Decision #28/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further wage loss and/or medical benefits after August 5, 2016. A hearing was held on January 25, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss and/or medical benefits after August 5, 2016.
The worker is entitled to further wage loss and medical benefits after August 5, 2016.
On August 3, 2016, the worker sustained a left knee injury when he was moving a garbage can half-full of construction debris down two flights of stairs. On the report he completed August 22, 2016, the worker claimed "I missed a step and came down on my left knee and felt it twist."
When the worker attended at his doctor's office on August 4, 2016, his doctor noted "patient climbed stairs and twisted his left knee that cause (sic) pain, swelling in left knee, stabing (sic) pain in left knee" and diagnosed him with "left knee muscle strain". Due to chronic difficulties with his left knee and a prior accepted WCB claim, the worker was scheduled for an MRI on August 14, 2016. When comparing the worker's August 14, 2016 MRI with an MRI conducted in April 2015, it was noted, in part "Within the posterior lateral meniscus at the junctional region there is a new inner margin radial tear extending through to the body."
A medical opinion was obtained by the WCB's orthopedic specialist on September 15, 2016. The WCB orthopedic specialist opined, in part:
With regard to the reported mechanism of injury on 3-Aug-2016, reports from different sources vary; the original transcribed report directly from the worker received at WCB on 22-Aug-2016:
I was taking ½ a garbage can of plaster down two flights of stairs at a church. I missed a step and came down on my left knee and felt it twist. I continued to work.
Such a mechanism of injury could possibly result in an internal derangement of the knee, such as a new meniscal tear; it could also possibly result in a flare up of synovitis and effusion in a knee which has considerable degenerative joint disease. Correlation of the mechanism of injury, initial clinical findings, and MRI findings does not support a diagnosis of a new meniscal tear. It is more probably that the injury of 3-Aug-2016 was a strain/sprain of the left knee, which was already affected by degenerative joint disease and was the site of previous surgery.
On October 14, 2016, the worker was advised by the WCB that his claim was not accepted as the WCB was unable to establish that a work related accident occurred. However, after a review of the information on file, the WCB advised the worker on January 16, 2017 that it had reversed its previous decision and determined that a work related incident did occur on August 3, 2016 and that the worker was entitled to benefits to and including August 5, 2016. The WCB further advised the worker that as he continued to work his regular duties without symptoms or complaints after the incident on August 3, 2016, it was felt that he had recovered from the diagnosed left knee strain and he would not be entitled to any wage loss or benefits beyond August 5, 2016.
After submission of a report by the worker's orthopedic specialist on January 5, 2017, the WCB requested a review of the file by a WCB orthopedic specialist. In his report dated February 8, 2017, the WCB orthopedic specialist noted:
It is more likely that the further tearing of the lateral meniscus is related to the OA [osteoarthritis] of the knee and the meniscus degeneration, rather than the effect of the workplace injury. The natural history of OA of this degree of OA is of episodes of pain, swelling and loss of knee function, the episodes increasing in severity and frequency over time.
The WCB advised the worker on February 21, 2017 that it had reviewed the new information however, based on the opinion provided by the WCB orthopedic specialist, they upheld the decision that he was not entitled to benefits beyond August 5, 2016.
The worker, through a representative, requested reconsideration of the decision to the Review Office on April 4, 2017. On May 9, 2017, Review Office determined that the worker was not entitled to further wage loss and/or medical benefits after August 5, 2016. Review Office accepted the conclusion of the WCB orthopedic specialist that the worker's current left knee difficulties, including the meniscal tear, were not related to the worker's August 3, 2016 incident. It was determined, on a balance of probabilities, that the worker's issues were due to the chronic knee problems prior to the workplace incident occurring and the lack of specific findings in the doctor's report of August 4, 2016 to support that a lateral tear occurred.
On June 27, 2017, the worker's representative filed an application with the Appeal Commission. An oral hearing was held on January 25, 2018.
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.
Under subsection 4(2), 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 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
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.
WCB Policy 18.104.22.168, 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:
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.
The worker was represented by a worker advisor. The worker answered questions from his representative and the panel.
The worker's representative noted that WCB provided benefits for only three days after the accident because they were of the opinion that the worker's left knee problems were unrelated to his workplace accident. She advised that the worker disagrees with this assessment as the evidence supports that the worker had a workplace accident which caused a lateral left knee injury for which there is a further WCB responsibility beyond the three days.
The worker's representative said that the worker was sliding a garbage can down stairs when he stepped on some debris on the stairs, which he did not see. He lost his balance and twisted his left knee. As a result of this accident he felt immediate pain.
The worker's representative submitted that:
The mechanism of injury was described as a left knee twist. It is our position that a twisting action is consistent with the finding of a lateral radial meniscus tear.
The worker's representative noted that the worker's claim was initially accepted for a left knee strain based on a physician's report dated August 4, 2016. She said it is the worker's position that this was a provisional diagnosis due to the swelling at the joint. It is the worker's positon that the initial objective findings also support a meniscus type injury and that the objective medical findings confirm swelling at the knee joint and a positive McMurray's test which she said was a test for meniscal injuries, such as tears. At the next appointment on August 16, 2016, the physician noted a possible tear. She also noted that the worker had a 2015 claim for a knee injury but that in the 2015 claim, the physician did not make any reference to a medial side of the left knee.
In support of the worker's appeal, the worker's representative noted that in a memo dated September 15, 2016, the WCB orthopedic consultant indicated that the mechanism of injury could possibly result in an internal derangement of the knee such as a new meniscus tear. She also noted that the WCB orthopedic consultant concluded that the tear found on the MRI of August 14, 2016 is not a new tear and is more likely a degenerative tear, because the 2015 arthroscopy connected to the prior claim, noted a left lateral meniscus tear.
