Decision #146/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after May 14, 2015 in relation to his left knee injury of May 5, 2015. The worker is also appealing the WCB decision that he did not suffer an injury arising out of or in the course of his employment in May or June 2016. A hearing was held on August 2, 2017 to consider the worker's appeals.

Issue

Accident Date: May 5, 2015:

Whether or not the worker is entitled to wage loss benefits after May 14, 2015; and

Accident Date: June 10, 2016:

Whether or not the claim is acceptable.

Decision

Accident Date: May 5, 2015:

That the worker is not entitled to wage loss benefits after May 14, 2015; and

Accident Date: June 10, 2016:

That the claim is not acceptable.

Background

Accident Date: May 5, 2015:

The worker filed a claim with the WCB for a left knee injury that occurred on May 5, 2015 while he was employed as an automotive technician. The worker described the accident as follows:

I was pulling down on a wheelnut with a bar. It was tight and when it broke free, the bar came down and hit my left knee. It came down with quite a force. It hurt. I kept working. The pain wasn't going away so I went to a doctor.

The Employer's Accident Report noted that the worker was working on a vehicle and was using a bar to pry a wheel off when the bar slipped and struck his leg. The May 5, 2015 accident was reported on May 7, 2015.

A doctor first report dated May 7, 2015 noted the same accident description as reported by the worker and the diagnosis outlined was a soft tissue injury to the left knee. In a progress report of May 14, 2015, the treating physician advised that the worker had less pain and swelling of his left knee, was capable of modified duties, and could return to his regular duties by May 19, 2015.

In a letter dated May 27, 2015, Compensation Services advised the worker that there was no evidence to support disability due to his left knee injury beyond May 14, 2015.

A medical report on file from a chiropractor showed that the worker sought treatment on June 27, 2015. The worker complained of sharp medial knee pain with swelling which increased his knee diameter by 50%. The diagnosis was acute traumatic medial knee trauma.

On July 8, 2015, the worker was contacted by the WCB regarding his chiropractic visit. The worker advised that he continued to have symptoms in his left knee after he returned to work and this prompted him to see a chiropractor.

On July 14, 2015, Compensation Services wrote the worker to advise that responsibility for chiropractic treatment was accepted for a maximum period of 6 weeks, or to August 7, 2015, inclusive.

In a chiropractor's progress report dated July 16, 2015, it was reported that range of motion in the worker's knee had improved since the last report, and the bruising and swelling had reduced significantly.

In a letter dated July 16, 2015, the treating chiropractor reported that an x-ray of the left knee taken June 29, 2015 did not indicate any form of fracture within the knee. Soft tissue inflammation was noted around the periosteum of the bone. The quality and quantity of bone was within normal limits for a 53 year-old male. There was no significant pre-existing degenerative joint disease evident on the x-ray.

In a progress report dated August 11, 2015, the treating chiropractor noted that the worker had occasional mild internal medial left knee pain. There was no sign of infection, no significant swelling, and strength was near normal. Deep bone bruise was expected to self-resolve within six months. The chiropractor noted that the worker was working full duties and that chiropractic treatment was complete.

Accident date: June 10, 2016:

On July 14, 2016, the worker filed a claim with the WCB for his left knee with the accident date of June 10, 2016. The worker reported:

I had a flare up of my left knee in May of 2016. I did not seek medical treatment as I thought it would get better and not worse. My knee swelled up but the pain was not too bad. The pain continued to get worse as I worked and as the pain got worse the swelling got worse. I still did not go for medical treatment. On June 13th I could not handle the pain anymore and decided I should quit my job, which I did do.

The worker reported that he first noticed symptoms at work and at home about two months earlier. He stated:

I first noticed my knee start swelling. I figured this was from all of the up and down bending I was doing at work. When I would get home I would ice my knee and elevate it to try and bring the swelling down. As the days went on my knee started to hurt and as I continued to do my job the swelling and the pain would get worse and worse. This continued until June 13th when I decided I had enough with the pain and I quit my job…

Since I have quit my job my knee seems to be a lot better.

The Employer's Accident Report dated July 4, 2016 stated:

He finished his job on June 10, 2016 and was fine that he was walking out, we were not aware that he had an injury on this date.

On Monday, June 13, 2016 [worker] came into the shop and voiced his displeased (sic) with working at our company and quit. There was nothing to my knowledge that he injured his knee, we have not been made aware that there was an injury on site here. I do know that he was favoring an old injury on his knee, but (sic) not aware of the specific injury. We are not aware of this incident. I am not saying he isn't hurting but he did not get injured at our workplace.

A chiropractor's first report showed that the worker sought treatment on June 24, 2016. The examination findings were irritated internal knee pain, with localized swelling and strength deficit. The diagnosis was unresolved left knee injury.

On June 30, 2016, the worker attended a physician with complaints of left knee pain, worse with bending and kneeling. The examination showed a mild limp on the left side, with no obvious swelling, redness or deformity of the left knee. Tenderness was noted on the medial side of the knee and range of motion was normal. Neurovascular status was intact. No diagnosis was outlined on the report. The physician indicated that the worker was capable of alternate or modified work with restrictions.

