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 23, 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 September 9, 2016 for a right knee injury that occurred on July 27, 2016. The worker reported that he hyperextended his right knee when he was reaching into the bottom of a box. He did not feel anything at the time, but towards the end of the day, his right knee started to hurt and he was limping. When he went to work the next day, he felt a dull ache in his knee. It didn't really hurt, but it prevented him from walking normally. As his knee pain got progressively worse, he attended a walk-in clinic on August 17, 2016. The worker indicated that he reported his knee difficulties to the employer's staffing person on August 29, 2016.

The Employer's Accident Report dated September 12, 2016, indicated that the worker was terminated from his job placement on August 23, 2016. The employer spoke to the worker after his termination, and at no time did the worker disclose a work-related injury.

On September 20, 2016, a WCB adjudicator gathered information from the worker regarding the job duties he performed on July 27, the nature of his ongoing right knee symptoms, the medical treatment he received, and his reporting of an injury to his employer/co-workers.

In a decision dated September 21, 2016, the WCB advised the worker that "Based on a suspect mechanism of injury, the delay in reporting the injury, and the significant delay in seeking medical attention, the WCB is unable to accept any responsibility for this claim, including time loss and medical treatment." On October 5, 2016, the worker appealed the decision to Review Office.

On November 22, 2016, Review Office determined that the claim was not acceptable. Review Office stated that it found no evidence close in time that supported an acute injury occurred on July 27, as suggested by the worker. Review Office indicated that the worker's description of the incident on July 27 was somewhat vague, and the mechanism of injury was considered unlikely to result in a medial meniscal tear. The worker was able to carry out his job duties without complaint until he was let go on August 23. Prior to August 27, the worker did not mention a workplace cause for his right knee difficulties to any party, including the doctor he saw on August 17. Review Office said it was unable to substantiate an injury occurred in the workplace on July 27.

On December 7, 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

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

(a) a wilful 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 the 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating claims and administering benefits. The Policy states 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 self-represented. The worker made a presentation and responded to questions from the panel relating to his job duties, the mechanism of injury, his symptoms and treatment, and previous injuries.

The worker's position was that his claim had not been properly understood, and should have been accepted. The worker said that he had right knee surgery more than 25 years ago, but had not had any problems with his knee after that. He injured his right knee at work in the last week of July 2016, when he was performing a task which involved using a pallet jack to push and pull a large box of product into position to unpack it, reaching into the box to pick up and place the product into smaller boxes on a pallet, then pushing and pulling the pallet into another room. His knee was sore when he went home, but he did not think it was serious and went back to work the next day. He did not tell anyone that he had been injured because he liked his job and felt he would have been fired immediately if he reported having been injured.

The worker said that the swelling increased over the next couple of weeks. When he did the same task on August 12, his knee really hurt, so he assumed that this was what caused his injury. He saw a doctor on August 17, who said he did not know whether the injury was work-related, so the worker still assumed it was minor. On August 23, his knee was worse and he was limping badly. He continued working, but at the end of the day his boss told him he had been fired because he was moving too slowly. On August 27, he saw a sports medicine physician who had an x-ray taken and told him he had a meniscal tear, and that it could have happened when he was doing this particular task. This was the first time he actually knew he had a serious injury, and he reported the injury to the employer as soon as he was told by a doctor that it was serious.

The worker described subsequent treatment he had received, including an MRI. He also saw an orthopedic surgeon on January 31, 2017. The worker referred to a January 31, 2017 letter from the orthopedic surgeon which the worker had submitted in advance of the hearing, and in which the orthopedic surgeon stated that it was "plausible that the heavy pallet jack work stirred up the inflammation in the knee that he is now experiencing."

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment on July 27, 2016. For the reasons that follow, the panel is unable to make that finding.

The panel finds that there is no evidence that an acute injury or accident occurred on July 27, 2016. In his Worker Incident Report filed September 9, 2016, the worker indicated that he did not report the incident to the employer until August 29, 2016, and that the reason for the delay in reporting was that "I didn't know that I was injured." At the hearing, the worker said that "sometime during that week is when I did something to my knee to make it inflamed" and that he "assumed" the work he was doing at that time caused his injury because his knee hurt when he was doing the same task a little more than two weeks later.

The panel further notes that there is nothing in the medical evidence which points to an acute injury or anything other than degenerative conditions in the worker's knee. The sports medicine physician on August 27, 2016 diagnosed mild osteoarthritis and a possible meniscal tear. Subsequent medical evidence indicated that there was no tear. The January 31, 2017 report from the orthopedic surgeon stated that:

X-rays done…on August 27, 2016 showed slight medial degeneration and slight patellar degeneration with diffuse chondrocalcinosis. MRI done…on November 23, 2016 showed some chondromalacia and chondrocalcinosis and evidence of previous medial meniscus surgery.

The worker confirmed at the hearing that he had been advised by his doctor that the MRI had shown that there was no tear.

While the evidence does indicate that the worker experienced symptoms of right knee pain and swelling in July and August, 2016, the panel is unable to relate those symptoms or the worker's right knee difficulties to a work activity or task that he was performing at that time. The panel acknowledges that the worker's knee was hurting while he was performing duties at work, but is unable to find that the worker hurt his knee at work. In other words, the worker was symptomatic at work, but not from his work.

The panel also considered whether the worker suffered an aggravation or enhancement of a pre-existing condition. The worker had a previous injury to his right knee, which he said had resolved with surgery in the late 1980s. The evidence also showed that he had degenerative conditions. Based on our review of the evidence, and for the above reasons, the panel is unable to find, on a balance of probabilities, that the tasks which the worker was performing on July 27, 2016 resulted in an aggravation or enhancement of these conditions.

The worker relied on the orthopedic surgeon's statement in his January 31, 2017 letter that it was "plausible" that the heavy pallet jack work stirred up the inflammation in the knee which the worker was experiencing. The panel is unable to attach any weight to that statement. The panel notes that the orthopedic surgeon did not provide an exact or specific diagnosis of the worker's "problem", and that his comment was based on the worker having related that his right knee "pain started after pushing heavy pallet jacks", which is not consistent with the worker's earlier evidence.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment on July 27, 2016. The claim is therefore not acceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 21st day of June, 2017