The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his right knee difficulties as being a consequence of the June 15, 2017 accident. A hearing was held on November 15, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's right knee difficulties should be accepted as being a consequence of the June 15, 2017 accident.

Decision

That the worker's right knee difficulties should not be accepted as being a consequence of the June 15, 2017 accident.

Background

In his Worker Incident Report submitted June 19, 2017, the worker reported that he injured his left shoulder and neck in a June 15, 2017 workplace accident, as follows:

I was on at (sic) 12 foot ladder so I went up the ladder and I looked up and I lost my balance I was about 2 ft. up. I went off the ladder sideways and I stepped onto the floor from 2 ft. down lost my footing and I jarred myself into the sharp corner of the window (it had a metal edge) inside the house.

The worker saw his family physician on June 19, 2017. The physician noted that the worker had near full range of motion but very painful, tender anterior lateral joint and back of deltoid muscle, and queried a muscle tear. An x-ray of the worker's left shoulder showed no fracture, mild degenerative change, and irregularity "suggestive of a previous shoulder dislocation." The worker's claim was accepted and payment of wage loss and other benefits commenced. A

subsequent MRI of the worker's left shoulder on July 25, 2017 showed a "very large full-thickness rotator cuff tendon tear."

At a later appointment with his family physician on August 28, 2017, the worker reported:

Pain medial aspect of his rt knee which has been niggling since his injury following a fall form (sic) the ladder but has now become more swollen and tender on the medial aspect. Previous arthroscopic surgery rt knee.

A medial collateral ligament tear of the worker's right knee was queried and the worker was referred for an MRI.

On August 29, 2017, the worker advised the WCB that he began to experience pain in his right knee while on a walk recently. His symptoms persisted and he subsequently developed a lump on the inside of the knee. The worker denied that a specific incident or accident occurred to account for his right knee difficulties. The worker said he thought he might have hit or twisted his knee at the time of the workplace accident, but only noticed the symptoms now since his shoulder was getting better.

By letter dated August 29, 2017, Compensation Services advised the worker that responsibility would not be accepted for his right knee difficulties. Compensation Services confirmed that the worker's claim had been approved for a left rotator cuff/longhead bicep strain and impingement, but were unable to establish a causal relationship between the development of the worker's right knee symptoms and the workplace incident on June 15, 2017.

On February 24, 2018, the worker underwent an MRI of his right knee which indicated "Moderately severe osteoarthritis. Remote ACL tear."

In a telephone conversation with the WCB on April 3, 2018, the worker indicated he injured his right knee when he fell from the ladder on June 15, 2017, but was not too concerned about it at the time. His left shoulder took the brunt of the injury and he was more concerned with treatment for that. He said that he mentioned to the adjudicator in July 2017 that he had also injured his knee.

In a further telephone conversation on April 4, 2018, Compensation Services advised the worker that they had reviewed his file in its entirety, and were unable to change their previous decision. Compensation Services noted that the information on file showed the worker first mentioned his right knee difficulties to his treating physician on August 28, 2017 and to the WCB on August 29, 2017. By letter dated April 4, 2018, Compensation Services confirmed that all information on file had been considered, and there was no medical evidence to support that the worker's current right knee difficulties were related to his June 15, 2017 injury.

On April 5, 2018, the worker spoke to a WCB Sector Services manager and advised that he believed he might have discussed his right knee difficulties earlier with his family physician. The WCB wrote to the worker's family physician to request a narrative report of the worker's right knee difficulties, including information as to when the worker first mentioned such difficulties. On April 6, 2018, the worker's family physician provided the WCB with his August 28, 2017 chart note, indicating that the worker first reported right knee difficulties on that date. On April 12, 2018, Compensation Services advised the worker that the report from his physician duplicated information previously considered and no change to their initial decision to deny responsibility for his right knee difficulties was warranted.

On April 17, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that all of the injuries he sustained happened on June 15, 2017, but he did not realize how injured his knee was at that time.

On May 14, 2018, Review Office confirmed that responsibility should not be accepted for the worker's right knee difficulties. Review Office placed significant weight on the information from the worker's family physician that the first mention of the worker's right knee difficulties was on the August 28, 2017 visit; that the worker had an in-person meeting with the WCB on August 8, 2017 but did not mention his right knee difficulties at that time; and that the worker made no mention of right knee difficulties at the physiotherapy sessions he attended through June and July 2017. Review Office acknowledged that workers sometimes do not mention all of their injuries initially, as a certain body part may be more acute and painful. Review Office noted, however, that in this case, the worker had not reported a right knee injury to any party for more than two months after the workplace accident. It was also noted that the worker had a remote ACL tear, which was a significant injury. Review Office was unable to causally link the worker's right knee difficulties to the workplace accident.

On May 30, 2018, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

The worker has an accepted claim for an injury that occurred at work on June 15, 2017. The worker is appealing the WCB's decision that his right knee difficulties are not a consequence of the June 15, 2017 workplace accident.

Worker's Position

The worker was self-represented. The worker made a presentation at the hearing and responded to questions from the panel.

The worker's position was that he injured his right knee at the time of the workplace accident on June 15, 2017 and his appeal should be granted.

