The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current right knee difficulties are not related to the accident of April 12, 2012. A hearing was held on September 14, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right knee difficulties as being a consequence of the April 12, 2012 accident.

Decision

That responsibility should not be accepted for the worker's right knee difficulties as being a consequence of the April 12, 2012 accident.

Background

On April 12, 2012, the worker reported that she wrenched her back and right shoulder when she slipped on hydraulic oil that was underneath a stretcher during the course of her employment as a registered nurse. On April 18, 2012, the worker sought medical attention and was diagnosed with a soft tissue injury and a strain to her neck and back and was referred to a physiotherapist. When seen for an initial assessment by a physiotherapist, the worker complained of right low back pain that radiated to the back of her right knee on occasion and constant headaches.

The claim for compensation was accepted by the WCB and benefits were paid to the worker while she underwent treatment for her neck and back complaints. In October 2012, the worker returned to her regular work duties as a registered nurse.

On May 5, 2015, the worker advised the WCB that she was currently having right knee difficulties that she related to the work-related accident of April 18, 2012. The worker stated:

She was seeing doctor [name] at the pain clinic for her back and mention (sic) her r knee pain to him and he told her she probably injured it when she slipped but felt not (sic) symptoms because she was off work and when she rtw (returned to work) and began pushing stretchers again it began to bother her.

The worker said the pain clinic physician referred her to another specialist who she saw on June 16, 2013. She had x-rays taken of her knee and was prescribed medication. Over the last few weeks, her right knee started to give out and it clicked more often. Her right knee buckled at work on April 21, 2014 when she was going into a room and it gave out again on April 26 when she fell against a boat trailer that was in her back yard.

In a decision dated June 24, 2015, the worker was advised that based on a review of all the file information, there was no medical evidence to support that the pain symptoms in her right knee were related to the workplace accident of April 12, 2012. The adjudicator's decision was based on the findings that there was no mention of a right knee injury in the medical reports on file between the date of accident and September 12, 2012; the opinion on file by a WCB medical advisor dated October 5, 2012 which stated, in part, that the mechanism of injury most likely resulted in strains to the neck, mid, and low back; and an x-ray received on June 1, 2015 which showed osteoarthritis (OA) in her right knee.

On August 16, 2015, the worker appealed the June 24, 2015 decision to Review Office. As the worker's submission contained medical evidence that was not considered by initial adjudication, Review Office referred the case back to Compensation Services to consider the evidence and render a new decision.

On November 11, 2015, a WCB medical advisor reviewed the file evidence and stated:

The medical documentation on file at the time of the injury supports that there were no complaints of knee issues and no knee findings provided, so there is no evidence that the knee was directly injured at the time of the workplace accident of April 2012.

The worker has since submitted notes from a sports medicine doctor's assessments of October 17, 2012, November 21, 2012, and March 31, 2015. These document knee symptoms of insidious onset, opined to be related to knee OA.

It is possible for a slip injury to cause an irritation of an underlying knee OA. This would be indistinguishable from any other exacerbation of knee OA (from other minor trauma or just from the natural history of OA causing recurrent episodes of symptoms). The distinguishing factor would be the timing of the irritation. If the workplace injury exacerbated the OA, it would be expected that there would be clinical effects within a day or two. None was documented here for 6 months, supporting that the cause of the knee OA symptoms was not the workplace accident.

There is documentation of an injury on April 26, 2015 when she fell. The O/S was querying a quad rupture and/or lateral meniscus tear. Any damage caused by that injury would be related to that accident and not the workplace accident 3 years earlier.

The worker was then noted to fall again in September 2015 and may have sustained a tibial plateau fracture. Any effects from that accident would not be related to the C/I of April 2012.

This claim was accepted as a back strain type injury from April 2012. There would be no clinical effects from that which would have lead to the accidents (falling) in April and September 2015...Since the presentation with regards to the knee cannot be medically accounted for in relation to the C/I, it is not for WCB to provide treatment or work ability recommendations.

Based on the WCB medical opinion dated November 11, 2015, it was confirmed by the WCB on December 11, 2015 that the worker's right knee complaints were not related to the workplace accident of April 12, 2012.