In a note to file dated July 5, 2016, the adjudicator said she spoke with the treating chiropractor who reported that the worker's injury seemed to have resolved in 2015 and he was sent back to work. No further treatment was sought after August 11, 2015. The chiropractor confirmed there was no new injury to the left knee, and that he felt this was related to the worker's prior accident in 2015.

On July 14, 2016, the worker advised the WCB that there was no new accident at work and that he had a sporadic onset of left knee symptoms around June 2016. The worker believed that the onset of his left knee symptoms was related to his prior injury.

On October 14, 2016, the worker was advised by Compensation Services that his claim for left knee difficulties was not acceptable as they were unable to establish a connection between his current left knee difficulties and his employment. The decision was based on the findings that the worker was discharged from chiropractic care related to his prior claim on August 11, 2015 and did not seek further medical treatment until June 24, 2016. There was no change to his job duties or new accident, and his employer was not aware of a workplace accident related to his left knee.

On January 25, 2017, the worker filed an appeal with Review Office regarding the May 27, 2015 and October 14, 2016 decisions. Included with his submission was additional information which included a left knee MRI report dated October 19, 2016. The MRI results showed a horizontal tear body and posterior horn medial meniscus with parameniscal cyst at the level of the anterior body.

In a decision dated February 17, 2017, Review Office determined that the worker was not entitled to wage loss benefits beyond May 14, 2015 in relation to his 2015 claim.

Review Office outlined concerns with the approval of chiropractic treatments on the file as the evidence did not support a relationship between what the worker sought treatment for on June 27, 2015 and his workplace accident of May 5, 2015. Review Office concluded that by June 27, 2015, the worker's left knee complaints were not related to his compensable accident of May 5, 2015, and by August 11, 2015, the worker's additional left knee problems had resolved and he was discharged from chiropractic care.

Review Office concluded that the degenerative changes noted on the October 19, 2016 MRI were not in keeping with a knee being struck, but did explain the worker's description of on-again and off-again knee pain. As the current left knee issues were not related to the May 5, 2015 compensable accident, the worker was not entitled to wage loss benefits for same.

Review Office also confirmed that the 2016 claim was not acceptable. Upon review of the evidence on both files, Review Office said it was clear that the worker has degenerative changes in his left knee that explain his current left knee complaints. The worker did not relate his knee pain to any aspect of his most recent job or to any specific event when the second episode of knee pain began in May 2016.

The employer confirmed that the worker did not report a new injury, he completed work on June 10, 2016, then officially quit on June 13, 2016. The employer confirmed they were aware the worker had ongoing left knee issues that pre-dated employment with them.

Review Office concluded that the evidence did not support that the worker suffered an injury in an event arising out of or in the course of his employment in May or June 2016.

On March 5, 2017, the worker appealed the decisions made by Review Office to the Appeal Commission and a hearing was held on August 2, 2017.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the worker's treating practitioners. The requested information was later received and was forwarded to the worker for comment. On September 8, 2017, the panel met further to discuss the case and render its final decision.

Reasons

Applicable Legislation

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.

"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.

Subsection 4(2) of the Act provides that 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 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.

Worker's Position

The worker was self-represented, and was accompanied by a family member at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that he suffered an injury to his left knee at work on May 5, 2015 which never fully healed. He went to a walk-in clinic on May 5, where the doctor did not really look at his knee, and just gave him a week off work. The worker went back to work after taking the week off, but his knee had not healed and he was in a lot of pain if he had to squat and kneel down. He said that he continued working for about a year after that, but that he was in pain the whole time.

The worker stated that his pain suddenly got worse in May 2016. He confirmed that there was no particular incident, and no sharp pain; his knee just suddenly started swelling again and the pain became much worse. He worked up until June 10, 2016, but his knee was so swollen and painful at that point that he could not do the work anymore and quit. After he quit, he saw his chiropractor and his doctor, who referred him for an MRI and he eventually had surgery on his knee on May 3, 2017. The worker said his surgeon told him he could go back to work on May 31, 2017. He said he has been looking for work, but has not worked since June 10, 2016.

The worker submitted that it took almost two years to correct and heal his knee, all because of hitting it with a bar at work. He said there was nothing wrong with his left knee prior to May 5, 2015, and the injury and everything else, including the surgery, were related to his smashing his knee with the bar. If the incident had never happened, there would have been nothing wrong with his left knee and it would be just as good as his right knee.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker is entitled to wage loss benefits after May 14, 2015 with respect to his May 5, 2015 accident claim.

For the worker's appeal on this issue to be successful, the panel must find that the worker sustained a loss of earning capacity after May 14, 2015 as a result of his May 5, 2015 left knee injury. The panel is unable to make that finding, for the reasons that follow.

