The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left knee injury was not work related and therefore his claim for compensation was not acceptable. A hearing was held on October 19, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On August 26, 2016, the worker filed a claim with the WCB for a left knee injury that occurred on August 22, 2016. The worker stated:

I went to work and did my first call, then I went to my second call at 7:10, I was getting out of the car, I put my left foot out I turned to get out and my left knee didn't turn with me and I stood up on it and felt a twinge in my left knee, there was a little bit of pain but I thought it would go away.

I continued to work my shift, my shift Tuesday, August 23, 2016 I was working all day. Then on August 24, 2016 I woke up and noticed it was swollen a bit. I bought a knee brace that day. August 25, took half the day off and went to [hospital] urgent care.

The worker said he delayed reporting his injury to his Resource Coordinator until August 25, 2016 as he didn't think it was that bad.

The Employer's Accident Report dated August 30, 2016 described the worker's injury as follows:

Worker just parked outside his client's apartment building. While he was getting out of the his (sic) vehicle, he put his left foot out and then stood up and twisted his upper body and brought his right foot to get out of the vehicle. Worker felt a little crack in his left knee as he went to stand outside of his vehicle, but did not think anything of it and continued on with his day.

The employer noted that when the worker called to report his injury on the 25th, he said he thought he pulled his knee. The worker was asked if it happened at work or at home and he replied that he did not know.

On August 31, 2016, a WCB adjudicator called the worker to gather additional information related to the mechanism of injury, the nature of his left knee symptoms and reporting of the accident to his employer.

The worker's claim file, which included medical information, was reviewed by a WCB medical advisor on September 6, 2016 who opined as follows:

• The diagnosis was a left patellar fracture based on left patella/knee x-rays dated August 25, 2016. 

• The natural history of a patellar fracture is typically immediate (often severe) pain at the patella following a forceful blow to the anterior aspect of the patella. The symptoms of swelling and/or bruising may also be reported. Fracture healing may be facilitated through non-surgical or surgical means depending on fragment displacement.

With respect to the August 22, 2016 mechanism of injury, the medical advisor stated:

• [Worker] reported in the Worker Incident Report, that on August 22, 2016 in the act of exiting his vehicle, with his left foot planted, he twisted to exit his vehicle. 

• The August 25, 2016 [hospital] Urgent Care Treatment Record, indicated the history of a twist of the left knee 3 days previously. 

• The August 31, 2016 memo, Initial Contact, indicated that [worker] reported that his left leg was planted and as he turned his knee did not turn. During this action he felt a twinge of pain in his knee.

Insofar as the documented mechanism of injury is not congruent with a blow to the left patellar region, the August 22, 2016 workplace event does not medically account for the August 25, 2016 left knee x-ray finding of a patellar fracture.

In a WCB decision dated September 9, 2016, the worker was advised that his claim for a left knee injury sustained on August 22, 2016 was not acceptable as there were delays in seeking medical attention and the mechanism of injury did not correspond with the diagnosis of a fractured left patella.

On September 22, 2016, the worker appealed the above decision to Review Office. On November 7, 2016, the employer's representative indicated that they agreed with the decision that the mechanism of injury was not consistent with the diagnosis. A rebuttal submission from the worker is on file dated November 21, 2016.

On November 24, 2016, Review Office determined that the worker's claim was not acceptable. Review Office "finds the evidence does not support the worker injured his left knee at work on August 22, 2016. The evidence does not support that the injury the worker sought medical attention for on August 25, 2016, is related to stepping out of his vehicle three days previous. The worker's symptom manifestation immediately following stepping out of his vehicle is not in keeping with a patellar fracture and the mechanism of injury as described in (sic) not common or probable to cause the worker's left knee injury."

On March 27, 2017, the worker's union representative asked Review Office to reconsider its previous decision based on new medical evidence from an orthopedic surgeon. The union representative submitted that the worker's claim was acceptable because he had an accident on August 22, 2016 arising out of and in the course of his employment which caused an injury, irrespective of the diagnosis, to his left knee. The union submitted that the opinion provided by the orthopedic surgeon established that the worker's accident was, on a balance of probabilities, responsible for the fracture of his left patella.

On March 28, 2017, Review Office advised the worker that after considering the new information, no change would be made to its previous decision. Review Office stated, in part:

We note that your doctor's opinion regarding possible causes of a patellar fracture such as the one you suffered could come from "forced flexion injury (of the knee)," and he notes this is how the mechanism of injury was described to him…As no forced flexion mechanics have been described by the worker previously to either the employer or the WCB, the file evidence does not support this type of injury. The worker described getting out of his car, planting his left foot and then his right as he stood up. Throughout this mechanism there is no "forced flexion."

