The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for a left knee injury is not acceptable. A hearing was held on April 23, 2018 to consider the worker's appeal.

Issue

Whether or not the claim for a left knee injury is acceptable.

Decision

The claim for a left knee injury is not acceptable.

Background

The worker reported to his employer on May 27, 2009 that he injured both knees in an incident on May 26, 2009.

In an initial discussion with the WCB on February 17, 2010, the worker advised the WCB that he continued to work his regular duties and did not file his claim with the WCB until February 12, 2010 as he was waiting to see what the results of a January 2010 MRI were. He also confirmed that his claim was for an injury to his left knee, not both knees as originally claimed.

At an appointment with the worker's family doctor on June 9, 2009, the worker complained of bilateral knee pain, but made no mention of a workplace accident occurring, and the worker was referred to an orthopedic surgeon. An x-ray taken of both of the worker's knees on June 15, 2009 noted no bone or joint abnormalities.

On January 28, 2010, the worker met with the orthopedic surgeon who reviewed the results of the MRI scan. The orthopedic surgeon noted that there was a "…definite horizontal cleavage tear of the medial meniscus" on the worker's left knee. At a follow-up appointment with the worker's family doctor on February 1, 2010, the worker's doctor diagnosed him with "osteoarthritis knees".

The WCB advised the worker on March 29, 2010 that his claim for a left knee injury was not acceptable. The WCB noted that in considering the worker's delay in seeking medical attention, his ability to continue his regular duties, his described method of injury and the medical findings, it could not be established that a workplace accident occurred.

The worker requested reconsideration of the WCB's decision on December 9, 2014 to Review Office. The worker disagreed with the WCB's denial of his claim for his left knee injury as he felt that since he had several surgeries on his left knee as a result of workplace accidents involving his right knee and right ankle, the WCB should accept his claim.

Review Office advised the worker on March 6, 2015 that they were upholding the WCB's March 29, 2010 decision. Review Office found that, in a discussion with the WCB, the worker advised that he had left knee difficulties since 2005 and reported wrenching his left knee numerous times as he favoured his right knee. It was determined that the incident that occurred on May 26, 2009 likely caused an increase in the symptoms of the left knee as he had done several times before. It was further noted by Review Office that the orthopedic surgeon diagnosed a horizontal cleavage tear, which are degenerative in nature, and no evidence could be found to support that the medial meniscus tear occurred on May 26, 2009. Review Office also noted that the worker continued to work his regular duties and did not seek medical attention until June 9, 2009. When the worker did seek medical attention, he did not advise his family doctor of a workplace accident and only complained of bilateral knee pain.

The worker filed an application with the Appeal Commission on November 20, 2017. An oral hearing was held April 23, 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 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.

Worker's Position

The worker was self-represented. He was accompanied by his wife.

The worker confirmed that his left knee problems developed on May 25, 2009 when he worked as a courier. The worker also confirmed that the accident occurred when he went to grab a box to load into his truck; his whole body did not turn, his feet stayed and the rest of his body turned and he wrenched both of his knees. He added that:

But it wasn't so much the box was heavy, it was, I had it, and I had to turn my whole body, and I didn't, and my knees took the kicking.

The worker was asked what he did the day following the injury. He confirmed that he continued to do the same job the next day. He stated:

Yes, but I wouldn't lift. You know, I wouldn't lift anything heavy. I would go in, do my paper, like, I would get my paperwork, all my POs come in, what came in that day, and I would tick it off and -- It takes, after I injured or whatever the word you want to say that I had hurt them, you take two or three days for the -- I mean, my knee would swell right up, you know what I mean. Like, the same as my ankle, and then ice.

He advised that his knees swell up often, once a week or more. He said that if he twists his knee now, it takes longer for the swelling to go down.

The worker spoke about problems with his right knee which have been accepted by the WCB and problems with his left knee which have not been accepted by the WCB. He confirmed that he believes his left knee problems resulted from his right knee injury. He advised that:

I'm now shorter in the right knee, putting more pressure to the left knee…

The worker advised that his calf has decreased, putting pressure on his left side. He stated:

Like I said, many, many years limping to my left side I've destroyed my left knee. Many, like, I'm 34 and a half years limping to the left side, and it's damaged inside. I've had surgeries on that left knee. It's getting weaker….

The left knee is seizing up badly, from years, like I said, limping to the side… I'm not a doctor, okay, everything, you know, jamming to that knee just took a toll, and I feel that it should be looked at.

The worker showed the panel his uploader brace for his right knee and Ritchie brace for his ankle. He advised that he had surgery seven times on his right knee and received an Oxford knee now, which he described as a half knee replacement in October 2013.

In reply to a question, he confirmed that since 2006, he has had 2 MRIs and 3 surgeries on his left knee, specifically in 2006, 2010 and 2016. He said that he has also had Durolane and Synvisc-One injections, and that since January of 2017 he had a total of three injections in both his knees and is going to have injections in April 2018. He also uses a machine similar to a TENS machine. In addition he has a hot tub which he uses frequently.

Employer's Position

The employer did not participate in the appeal.

Analysis

The panel notes that the worker previously appealed the issue of whether his claim for a left knee injury occurring either October 25, 2000 or about June/July 2003 was acceptable. The Appeal Commission found that the claim for his left knee was not acceptable noting "that a relationship cannot be established between the worker's left knee condition and the compensable injuries involving the right ankle and right knee.

The worker is now appealing the WCB decision that his claim for a 2009 left knee injury is not acceptable.

For the worker's appeal of this issue to be accepted, the panel must find that the worker injured his knee in an accident arising out of and in the course of his employment. The panel was not able to make this finding.

While the worker identified a specific incident where he was loading his delivery truck and he felt pain in his left knee, the panel has not been able to identify a resulting injury. The worker advised that he worked the day following the injury, but was able to modify his duties.

The panel notes that the worker was referred by his family physician to an orthopedic surgeon who ordered an MRI and ultimately performed surgery. In a letter dated January 28, 2010 the orthopedic surgeon described the MRI findings. He wrote that the left side shows a definite horizontal cleavage tear.

The orthopedic surgeon operated on the left knee on April 14, 2010. The Operative Report indicated that:

The medial compartment then revealed meniscal tear but these were mainly degenerative looking.

The orthopedic surgeon recommended non-surgical treatment for osteoarthritic degenerative changes.

The panel relies upon the reports of the orthopedic surgeon in finding that the worker did not sustain an injury as a result of the 2009 incident.

In answer to a question from the panel, the worker advised that over the years, both before and after the 2009 incident, he had similar problems with both his left and right knees. As referenced above, the Appeal Commission has previously addressed the issue of acceptance for the worker's left knee injury, although not in relation to the May 2009 incident. In Appeal Commission Decision 26/06 the Appeal Commission found that the worker did not sustain injury by accident to his left knee. It also found that the worker's left knee condition, which was noted to have been present since 1986 or 1987, was a long standing problem and was not related to the worker's right knee and ankle injuries.

The panel finds, on a balance of probabilities, that the worker's left knee injury did not arise out of or in the course of his employment and specifically was not caused by the May 2009 incident.

The worker's claim is not acceptable.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of June, 2018