The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after June 25, 2016, and the employer is appealing the decision made by the WCB that the claim is acceptable. A hearing was held on May 30, 2018 to consider both appeals.

Issue

Employer Appeal:

Whether or not the claim is acceptable.

Worker Appeal:

Whether or not the worker is entitled to benefits after June 25, 2016.

Decision

Employer Appeal:

That the claim is acceptable.

Worker Appeal:

That the worker is entitled to benefits after June 25, 2016 to July 11, 2016 inclusive.

Background

On May 26, 2016, the worker reported to the WCB that he hurt his right knee on May 18, 2016, in an incident which he described as:

My job entails climbing ladders, working on uneven surfaces, up and down stair wells and kneeling and squatting a lot. I over extended my muscle behind the knee from all the bending and squatting that I do.

The worker attended an initial physiotherapy appointment on June 1, 2016, where he reported that he "was standing/squatting awkwardly & felt R [right] knee pain on uneven surface." The physiotherapist provided a diagnosis of "R [right] PFS [patellofemoral syndrome]/Bakers Cyst??" and recommended that the worker be off work for one week, after which he would be reassessed.

The WCB gathered further information from the worker, his director, his supervisor and a co-worker. On June 9, 2016, Compensation Services advised the worker that his claim was accepted, and wage loss and medical aid benefits were approved.

At a follow-up appointment on June 22, 2016, the treating physiotherapist noted that the worker was capable of returning to work with restrictions of no squatting, no kneeling and no repetitive ladder work. On June 27, 2016, the employer was advised of the worker's restrictions and a graduated return-to-work was scheduled to begin on July 4, 2016. In a discussion with the WCB on July 4, 2016, the worker confirmed that he would be returning to work on light duties on July 5, 2016. The worker also advised the WCB that he had gone to the store on June 26, 2016 and aggravated his knee injury.

On July 5, 2016, the employer advised the WCB that the worker had attempted to return to work that day, but went home due to difficulties walking. Later that day, the WCB discussed the issue with the worker's physiotherapist, who advised that the worker's job duties "should be fine as long as he takes regular breaks from walking."

On July 11, 2016, the worker was seen by his family physician, who queried a right knee meniscal injury and provided a Sickness Certificate indicating that the worker should have sedentary duties only, to be re-assessed in three weeks. On July 14, 2016, the employer advised the WCB that they did not have any sedentary duties available for the worker.

At an appointment on July 26, 2016, the treating physiotherapist noted that the worker was able to work with modified duties of no squatting, kneeling or ladders, and to limit walking to thirty minutes, intermittent.

On August 2, 2016, the worker underwent an MRI of his right knee, which revealed: "Small effusion and Baker's cyst. Mild chondromalacia within the medial femoral condyle."

On August 9, 2016, the worker attended a follow-up appointment with his family physician, who noted that the worker was "not yet fit to return to work."

On August 10, 2016, a WCB medical advisor opined that the worker's current diagnosis was "mild age related degenerative osteoarthrosis at the right knee with an associated baker's cyst," and that the findings on MRI were "reflective of age related degeneration rather than effects of workplace influences in general or any specific injury/incident."

On August 22, 2016, Compensation Services advised the worker that in their opinion, he had recovered from the effects of his right knee injury, and would not be entitled to wage loss or medical aid benefits after August 29, 2016.

On September 1, 2016, the worker's family physician reported to the WCB that the worker recalled jumping off a two-foot ledge at work on May 18, 2016 and landing very forcefully. The worker had indicated that the pain in his knee progressed after this incident, and that he had no problems with his knee prior to the incident. On September 9, 2016, the WCB contacted the worker to discuss the information contained in the family physician's report, and confirmed that there were no witnesses to the worker jumping off the ledge and the worker had not reported the incident to anyone. By letter dated September 9, 2016, Compensation Services advised the worker that there was no change to their August 22, 2016 decision.

On September 27, 2016, a sports medicine physician provided a further medical report to the WCB at the worker's request. On November 3, 2016, Compensation Services advised the worker that they had reviewed the new medical information in consultation with a WCB orthopedic advisor, and there was no change to their previous decisions.

On January 5, 2017, the worker provided a letter from his family physician dated December 15, 2016, and requested that Compensation Services again review their decision. On January 17, 2017, Compensation Services advised the worker that the additional medical information had been reviewed in consultation with a WCB medical advisor, and there was no change to their earlier decisions.

On January 31, 2017, the worker requested reconsideration of Compensation Services' decisions by Review Office. On March 21, 2017, a representative for the employer provided a submission in response to the worker's request for reconsideration, and asked that Review Office also reconsider the decision to accept the worker's claim. On April 5, 2017, the worker responded to the submission from the employer's representative.

On April 18, 2017, Review Office determined that the worker's claim was acceptable. Review Office found that the worker had a pre-existing condition of mild age-related degenerative osteoarthrosis in his right knee with an associated Baker's cyst. They found that the worker sustained a right knee injury, being a temporary flare-up involving the pre-existing right knee degenerative changes, the onset of which was attributed to the work activities he performed between May 18 and May 26, 2016.

