Decision #37/18 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable as a new accident occurring on August 4, 2015. A hearing was held on February 7, 2018 to consider the employer's appeal.
Issue
Whether or not the claim is acceptable as a new accident occurring on August 4, 2015.
Decision
The claim is acceptable as a new accident occurring on August 4, 2015.
Background
The worker had an accepted claim in 2014 for a right knee injury while employed by a different employer. On August 20, 2015, the worker, employed as a truck driver and furniture mover with his current employer, reported feeling his "right knee pop" on August 4, 2015 while "getting up into truck, onto steps" to his doctor at an examination. The doctor diagnosed a "Med (medial) meniscus tear, re-exacerbation" and recommended an x-ray, an MRI, an orthopedic surgery referral and for the worker to perform "Desk duties only. Off driving duties and stairs until Sept 13, 2015."
An X-Ray conducted on August 21, 2015 indicated:
RIGHT KNEE
No acute or chronic bone, joint or soft tissue abnormality
The worker's Physiotherapy Initial Assessment on August 31, 2015 indicated the worker complained of:
- Clicking and catch of the R (right) knee
- Difficulty negotiating stairs
- Pain with walking (resolving since initial injury)
- Pain following activity requiring weightbearing
The physiotherapist diagnosed the worker with a right medial meniscal tear.
The worker was seen for a follow-up appointment by his doctor on September 8, 2015 who diagnosed a likely med (medial) meniscus tear and questioned whether it was a re-tear or a new tear. The doctor also recommended that the worker continue on modified duties of:
- starting immediately until October 4, 2015
- desk duties only if available
- no climbing of stairs, no driving duties, no lifting duties
- able to ambulate non-inclined surfaces for no more than 5 minutes at a time
On September 18, 2015, an MRI was conducted and noted:
CLINICAL HISTORY: Previous medial meniscal tear. New injury
MRI RIGHT KNEE
Comparison made April 2014.
The horizontal tear of the posterior medial meniscus extends through to the anterior junctional area. The fragment from this entire area has flipped into the posterior recess.
The lateral meniscus, cruciate ligaments and collateral ligaments are unremarkable.
There is moderate sized joint effusion. There may be mild chondromalacia of the medial femoral condyle.
IMPRESSION:
The medial meniscus tear has become more complex with a large flipped fragment into the posterior recess.
The worker saw an orthopedic surgeon on October 23, 2015 who recommended that the worker undergo arthroscopic surgery to repair his medial meniscal tear. The surgery was completed on October 30, 2015.
At his post-operative appointment with the orthopedic surgeon on December 21, 2015, the orthopedic surgeon noted that the worker was "Doing well" and could "RTW (return to work) Jan 4/16 - full." The worker attended at his family doctor's office on January 12, 2016. His family doctor recommended a gradual return to work.
The worker advised the WCB on February 25, 2016 that he had returned to his full duties.
On November 10, 2016, the WCB wrote to the employer advising that the worker had sustained a right knee injury while employed with them and that the worker's claim had been accepted. The employer requested reconsideration of the WCB's decision on November 14, 2016 advising that they felt the worker's injury was a pre-existing injury that occurred while the worker was employed with his previous employer. The worker's current employer also felt that they were not given the opportunity to provide the worker with light duties.
Review Office, on July 7, 2017 determined that the worker's claim was acceptable based on a new accident occurring on August 4, 2015. Review Office found that the September 18, 2015 MRI indicated that a structural change had occurred compared to the previous MRI done on the worker's right knee. Review Office also agreed with a WCB medical advisor's opinion "…the re-injury caused further tearing of the meniscus tear of March 10, 2014, thereby increasing the level of symptoms to a level where surgery became warranted" and concluded that a new accident had occurred on August 4, 2015.
The worker's current employer filed an application with the Appeal Commission on August 22, 2017 stating that the worker's injury occurred while the worker was employed by his previous employer. The Appeal Commission wrote to all parties, including the worker's previous employer, to allow all parties the opportunity to participate in the hearing. An oral hearing was held on February 7, 2018.
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:
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 willful 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 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;
Where there is an accepted claim, Subsection 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
The employer is appealing the WCB Review Office decision that the worker's claim is acceptable as a new accident occurring on August 4, 2015.