On March 31, 2017, the worker's union representative 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:

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 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;

The WCB Board of Directors enacted WCB Policy 44.05, Arising Out of and in the Course of Employment. This policy provides in part that: 

To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment…

Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker's employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when 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:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

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 is appealing the WCB Review Office decision that his claim is not acceptable.

At the hearing, the worker was represented by his union. The worker answered questions posed by his representative as well as questions submitted to him by the panel. The worker's representative began his presentation by summarizing his submission that had been previously provided to the panel on October 11, 2017.

During the hearing, the worker's representative confirmed that it was the worker's position that he injured his left knee stepping out of his parked car to attend to a client in the client's home. The worker's representative submitted this incident was consistent with the definition of an accident in accordance with the Act because it was a chance event that arose out of and in the course of his employment.

The worker's representative stated:

He reported immediate symptoms that were sufficient to take note, but not in his mind at the time enough to warrant any medical attention, time off work, or formal reporting.

He reported that he did his regular duties over the next couple days while limping, and that limping was an issue that did not improve.

He did seek medical attention and was diagnosed with a patella fracture, treatment of which required rigid bracing, which prevented him from driving, and therefore took him off work.

The worker's representative explained to the panel that the WCB denied the claim on the basis that the injury described by the worker could not have caused the diagnosed patellar fracture because such an injury would typically be caused by a direct blow to the knee resulting in immediate pain.

The worker's representative noted that the worker's treating orthopedic surgeon had confirmed that the described mechanism of injury involving forced flexion was, in his opinion, consistent with the diagnosed fracture.

The worker's representative also suggested that preference should be given to the worker's treating orthopedic surgeon's opinion because it was based on the details of the worker's case, while the WCB's medical advisor only commented on the most common cause of the diagnosis.

The worker's representative submitted that it was their view that the evidence supported the acceptability of the worker's claim and asked the panel to overturn WCB's decision to not accept the claim.

The worker's representative asked the worker a series of questions regarding the nature of the work he performed and the physical demands of the job. The worker also described for the panel the events that surrounded his exiting his vehicle on August 22, 2016.

In response to these questions the worker stated, in part:

They have a parking lot and they have like a side -- that you can park on the street. Because like we --I'm already running five minutes late, or ten minutes late behind, I parked on the street that I could turn around quickly and get back out to get to the other client.

And then, as I said, when I exited the car, and I got and I turned, and my feet, like they're planted, and it just -- you heard a pop, so I just, okay, I checked. Okay, it's okay.

I walked, I still walked on to the client and as I did that day, I did I think 12 visits. And I did everybody the Tuesday morning --

The worker further stated in response to his representative's questions about the events of August 22, 2016 that he heard a "pop" in his knee when he was turning while exiting the vehicle. When asked if he felt anything at the time, the worker also stated "You feel like a little twinge, and then you just go, like you know, it will go away."

The worker described the knee feeling painful for the remainder of the day and that the pain in the knee became worse the following day (Tuesday) and progressively worse the day after that (Wednesday).

The worker told the panel that he attended a workplace meeting two days later, on Wednesday (August 24, 2016). He stated that he had to limp to the meeting. The worker advised the panel that he told the other person attending the meeting the following "…And I said, oh, my knee is really painful today, I don't know what I did. And he said to me, oh, well, maybe you should go get it checked. And I said, yes, it will be okay. And I went and I got a knee brace right after that."

The worker attended an urgent care treatment center on Thursday, August 25, 2016, at which time he was diagnosed with a fracture to his left patella that resulted in the worker being absent from work for approximately eight weeks.

The worker advised the panel that his conversation with a doctor at the urgent care treatment center was as follows:

And he asked me, have you -- he said, how did you hurt the knee? And I said, well, I really don't know. I said, the only thing I remember, so far, is like on the Monday when I got out of the car I heard a popping sound.

And I said that I thought it was going to go away because, like you know, sometimes it sounds like, you know, if you get up too fast you hear cracking and you're, okay, it goes away.

The worker went on to state that he has been consistent in his reporting of events throughout the claim and that he ultimately recovered from the knee injury.

Employer's Position

The employer was represented by an advocate at the hearing.

The employer's advocate stated that the description of the worker exiting his vehicle would not be consistent with a mechanism of injury that would result in a patellar fracture. The employer's advocate suggested that if the worker had fractured his patella as described then one would expect immediate intense pain and swelling. The worker instead continued to work his regular duties on the workdays after August 22, 2016 and he did not report any swelling until two days later.

The employer's advocate also noted that when the worker was providing his evidence to the panel regarding the workplace meeting that took place on the Wednesday (August 24, 2016), the worker stated that he advised his co-worker who also attended the meeting that he did not know what he had done to his knee.

The employer's advocate also noted that the worker advised his supervisor of the same thing when he reported the knee fracture on August 25, 2016, as the worker advised his supervisor at that time that he was unsure whether the injury had happened at work or at home.