The worker's representative noted that:
• prior to this 2016 accident, the worker did not have any symptoms connected to a lateral aspect of his knee.
• the operative report of August 31, 2015 confirms the surgeon debrided all tears, smoothed and shaved down to a stable base.
• the MRI of August 14, 2016 confirms a new inner margin lateral radial tear extending through the body is the result of the 2016 workplace accident.
The worker's representative referred to the January 5, 2017 report from the treating orthopedic surgeon which indicated that the worker was complaining of a lateral joint line pain. The surgeon also noted significant swelling and confirmed the MRI demonstrated a further tearing of the lateral meniscus in association with significant effusion in the knee. She submitted that the surgeon confirmed that the majority of the worker's symptoms were lateral joint line location and that the worker's pre-existing conditions within the left knee did not stop the worker from working.
In answer to a question, the worker described the incident which resulted in the injury. He said that:
We were going down the back stairs with debris hauling it out to a roll-off bin. And I had like two grain shovels in the can, it's plaster dust, like busted up concrete and you couldn't really put it in a garbage bag because, or sling it over your shoulder because the sharp particles would pierce the bag and you would have a mess all over, so we were putting it in Brute garbage cans.
I put two scoops in the can and rather than carry it down the stairs, I was going down the stairs backwards and all you do is you, if you want to stop you just stand the can up and its stops.
It's like carrying a water heater down the stairs. You don't carry it in front of you because you're going to lose it like, and it's going to take you with it, so I was going down the stairs and there was like a softball chuck of mortar or concrete plaster on the stairs and I hit that with my left leg, kind of lost my footing and twisted my knee.
The worker said that hauling garbage up and down the stairs was a regular part of his job duties.
The worker maintained that he reported the incident to this supervisor on August 4, the day following the accident.
Regarding the MRI, the worker acknowledged that it had been arranged months in advance by his family physician to determine how his old injury had healed. He advised that once the physicians received the results of the MRI, she took him off work.
The worker told that panel that the surgeon said he operated on the right hand side of the worker's knee not the left and that this was definitely a new injury.
In reply to a question about the current condition of his knee, the worker advised that:
No, it hasn't gotten any better. I can't walk a long distance to go from middle of the parking lot into a store. By the time I get into the store it hurts and I kind of got to use a shopping cart as a walker.
The employer was represented by its Controller.
She advised that after the 2015 injury, the employer put the worker on modified duties. They had the worker sign a letter stating he would not climb stairs, he would not haul garbage bins, and he would not lift stuff. In addition the employer provided other employees to load the worker's truck.
The employer representative noted that the medical note said that the worker had degenerative changes in his knee.
The employer's representative advised that the worker worked every shift between August 5 to 18, made no complaints during that period, and did not report the incident until August 19.
The employer's representative submitted that:
That the surgeon who performed the surgery to clean out his knee is the best one to judge what was going on with the knee.
The employer's representative commented that the employer does not know what caused the worker's injury. She reviewed the worker's duties which involved driving a truck and advised that the worker's duties did not involve carrying materials or using stairs.
The employer representative advised that:
our objective is not to stop someone from being compensated, it's to make sure the compensation is being applied to the injury that actually happened at the work.
She submitted that:
we're unsure if the injury, the 2016, the 2015, the 2008 and the one prior to that are caused by actual incidents or if they are continuously aggravated by the osteoporosis arthritis, which ever that is.
For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after August 5, 2016 as a result of his August 3, 2016 workplace injury. For the reasons that follow, the panel is able to make this finding.
In making this decision the panel attaches significant weight to the opinion of the orthopedic surgeon who performed surgery on the worker's left knee on August 31, 2015 and who examined him on January 5, 2017. This surgeon opined that the further injury from the August 3, 2016 accident was a radial tear and was due to the workplace accident. He opined that:
…The MRI in fact demonstrated a further tearing of his lateral meniscus in association with a significant effusion in the knee. Certainly at the time of the scoping, his lateral compartment was much better maintained.
Examining him today, he continues to exhibit moderated (sic) sized effusion in the knee. His ligaments are stable. Again his majority of his (sic) symptoms are in fact lateral joint line in location.
Certainly there's no doubt that [worker] has pre-existing medial compartment osteoarthritis but this is not what is stopping him from working at the moment but in fact its the lateral joint line symptoms which I think are on the basis of his lateral meniscus tear which I also believe is in fact work related… He is appealing WCB decision as I think that they have not recognized the lateral meniscus tear as being work related but I certainly wouldn't wait around trying to get this resolved as he has been off work since August already…."
The panel also relies upon the opinion of the radiologist who compared the 2015 MRI and the August 14, 2016 MRI. He opined that:
There is a new inner margin radial tear of the lateral meniscus.
The panel notes that the worker saw his family physician on August 4, 2016, the day after the incident. The panel finds this to be consistent with the worker having injured his knee on August 3. This was not a previously scheduled appointment and supports a finding that the worker sustained an injury on August 3, 2016.
The panel notes the September 15, 2016 opinion of the WCB orthopedic specialist who acknowledged that the mechanism of injury could possibly result in an internal derangement of the knee, such as a new meniscal tear. While this physician came to a different opinion to that of the worker's orthopedic surgeon, he did recognize that such an injury was possible.
The panel finds that the worker's symptoms were consistent with the lateral joint line injury with sharp pain and swelling.
In conclusion, the panel finds on a balance of probabilities that the worker sustained a new injury while performing his duties on August 3, 2016 and that he is entitled to wage loss and medical aid benefits after August 5, 2016.
The panel draws no negative inference from the fact that the worker continued to work after the accident, until his family physician advised him to stop working. The panel accepts the worker's evidence that he continued working with difficulty.
The worker's appeal is approved.
A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of March, 2018