The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on May 10, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on January 2, 2014 for injury to both knees that he related to the repetitive nature of his job duties which involved walking, getting up and down off cars and picking up equipment. The worker reported that he does this every day from Monday to Friday, eight hours per day. He has been with his employer for 30 years. The accident date was recorded as being December 13, 2013.

The Employer's Accident Report dated January 6, 2014 indicated that there was no work-related incident. The worker advised that he was taking four days off as he was tired and his knees were bothering him. The worker denied any work injury but stated that his physiotherapist told him to file a WCB claim.

The WCB contacted the worker on February 14, 2014 to discuss his claim. The worker advised that he has worked in the yard for 15 to 16 years. He walks on uneven ground, and through snow with heavy boots and clothes. He crawls up and down ladders on cars. The worker indicated that he noticed a bit of pain last winter and more so this winter. He did not notice any knee pain during the summer of 2013. The worker said he noticed pain on the front part of both knees.

In a Doctor First Report for an examination on October 26, 2013, the treating physician noted that the worker had knee pain/no definite history of trauma. The worker had tenderness over the knee, good range of movement and no neurological deficits. The treating physician provided the WCB with his chart notes between October 26, 2013 and January 6, 2014.

In December 2013, the worker was seen by a physiotherapist and was diagnosed with patellofemoral syndrome in both knees, left worse than right.

On December 7, 2013, the worker was seen at an outpatient and emergency facility and was diagnosed with minor osteoarthritis.

In a decision dated April 2, 2014, Compensation Services advised the worker that his claim for compensation was not acceptable as it felt that this bilateral knee pain was related to degenerative changes and not to his workplace duties.

On October 23, 2014, the worker underwent an MRI assessment which identified a left knee radial tear of the medial meniscus and medial compartment osteoarthritis.

Following consultation with a WCB sports medicine consultant on November 7, 2014, Compensation Services wrote the worker to advise that the new medical information did not alter the decision that was made on April 2, 2014.

On October 27, 2016, the worker's advocate wrote Review Office with the position that the worker's radial meniscus tear was a compensable injury and that the worker was entitled to lost wages and medical aid expenses. The advocate noted that a WCB healthcare advisor opined that the worker had pre-existing degenerative changes. This condition would then be considered a pre-condition and the added stress to the knees of trudging through deep snow, walking on crushed rock and uneven ground, climbing rail car ladders day in and out caused the radial tear of the medial meniscus.

On December 28, 2016, Review Office determined that the worker's claim was not acceptable as it did not find evidence to support the worker's position that his medial meniscal tear in his left knee was the result of a workplace injury.

Review Office referred to the medical reports on file and noted that the worker sought medical treatment for his knees on October 26, 2013 even though he reported no history of trauma on December 13, 2013. Review Office noted that the medical chart notes recorded no knee trauma and that it accepted the WCB medical opinion outlined on November 7, 2014 which stated:

A radial tear is a description of the orientation of the tear in the medial meniscus. This may or may not be related to degenerative changes. This finding in isolation on MRI without clinical correlate would not be considered diagnostic or indicative of a certain mechanism of injury.

On January 4, 2017, the worker's worker advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

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:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

"accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any    

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured; The worker is appealing the WCB Review Office decision that his claim is not acceptable.

Worker's Position

The worker was represented by an advocate. The worker answered questions from the panel.

The worker's representative submitted the WCB Review Office erred in its decision of December 28, 2016 not to accept responsibility for the worker's knee injury and that the decision should be overturned on the basis of pre-existing conditions (WCB Policy 44.10.20.10).

The worker's representative submitted that the worker suffered from cumulative on-the-job injuries due to the nature of his job, and especially in the winter months. She noted that the worker was employed by the employer for over 30 years, with the last 15-plus years as a yard laborer in various locations. She said this work requires:

…walking on uneven surfaces, as well as climbing up and down ladders while shunting and moving cars around the yard, while carrying tools and heavy communication radios. In the winter months, they wear heavier winter safety boots, as well as heavier winter clothing, and at times work in deep snow along the track. [The worker's] foreman… confirmed that trudging through heavy snow places extreme pressures on the knees.

She referred to a February 7, 2011 note from a physiotherapist that refers to the worker suffering from knee pain caused by overshoes. She also referred to an online source that indicates patellofemoral pain syndrome is a pain in the front of the knee, and frequently occurs in manual labourers. Sometimes it is caused by wearing down, roughening or softening of the cartilage under the kneecap.

The worker's representative submitted that:

Cause is overuse. In many cases, patellofemoral pain syndrome is caused by vigorous physical activities that put repeated stress on the knee, such as jogging, squatting and climbing stairs. It can also be caused by a sudden change in physical activities. As well, patellofemoral pain syndrome may be caused by injury, excess weight, a kneecap that is not properly aligned, which is a patellar tracking disorder, or changes under the kneecap. The main symptom of patellofemoral pain syndrome is knee pain, especially when you are sitting with bent knees, squatting, jumping or using stairs, especially going down the stairs.