The worker described the June 15, 2017 workplace accident. He said he was climbing the ladder with a pole in his right hand, and when he got to the third step, he looked up and lost his balance. The worker said he did "a bunch of damage" when he came down the ladder. He was hanging onto the ladder with his left hand and "pretty much jumped off the three steps" as the ladder was starting to tip and he had already lost his balance. The worker said that when he jumped down, he was going backwards, and he hit the floor with his right leg. The floor was hardwood, with tarps on it, and when his foot hit the floor, he slipped and went backwards into the corner of the window. The worker said he had pain right away, "like I couldn't even lift my arm up. And I feel in (sic) my right leg, like my knee, I know I definitely hit the floor with that…"

The worker said he did not finish his work that day because he was in so much pain. He indicated that his first priority was to determine what had happened to his shoulder and how bad it was. He went to see his doctor within the next few days, then reported the incident to the WCB and was told to stay off work after that.

The worker stated that after the first couple of weeks had gone by "I've got myself together and now I'm feeling my knee." He said he phoned the adjudicator in July 2017, and told him he was having difficulties with his right knee, that it had swelled up and there was something wrong. He could not understand why the adjudicator had not made note of this on the claim file.

The worker said he finally went to see his doctor on August 28, 2017 with respect to his knee difficulties. He acknowledged that he should have gone to his doctor before that, but reiterated that he had already reported he was having difficulty with his knee to the WCB.

In conclusion, the worker stated that he knows he felt his knee injury right away and that it happened at the same time as his other injuries, coming off the ladder on June 15, 2017, and should be accepted.

Employer's Position

The worker was self-employed.

Analysis

The issue before the panel is whether or not the worker's right knee difficulties should be accepted as being a consequence of the June 15, 2017 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right knee difficulties were causally related to the June 15, 2017 workplace accident. The panel is unable to make that finding.

The panel notes that a number of right knee conditions are identified in the February 24, 2018 MRI and in the treating physician's most recent report dated August 14, 2018, including a remote ACL tear, degenerative changes to the medial meniscus and moderately severe osteoarthritis. In response to questions from the panel, the worker advised that the injury or condition he was focusing on as having been caused by his workplace accident was his right knee ACL tear. His position was that he tore his ACL when he came off the ladder on June 15, 2017. The panel notes that there was no suggestion by the worker that any other right knee conditions were related to the workplace accident.

Having carefully reviewed all of the information, on file and as presented at the hearing, the panel is not satisfied that the worker's right knee ACL tear was a result of his June 15, 2017 workplace accident.

The panel finds that the worker did not report an injury to his right knee or symptoms consistent with an ACL injury to his right knee to his treating physician until August 28, 2017. In responding to questions at the hearing, the worker said that thinking back, he thought he even mentioned to his physician "when I got hurt, at the time I got hurt, that I, my knee is hurting me too, but I'm concerned about my shoulder" and later stated that "I know for sure I mentioned my knee to my doctor, with all this, with my shoulder injury." The panel finds that the worker's evidence in this regard is not supported by, or consistent with, other information on file and at the hearing. The panel places weight on the report of the treating physician, who was specifically asked by the WCB to review his chart notes to determine when the worker first mentioned his right knee difficulties and the date of his first and subsequent treatments for his knee, and indicated in response that the first reference to right knee symptoms or difficulties was in his August 28, 2017 chart notes. The panel would expect that if the worker had initially reported a right knee or ACL injury, his complaint would have been noted and checked out by the physician at that time.

The panel further finds that the first time the worker mentioned experiencing right knee difficulties to the WCB was in a telephone conversation with the case manager on August 29, 2017. In a memorandum to file of that conversation, the case manager reported that the worker had advised that while "on a walk recently [could not provide the exact date]; his right knee began to hurt" and that "he denies a specific incident or accident to account for his current right knee difficulties." The panel notes that everything the worker described at the time seems to be of a more recent onset.

The panel acknowledges the worker's submission that he mentioned his right knee injury to the adjudicator in July 2017. However, the panel is unable to accept that submission. The panel notes that information on file documents numerous conversations between the worker and the adjudicator or case manager between the time of their initial contact with the worker on June 20, 2017 and August 28, 2017. There is no mention in that documentation of the worker's right knee or any right knee difficulties. The panel places weight, in particular, on a lengthy memorandum of the case manager's meeting with the worker at the worker's home on August 8, 2017, which indicates that the mechanism of injury was reviewed with the worker and he was asked about his symptoms, and made no reference to any knee injury or difficulties at that time.

In addition, while the worker was also assessed and treated by a physiotherapist from June through August 2017, there is no mention of anything with respect to right knee difficulties in the physiotherapist's initial assessment report dated June 21, 2017 or subsequent reports on file. The worker stated at the hearing that he also mentioned his knee to his physiotherapist when he started physiotherapy, but she did not write this down. Again, this statement is not supported by the information on file.

The panel would note that even if we were to find that the worker began noticing right knee difficulties in July 2017, we are not satisfied that those difficulties can be linked to his June 15, 2017 workplace accident. The panel understands that a "complete tear of the ACL" (as it is further described in the MRI report) is a major injury, with significant symptoms which would typically show up right away. In the panel's view, it does not make sense that the worker would not have noticed and reported or pursued treatment for such an injury much sooner if it had occurred at the time of the June 15, 2017 accident.

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker's right knee difficulties were causally related to his June 15, 2017 workplace accident.

The panel therefore finds that the worker's right knee difficulties should not be accepted as being a consequence of the June 15, 2017 accident.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of January, 2019