The employer's advocate submitted that it was their position that the worker had not sustained an injury exiting his vehicle and that there was no indication of a forced flexion injury. The employer's advocate reviewed medical information describing the common circumstances that a patellar fracture would result from and stated that the description of the incident on August 22, 2016 was not consistent with any of them.

For the reasons noted, the employer's advocate asked that the panel deny the worker's claim.

Analysis

The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be accepted, the panel must find that the worker sustained an injury by an accident arising out of and in the course of his employment. Both criteria must be met for there to be an accident under subsection 4(1) of the Act. The panel is able to make that finding.

In making this determination, the panel carefully reviewed all the information provided. The panel accepts that the worker sustained an injury at work that resulted in a patellar fracture becoming symptomatic at work. However the panel does not accept that the worker's patellar fracture was caused by him exiting his vehicle on August 22, 2016. Rather, the panel finds that it was enhanced by that incident and his ongoing job duties that day.

The panel notes that the worker's attending orthopedic surgeon, who treated his patellar fracture at the time of injury, provided the worker's representative with the following information on March 13, 2017 when the orthopedic surgeon was requested by the worker's union to provide an opinion regarding the worker's patellar injury: 

(The worker) sustained a fracture of the inferior pole of the left patella. The injury is a forced flexion injury.

The panel accepts the worker's treating orthopedic surgeon's diagnosis of the injury provided in his March 13, 2017 correspondence of a fracture of the inferior pole of the patella.

It is the panel's understanding that forced flexion (or hyperextension or hyperflexion) injuries are caused when the knee joint is forced to extend beyond its normal range of motion. The panel finds, however, that this type of body movement is inconsistent with the mechanism of injury that has been described by the worker who describes that he was getting out of his car at the time of the injury.

While the panel acknowledges that the worker's treating orthopedic surgeon's opinion is that "the history I got from [the worker] is totally consistent with the fracture mechanics of forced flexion injury", the panel does not arrive at the same conclusion with respect to the events described by the worker as occurring on the morning of August 22, 2016.

The body movements the worker described when he exited his car on August 22, 2016 were that he opened the driver's side car door, placed his left foot out of the car, stepped out of the car and pivoted on his left foot while he was getting out of the car.

It is the panel's view that none of the body movements that the worker engaged in to exit his vehicle would result in the diagnosed forced flexion fracture to his left patella as the worker was moving from a flexed position to a standing position, thus reducing rather than increasing flexion at the knee. While the worker may have indeed felt a twinge or a pop in his left knee while twisting, the panel finds that the incident did not cause the worker to fracture his left patella at that time.

The panel then considered whether the worker may have aggravated or enhanced a pre-existing patellar fracture when he exited his car on August 22, 2016.

The panel notes that the worker's representative specifically asked the worker's treating orthopedic surgeon whether the incident on August 22, 2016 caused an aggravation or enhancement to a pre-existing condition. The worker's treating orthopedic surgeon responded by stating:

I do not have any evidence to say that the fractured patella in question happened before August 22, 2016. I do not believe that there was an "aggravation" or "enhancement" of a pre-existing condition. There was no "pre-existing condition".

The panel acknowledges that there is no specific medical evidence of a pre-existing medical condition prior to August 22, 2016, but accepts the worker's evidence that he had been symptomatic from that morning incident until he was ultimately diagnosed with the left patellar fracture on August 26. It is the panel's view that the worker had an asymptomatic left knee patellar fracture that was enhanced by the worker exiting his vehicle on August 22, 2016, when he felt the "pop", as well as performing the physical demands of his position for the remainder of his shift that day. The panel also notes that although the worker's regular routine involved respite work on the following two days after August 22, 2016 which was generally sedentary type of work, his knee condition continued to become more symptomatic.

The panel's determination is supported by the worker's treating orthopedic surgeon who also stated the following in his correspondence to the worker's representative dated March 13, 2017:

It should be noted that the extensor expansion of the patella was still intact and this could be the reason why he did not have much pain immediately following the accident.

The panel finds that the opinion of the worker's orthopedic surgeon supports that the worker had fractured his left patella prior to August 22, 2016. The panel accepts that because the remainder of the worker's overall knee structure (as described as the extensor expansion by his orthopedic surgeon) had remained uninjured, the worker was not experiencing pain symptoms. However, the events the worker described as occurring at work on August 22, 2016 and afterwards confirm that the patellar fracture became symptomatic at that time.

Based on the foregoing, the panel finds that, on the balance of probabilities, the worker did sustain an enhancement of a pre-existing injury arising out of and in the course of his employment, and his claim is therefore acceptable.

The worker's appeal is upheld.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 28th day of November, 2017