The evidence shows that a work-related incident occurred on May 5, 2015, that the worker sought medical treatment that same day, was diagnosed with a soft tissue injury to the left knee, and was told to take a week off work. The panel accepts that the worker's time loss to May 14, 2015 was related to the workplace injury and was appropriate.

The panel is satisfied, however, that the medical reports on file do not support a time loss beyond May 14, 2015. In this regard, the panel places weight on the following:

• the May 14, 2015 report of the treating physician, who saw the worker for a follow-up examination on that date, and concluded that the worker was capable of modified or alternate duties, and that he could return to regular duties on May 19, 2015; 

• the first report from the treating chiropractor, dated June 27, 2015, where it was noted that the worker "initially missed one week of work, is responding well to care" and "is now working full duties"; 

• subsequent reports from the treating chiropractor, relating to examinations on July 17, July 24, July 31 and August 7, 2015, which indicated that the worker was continuing to work full duties; 

• the discharge report from the treating chiropractor dated August 11, 2015, where the only significant finding was that of a deep bone bruise which was "expected to self resolve within six months." The report went on to state that the worker was "working full duties. Treatment complete, please close case."

The panel notes that the worker's position, as confirmed at the hearing, was that his May 5, 2015 work-related injury never resolved, and the further pain and swelling he experienced in May or June 2016 was a continuation of his 2015 injury. Based on our review of all of the evidence before us, the panel is unable to relate the worker's 2016 left knee difficulties to the earlier injury.

The panel notes that the evidence shows that the worker continued working his same regular full-time duties at work from May 2015 to June 13, 2016. While the worker stated at the hearing that he was in pain the whole time he was working, the panel notes that there is no contemporaneous information on file to support this statement. The worker also said at the hearing that he would ice his knee when it was painful. In response to a question as to how often he would ice his knee between May 2015 and June 2016, he said that "For a while it was probably once a week but then it just, I didn't do it anymore."

The evidence which is before us also indicates that the worker did not seek any further medical treatment for his left knee between August 7, 2015 and June 24, 2016, when he again saw his chiropractor.

The panel is further of the view that the mechanism of injury on the original claim is not consistent with a meniscal tear. The mechanism of injury has been consistently described as a bar coming down with significant force and hitting the worker's knee. The panel notes that there was no suggestion, on file or at the hearing, of the type of torquing or twisting motion which would generally be associated with a meniscal tear.

The panel also places weight on the report of the October 19, 2016 MRI of the worker's left knee, which showed "a horizontal tear body and posterior horn medial meniscus with parameniscal cyst at the level of the anterior body." It is the panel's understanding that horizontal tears of the medial meniscus are typically degenerative in nature, rather than manifestations of acute trauma.

At the hearing, the worker indicated that he had surgery on his left knee on May 3, 2017. Following the hearing, the panel requested and was provided with the Operative Report of that surgery, which confirmed that the worker had a horizontal tear of body of the medial meniscus, and a partial medial meniscectomy was done. The report also indicated that the surgery revealed further degenerative changes, and provided an additional diagnosis of "chondromalacia stage 3-4 lateral femoral condyle and tibial plateau." In the panel's view, these findings are generally representative of degeneration, and do not support a connection between the worker's difficulties and his work-related injury.

The worker also stated at the hearing that his family doctor had told him that his injury was all related to the fact of his hitting his knee with that bar. The worker relied on a letter from the family doctor dated December 16, 2016, which stated that the worker "quit his job…for Medical reason and I am supportive of this decision. He has not been able to work from June 12/2016 until December 10/2016 due to his medical reason." Following the hearing, the panel had also requested and was provided with chart notes from the worker's family doctor. A review of those notes indicated that the worker first saw his family doctor on June 30, 2016. In the circumstances, and given the lack of any clinical findings to support that letter and the very general nature of the doctor's comments, the panel is unable to place weight on the December 16, 2016 letter.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after May 14, 2015 as a result of his May 5, 2015 left knee injury. The worker is therefore not entitled to wage loss benefits after May 14, 2015 with respect to his May 5, 2015 accident claim.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the claim with the accident date of June 10, 2016 is acceptable.

For the worker's appeal on this issue to be successful, the panel must find that the worker's left knee difficulties in June 2016 arose out of and in the course of his employment. The panel is unable to make that finding, for the reasons that follow.

As indicated under Issue #1, the worker's position was that the difficulties he experienced in May or June 2016 were related to or a continuation of his 2015 work-related injury. The worker has not suggested, and the panel is satisfied that the evidence does not support, that there was a new work-related injury or accident involving the worker's left knee in 2016.

For the reasons which are set out in response to Issue #1, the panel finds, on a balance of probabilities, that the worker's difficulties in 2016 were not causally related to or a continuation of his May 5, 2015 workplace injury.

As a result, the panel finds, on a balance of probabilities, that the worker's left knee difficulties in June 2016 did not arise out of or in the course of the worker's employment. The panel therefore finds that the claim with the accident date of June 10, 2016 is not acceptable.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 3rd day of November, 2017

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