On July 4, 2016, the worker's union representative appealed the December 11, 2015 decision to Review Office. On August 24, 2016, the employer's representative submitted to Review Office that the evidence on file did not validate a relationship between the worker's right knee condition and the April 12, 2012 back injury.

On September 15, 2016, Review Office confirmed that the worker's right knee difficulties were not compensable.

Review Office referred to various medical reports on file from the worker's treating physicians, x-ray and MRI results as well as WCB medical opinions. Review Office concluded that the evidence on file at close proximity to the workplace accident supported that there were no complaints of right knee difficulties or clinical findings to support a right knee injury was present. Review Office agreed with the WCB medical opinion that the worker had degenerative changes in her knee and there was no indication of an acute structural abnormality that could be medically accounted for in relation to the workplace accident. Regarding the right knee injury sustained in April and September 2015, Review Office noted that the worker's claim was accepted for strain type injuries that resolved and said there were no clinical effects from the compensable injuries that would have led to these further accidents three years later.

On February 28, 2017, the worker 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 WCB 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.

The worker has an accepted claim for an injury that occurred on April 12, 2012. The worker is appealing the WCB decision that her right knee difficulties are not a consequence of the April 12, 2012 accident.

Worker's Position

The worker was self-represented. She explained her reasons for appealing the WCB decision and answered questions from the panel.

The worker described the accident which occurred when she was moving a stretcher in a crowded hospital room. She advised that she slipped, twice, on a pool of oil which had leaked from defective stretchers. She said that she did not fall but strained her back. She attributes her current knee difficulties to the twisting that occurred in this accident.

The worker expressed concern with issues around her claim and her return to work generally. She feels that her injury was due to a lack of proper equipment and shortage of support staff. She advised that she provided the name and contact information for a witness but the WCB never contacted the witness. Regarding the medical information on her claim file, she expressed concern that the WCB medical advisor provided opinions about her condition without examining her.

The worker advised that she has osteoarthritis in both legs, but that her left leg is not symptomatic. She feels her right leg symptoms are from the strain she felt in the April 12, 2012 accident.

She noted that the pain clinic physician, who she was seeing for another medical matter, opined that she injured her knee in the April 2012 incident.

The worker advised that since the accident she has had significant issues with her knee resulting in a knee replacement in 2016.

Employer's Position

The employer was represented by an employer advocate and its WCB Coordinator. The employer representative advised that the employer agrees with the Review Office decision.

The employer's representative noted:

• the worker did not report a knee injury when she reported the accident 

• there were no references to knee difficulties in initial medical reports 

• the worker returned work to regular duties on October 2, 2012 

• on October 30, 2012 a physiatrist who was treating the worker for another condition, noted the worker had "swelling and pain affecting her knee." The physiatrist attributed this to moving heavy stretchers 

• it was not until 3 years after the accident that the worker first related her knee condition to the accident 

• an x-ray taken on May 8, 2014 showed significant osteoarthritis and chondrocalcinosis 

• osteoarthritis is a degenerative, age-related condition, not caused by work 

• on April 26, 2015, the worker fell at home, as her knee had been buckling for the last couple weeks.

The employer representative submitted that the worker's right knee difficulties are not related to her April 2012 workplace accident.

Analysis

The worker appealed the WCB decision that her right knee difficulties are not causally related to the performance of her work duties.

The worker attributed the cause of her right knee difficulties to an April 2012 incident in the workplace. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker injured her right knee at work on April 12, 2012. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's right knee difficulties are not causally related to the performance of her work duties.

The evidence at the time of the injury and shortly thereafter does not indicate any injury to the right knee. The worker did not report a right knee injury until months after the injury. There were no immediate symptoms and no continuity of complaints after the injury. It was not until 3 years later that she attributed her right knee condition to the April 2012 accident. The panel finds that the lack of immediate symptoms and lack of continuity of symptoms is inconsistent with an injury having occurred on that date.

The panel notes and attaches weight to the opinion of the WCB medical advisor who reviewed the file and provided an opinion on November 11, 2015. The medical advisor opined that had the injury aggravated the worker's osteoarthritis, there would have been a clinical effect within a day or two. Nothing was documented for 6 months, accordingly she concluded that the right knee osteoarthritis symptoms were not related to the workplace accident.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 29th day of September, 2017