Employer Position
The employer was represented, collectively, by the Vice -president and two Operations Managers.
The employer's representatives advised that when the worker was injured he informed them that he had previously injured his knee, that it this was the same injury and that it will be on his prior WCB injury claim. He provided a note indicating this and he also told the WCB it was from his earlier injury.
With respect to the accident description, the representatives understood that it occurred when he was entering or exciting a truck. They understood that it happened when he was out of province and was unloading a truck. They did not have any details of the incident. They advised that the worker is no longer employed by the employer. The representatives confirmed that the employer is not disputing that an accident occurred.
The employer's vice-president questioned the relationship between this accident and the 2014 prior accident, and specifically whether this accident was caused by the injury the worker sustained in the prior accident. The representatives discussed whether the workplace accident aggravated or enhanced the worker's knee.
The employer representatives suggested that if the accident was caused in part by the prior accident, that the employer should not be responsible for the costs of the claim or that the costs should be shared with the former employer.
The employer representatives advised the worker did not return to work after his medical treatment.
Previous Employer
The worker's former employer did not attend the hearing, however, it provided a written submission.
In a September 2017 letter, its Chief Operating Officer advised that:
• the worker was once employed by the employer but was no longer an employee
• while employed by the former employer, the worker alleged that he sustained an injury on March 10, 2014 while bending down to change a tire. He indicated that he heard his knee pop.
• his co-workers reported that there were no symptoms of an injury, pain or discomfort
• the injury occurred on the worker's last day of work before a seasonal lay-off
• he returned to work for the employer in June 2014 and, there was no mention of an injury, nor any restrictions
• he worked for 7 months with no repercussions from an injury
• there were no limitations or restrictions while he worked for the employer
The former employer's position is that it is not responsible for the costs of the 2015 accident as the worker had worked without problems for 7 months following the alleged accident, he then left their employ and that 17 months had passed since the accident. The former employer noted that the Review Office found that the worker's left knee surgery and all costs associated with it are not the result of his March 10, 2014 injury with the former employer.
Worker's Position
The worker did not participate in the appeal.
Analysis
The employer is appealing the WCB decision that the worker's 2015 accident is acceptable as a new accident. For the employer's appeal to be approved, the panel must find that the 2015 accident is not a new accident. The panel was not able to make this finding.
The panel considered all the evidence and the arguments advanced on behalf of the employer. The panel was not able to find that the worker's injury was a continuation of his March 2014 injury. The panel finds on a balance of probabilities that the worker sustained a new accident in August 2015 while moving furniture for the employer.
In making this decision the panel attaches significant weight to the following evidence:
• the worker was able to work for more than a year after his first surgery without difficulty
• the description of the August 2015 incident provided by the worker was that he was climbing up into his work truck when he experienced pain
• a doctor's report dated August 20, 2015 indicated a "R knee injury", "injured at work just climbing up into truck, onto steps", "felt right knee pop" "onset: Aug 4, 2015"
• October 23, 2015 report (prepared prior to surgery) of the treating orthopedic surgeon noted that:
It is noted that some two years ago he injured his knee while squatting and subsequently had an MRI that confirms some meniscal tearing.
It is notable, however, that his recently performed MRI suggests that the medical meniscal tear has become more complex with a large flipped fragment into the posterior aspect of the joint.
…Although there was a pre-existing injury to the meniscus, it would appear that there has been a substantial alteration subsequent to this August episode.
• on August 25, 2015, the worker advised the WCB that he had no difficulty with his knee until the new incident in August 2015
• November 19, 2015 opinion of the WCB Orthopedic Consultant that:
It is probable that the re-injury caused further tearing of the meniscus tear of March 10, 2014, thereby increasing the level of symptoms to a level where surgery became warranted. There is a causal relationship between the current diagnosis and the diagnosis of the workplace injury.
The panel finds that the medical and other evidence supports a finding that a distinct new accident occurred when the worker climbed up in to his work truck. This not a continuation of the prior injury.
Given the panel's determination that the claim is acceptable as a new accident, the employer's appeal is dismissed.
Panel Members
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 26th day of March, 2018