Review Office further determined that the worker was only entitled to benefits to June 25, 2016. They noted that the worker had advised the WCB that he was involved in a non-work related incident involving his right knee on June 26, 2016. The worker had reported that "he ran to the store and aggravated his knee," and his symptoms increased as a result. Review Office found that the reported change in symptoms was consistent with another temporary flare-up of the worker's pre-existing condition. They found that this non-work related incident led to a material change in the worker's right knee, and that the worker was not entitled to benefits beyond June 25, 2016, as his right knee difficulties were no longer related to the effects of the May 18, 2016 workplace accident.

On April 27, 2017, the worker appealed the Review Office decision that he was not entitled to benefits beyond June 25, 2016 to the Appeal Commission. On August 5, 2017, the employer, through its representative, appealed the Review Office decision that the claim was acceptable. An oral hearing was subsequently arranged to address both appeals.

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

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 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.

Employer's Position

The employer was represented by an advocate and by its WCB Coordinator. The employer's advocate provided a written submission in advance of the hearing and made an oral submission to the panel.

The employer's position was that the worker's symptoms were due solely to pre-existing age-related degeneration, and the claim is not acceptable. The employer's further position, in the event that the claim was determined to be acceptable, was that the worker is not entitled to benefits beyond June 25, 2016 when medical information showed an improvement and resolution of his symptoms, then a flare-up of his pain due to a non-compensable incident.

With respect to the mechanism of injury, the employer's advocate asked that the panel place greater weight on the worker's initial reports describing the onset of his knee pain. It was submitted that the worker consistently reported to the employer, the WCB, his physiotherapist and his physician that there was no specific injury to account for the rise of his knee pain.

The employer's advocate noted that while the worker later brought up the fact that he was working on a ramp, this was a standard, slow rise ramp and there was nothing unusual about it. The worker had already given a detailed description of his work activities on each day from May 18, and made no mention of this. Even if the worker was working on a ramp for some period of time, the employer did not believe that this would have caused a Baker’s cyst or any of the other postulated diagnoses.

The employer's advocate noted that sometime later, the worker brought up a new mechanism of injury, of jumping off a two-foot high ledge. In the employer's submission, it did not make sense that the worker would not have remembered this when he had been repeatedly asked about the mechanism of injury previously and had recited a very consistent version to the employer, the WCB and his medical practitioners. In the employer's view, the worker's initial reports should be given greater weight than these recollections some months later.

The employer's advocate submitted that the medical findings were also not suggestive of any disabling condition or any acute injury. In their view, the symptoms were consistent with non-compensable degeneration, with the Baker's cyst and mild osteoarthritis, as indicated by the WCB orthopedic advisor. It was submitted that the September 27, 2016 report from the sports medicine physician, who concluded that the worker had sustained a meniscotibial sprain which had healed, was purely speculative, and was not consistent with the nature of the complaints which were originally made, and the December 15, 2016 letter from the worker's family physician was similarly speculative and lacking in substance. It was submitted that greater weight should be placed on the medical opinions of the two WCB medical advisors.

In conclusion, it was submitted that based on the medical evidence, including the diagnostic testing and initial reporting, and the diagnosis of a Baker's cyst and osteoarthritis, neither of which are work-related conditions, the claim is not acceptable. Failing that, it was submitted that the worker was not entitled to benefits beyond June 25, 2016, as the medical information showed that the worker's complaints had largely resolved and a return to work was planned, when a new non-compensable incident occurred and was the cause of his ongoing problems.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from the panel.

The worker's position was that his injury was work-related and compensable, and he was entitled to benefits beyond June 25, 2016 and up to the time of his eventual return to work.

The worker's union representative presented information on file as it pertained to the issues on appeal. He noted that the worker's claim was accepted and the employer did not question his injury or the acceptability of his claim until almost a year after it had occurred.

The union representative submitted that the medical evidence supported that the worker's right knee condition was work-related and he continued to suffer from the effects of his compensable injury up until the time of his return to work in November 2016. He noted that the August 2, 2016 MRI showed that there was still damage after two and one half months. Long after his benefits were denied, notes and reports from his attending physicians indicated that his right knee condition was the result of the injury he sustained at work, and that he was still suffering from the effects of the original injury. At the time of the Review Office decision cutting back his benefit end date from August 29, 2016 to June 25, 2016, the worker was still off work because of his compensable injury and under a doctor's care.

It was submitted that the medical information provided by all of the worker's attending physicians confirmed there was indeed an injury, and that there was no evidence of the existence of any pre-existing condition or of any prior complaints or absences because of a right knee problem. It was noted that the worker has returned to work and there has been no recurrence of the problem with his knee.

It was submitted that no weight should be given to the reports from the WCB medical advisors, who never met or examined the worker, and whose opinions conflicted with those of the attending medical practitioners who actually examined the worker.

Finally, the union representative stated that there was no argument that the June 26, 2016 incident when he went to the grocery store may have aggravated the worker's injury, but added that such an aggravation would not have occurred if the worker had not been injured in the first place.

Analysis

Employer Appeal

Whether or not the claim is acceptable.

For the appeal on this issue to be accepted, the panel must find that the worker did not sustain a personal injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.