The worker's representative stated that the worker's occupation and work environment have placed extreme wear and tear on his knees. She said that while the worker may have had pre-existing conditions, the pre-existing condition may have been from previous injuries and was enhanced by the injury of December 2013.

She noted that WCB policy states that if it is caused by some hazard that results from the nature, condition or obligations of employment, then the injury would have been deemed out of the course of employment. She submitted that the worker's injury was a result of working for years in the yard, walking on uneven ground, climbing up and down ladders, especially in winter, wearing heavy winter work boots and trudging through snow.

The worker's representative disagreed with the WCB sports medicine consultant's opinion that a radial tear is a description of orientation of the tear in the medial meniscus and may or may not be related to degenerative changes.

The worker's representative also told the panel that there was a specific incident which contributed to the injury:

it was determined that he twisted in December 2013 when a train passed him on the tracks. This may have been the cause of the tear as his feet stayed in place, however, his knees moved, which may have caused the tear.

In answer to questions from the panel, the worker provided information on the injury that is alleged to have occurred at work in December 2013. He said that looking back this must have been when he tore his meniscus. The worker stated:

I was sore, like, my kneecap was so sore, I didn’t realize, but one knee was sorer than the other, and I just, I didn’t realize I had two injuries, the same knee at the same time. It was, the doctor and a therapist both missed it, because, well, he just didn’t know.

The worker brought in the over boots that he wore in winter and which he feels contributed to his injury.

The worker said that he went to a physiotherapist in December 2013 because of pain in both knees, although one knee was worse than the other. He did not recall any discussion of the knees clicking.

The worker advised that he has seen an orthopedic specialist and that he had two MRIs for his left knee. The orthopedic specialist did not examine the worker's right knee. The worker said that he has a torn left meniscus. He said the orthopedic specialist told him that he did not need surgery at this time.

Regarding the incident where the train passed and the worker hurt his left knee, the worker explained the circumstances around this incident. He said that:

Well, I didn’t realize at the time, so, that I must have torn my, that’s when I must have torn my meniscus.

The worker confirmed that the pain began in both knees at the same time in 2011.

In closing, the worker's representative submitted that the worker's troubles did start in 2011 when he had to start wearing the overshoes on his work boots, and creating the knee pain. This had continued over each winter, or would subside over the summer a little bit, and then in the winter when the boots went on again, it would increase.

Employer's Position

The employer was represented by its WCB Specialist. The employer's Disability Management Specialist was also in attendance.

The employer's representative noted that:

When this claim was initially started, it was started with the physiotherapist’s report. When [worker] was questioned back at the time of October 2013, he did not think in any way that his work duties were attributable to his injury whatsoever. [Employer] does not dispute [worker's] time in service or the physical nature of his job. However, there’s been absolutely no history of trauma.

In regards to the new evidence from the worker's representative that the worker had a specific twisting injury, she noted that there is no evidence of this on the file. She said that the medical indicates no history of trauma, and bilateral knee osteoarthritis, which is not work-related and is non-compensable. She also noted that in October 2013, the worker had good range of motion with no neurological defects.

Analysis

The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment or that the worker's employment aggravated his pre-existing condition. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, the worker's claim is not acceptable. The panel is not able to relate the original diagnosis of bilateral patellofemoral syndrome or the most recent diagnosis of osteoarthritic changes in the left knee to the worker's workplace duties. The panel also finds that the evidence does not support the worker's representative's suggestion that the workplace duties aggravated a pre-existing condition.

In making this decision, the panel relies upon:

• Worker Report of Injury which indicates "this is from repetitive use of my knees" and does not disclose trauma or a specific incident.

• October 23, 2014 MRI report which indicates "radial tear of medial meniscus and medial compartment osteoarthritis."

• The opinion of the WCB physiotherapy advisor that "The MRI findings are supportive of pre-existing degenerative changes rather than a work injury."

• MRI report of February 7, 2017 for the left knee which indicates "Multicompartment OA changes with chondromalacia at the medial compartment end reactive bony changes at the medial tibial plateau."

• the worker's insistence, until the hearing, that the injury was caused by his work duties and not by an acute event.

The panel notes that the worker was off work for a significant period and that his knee condition appeared to have worsened. This supports a finding that the condition is not related to the worker's employment.

Regarding the acute incident of December 2013, which the worker first described at the hearing, the panel does not attach any weight to this evidence. The file was opened in 2013 and no reference was made to an acute incident involving the left knee until the hearing in May 2017.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc
A. Scramstad

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of June, 2017