 19th day of January, 2017