Based on our review of the information on file and as presented at the hearing, the panel finds, on a balance of probabilities, that the worker suffered a temporary flare-up of a pre-existing degenerative condition in the performance of his workplace duties between May 18 and May 26, 2016.

In arriving at our conclusion, the panel places weight on the initial reports of the worker's injury, being those which are closest in time to the date of injury. The panel finds that such an injury is consistent with the mechanism of injury as reported to the employer, the WCB and the treating physiotherapist at that time.

The panel notes that statements from the worker's director, his supervisor and his co-worker confirm that there was a change in the worker's condition during that period of time; that the worker had indicated that his knee started hurting around May 18, that they had noticed he was limping and struggling to perform his work duties, and that his condition became progressively worse through to May 26, 2016 when he finally went home.

The panel is further satisfied that the medical information on file supports the mechanism of injury and a finding that the worker suffered a temporary aggravation of a pre-existing degenerative condition in his right knee.

The panel notes that while a number of other diagnoses were suggested at various times in the course of the file, we are unable to accept those diagnoses based on the medical information on file.

In arriving at our decision, the panel places significant weight on the November 2, 2016 opinion of the WCB orthopedic advisor, who reviewed the medical information on file and opined:

There is no objective orthopaedic evidence that the workplace injury caused damage to the menisco-tibial ligaments of the right knee.

Initial physiotherapy and medical information suggested swelling of the knee, tenderness of the medial and lateral femoral condyles and popliteal swelling.

The most likely explanation of symptoms is a flare up of an effusion of the right knee causing pain and swelling, and enlargement of a Baker's cyst. There is no [clinical] evidence that pre-existing chondromalacia of the medial femoral condyle was physically aggravated or enhanced.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.

The employer's appeal on this issue is dismissed.

Worker Appeal

Whether or not the worker is entitled to benefits after June 25, 2016.

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 June 25, 2016 as a result of his May 18, 2016 workplace incident.

Based on the information which is before us, the panel is satisfied that the worker is entitled to wage loss and medical aid benefits from June 25, 2016 up to and including July 11, 2016.

The panel notes that the worker's benefits were ended following an incident on June 26, 2016. In response to questions from the panel with respect to that incident, the worker said that "the incident had been taken totally out of context." The worker said that in the course of a conversation, he had indicated that he had gone to the store and it was raining. As he got out of the car, he was going to try to run to the store. He made it a few steps, but it bothered his knee, so he walked the rest of the way to the store. The worker said that his knee was sore after that, but it was not any worse as a result.

The panel accepts the worker's evidence in this regard, and is satisfied that the June 26, 2016 incident did not constitute an intervening event or result in a change in the worker's diagnosis. The panel notes that the medical evidence on file does not support a change in diagnosis as a result of, or following, that incident.

Information on file shows that at a meeting on June 30, 2016, the worker, a union representative, and the employer all agreed that the worker was to return to work on a graduated return to work schedule starting July 4, 2016. The panel notes that everyone agreed at that time to restrictions of "no squat, kneeling or repetative (sic) ladder work, limit standing/walking 30 min. followed by 15-20 sitting."

The evidence shows that the worker attempted to return to work on July 5, 2016, but went home due to difficulties walking. At the hearing, the worker stated that he had been just walking around, waiting for the safety officer to arrive, "just walking around, go get a coffee, do this, do that, talking to people. And just standing on my leg, it just irritated it mostly. And then I said, no I can't do this, then I let [name] know, then I went home."

Information on file shows that the WCB spoke to the worker's physiotherapist later that day, and it was noted that the physiotherapist advised that "the duties should be fine as long as he takes regular breaks from walking." A memo to file dated July 11, 2016, notes the employer's disability management representative had contacted the worker to advise him that as no changes were made to his restrictions and he is allowed to take frequent breaks, he was offered the opportunity to come back and do light duties. The worker had insisted he would be seeing his doctor that day and he was refusing to return to work. A physician's report dated July 11, 2016, indicated that he was capable of return to work with modified work, with a restriction of "sitting only."

The panel notes that while there is a difference between the physiotherapist and the family physician in terms of the appropriate restrictions, there is no dispute that the worker was capable of returning to work on modified duties. Based on our review of the evidence, the panel is satisfied that the restrictions as proposed by the physiotherapist were appropriate and that the worker was capable of returning to work based on those restrictions. The panel notes that the restrictions as provided by the physiotherapist both before and after July 5, 2016 were essentially the same. The panel finds that the restriction of sedentary duties as provided by the worker's family physician was overly cautious, and was not medically supported.

The panel notes that the worker relied on the restrictions put forward by his family physician, and refused to return to work on that basis. The panel finds that the worker's decision to rely on the restrictions provided by his physician, as opposed to those which had been provided by his physiotherapist, and his refusal to return to work after July 11, 2016 on that basis was unreasonable.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid from June 25, 2016 to July 11, 2016 as a result of his May 18, 2016 workplace incident. The panel therefore finds that the worker is entitled to benefits after June 25, 2016 to July 11, 2016 inclusive.

The worker's appeal on this issue is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of July, 2018