Decision #62/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on April 11, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
On November 30, 2017, the worker reported to the WCB that he injured his left knee in an incident at work on May 22, 2016, and reported the injury to the employer on May 23, 2016. He described the incident as follows:
Unsure of exact date - about a month prior to seeing the Doctor.
We were moving bags of seed grain on pallets. We had the pallet jack partly pulled out. As I stepped in between the forks to get to the other side my left foot caught under one of the forks. I fell forward. My knee twisted as I fell and I felt a pop. I stopped my fall when my hands hit the floor.
Witness - [name and telephone number]
When I reported the incident to [employer] in 2016 he shrugged it off. I was not offered a green card. Three months ago he said to me I should have filled one out.
I continued working after it happened. I rested my knee when I was off work. I thought I just tweaked it and it would clear itself up. It was still bothering me and the pain was increasing after two weeks so I booked an appointment to see my Doctor. I stopped climbing into the box of the truck to level the load because the twisting motion on my knee increased the pain. Getting in and out of the semi became very difficult.
Now every step I take makes me limp. There is pain with every step. I am icing. Everything thing (sic) I try isn't helping anymore. I get some relief when I lay down and I am not using my left leg.
For the most part I just hobbled. They didn't want to pay me to load the truck so the first load was that was done overnight and I drove the trucks. I was doing three trips a day to the city. At times driving to [location].
I only used the clutch to get going so driving was manageable.
The employer filed an Employer Injury Report with the WCB on December 12, 2017, in which they stated that an injury was "never officially reported to employer."
A Doctor's First Report from an examination of the worker on June 22, 2016 was provided to the WCB on November 30, 2017. The report indicated that the worker reported to his family physician that he had injured his left knee "…6 weeks ago twisted." The treating physician queried a cruciate injury, ordered an x-ray and referred the worker for an MRI.
The report of the June 22, 2016 x-ray of the worker's left knee indicated:
There is slight narrowing of the medial femorotibial compartment consistent with early OA [osteoarthritis]. No fractures are identified.
The MRI of the worker's left knee was done on August 25, 2016, and revealed, in part:
1. Degenerative tearing medial meniscus with meniscal extrusion. High grade chondromalacia medial compartment. Moderate joint effusion with at least one small intraarticular body.
2. Patellar tendinosis.
In a telephone conversation with a WCB adjudicator on December 12, 2017, the worker confirmed the mechanism of injury as "Moving pallets of seed with pallet jack, wheel it around by hand, stepped in between pallet jack, leg got stuck in pallet, leg twisted and he fell to the ground." The worker advised the WCB adjudicator that his co-worker was working with him at the time and saw him fall. He further advised the WCB that he resigned from his employment on October 27, 2017. On December 12, 2017, the WCB attempted to contact the co-worker but the telephone number provided was not in service.
On December 20, 2017, the WCB was provided with the treating orthopedic surgeon's chart notes, including the September 14, 2016 letter from the worker's family physician referring the worker to the orthopedic surgeon for consultation. It was noted in the referral letter that the August 25, 2016 MRI showed a degenerative medial meniscal tear, Grade IV chondromalacia medial compartment and joint effusion with at least one loose body. The family physician provided the diagnosis of "left knee degenerative joint disease, ? aggravated…" and queried whether the removal of loose bodies noted on the MRI would help the worker's symptoms.
On January 5, 2017, the orthopedic surgeon reported to the family physician that:
On physical examination he has a full range of motion and has pain to palpation along the medial joint line. No other pertinent clinical findings.
He had previous x-ray in June which demonstrated slight narrowing of the medial femoral tibial compartment. He has also had an MRI scan which demonstrated degenerative tearing of the medial meniscus with high-grade chondromalacia in the medial compartment. There was also note made of at least one small intraarticular body. We did do another standing x-ray today to have a comparison of views from previous x-ray. There was note made of moderate amounts of joint space narrowing of the medial compartment of the knee, consistent with moderate amounts of OA.
Discussion was undertaken with regards to the options for management of his left knee. It is felt that a knee arthroscopy would be at best, a 50-50 proposal for pain relief. He has an intraarticular body which could be causing some mechanical symptoms, so arthroscopy is not completely ruled out. The results would e (sic) somewhat unpredictable and he has a significant amount of degenerative change in the medial compartment, which may not respond to arthroscopy…
On December 28, 2017, Compensation Services advised the worker that his claim was not acceptable. Compensation Services noted that the medical information received was consistent with the diagnosis of left knee degenerative joint disease and did not indicate that a work-related injury was reported or sustained.
On February 9, 2018, the worker provided the WCB with a copy of a Physiotherapy Initial Assessment report of an assessment conducted on August 8, 2016 and requested that the WCB review his claim again. The physiotherapist noted that the worker reported twisting and hyperextending his left knee moving a pallet jack and complained of intermittent medial left knee pain which was aggravated by prolonged walking, stairs and twisting. The physiotherapist queried whether the worker had a left medial meniscus tear and noted that the worker attended for treatments on August 8, 16, 23 and 30 and September 6, 2016.
On February 14, 2018, during a discussion with the WCB adjudicator, the worker played a recording of a conversation he had with the claimed witness, who acknowledged the worker was on the dolly and remembered that day, but declined to provide a statement for fear of losing his job.
On February 21, 2018, Compensation Services advised the worker that the new information had been reviewed but the previous decision that his claim was not acceptable remained unchanged. Compensation Services noted that there was a delay of three months in seeking medical treatment from physiotherapy and that they could not accept the recorded information as the witness was not aware their conversation was being recorded and they could not confirm who the worker was speaking to at that time.
On March 26, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker expressed dissatisfaction with the WCB's investigation of his claim, notably that the WCB did not make more effort to contact his co-worker. The worker also noted that he notified his employer about the workplace accident when it occurred but his employer walked away and did not offer him a WCB form to complete.
On April 9, 2018, Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the worker's advice that he was not aware of the precise date when his left knee difficulties began. Review Office noted that the worker did not attend a doctor until June 22, 2016 and his initial appointment with his family physician did not refer to him having been injured at work. Review Office found that the worker's delay in reporting the injury, from May 2016 to November 30, 2017, was significant. Review Office also placed weight on the imaging results and the orthopedic surgeon's report that the worker had a significant amount of degenerative change in his medial compartment. Review Office concluded that there was insufficient evidence to support that the worker sustained an injury as the result of a workplace accident.
On August 28, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
"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,
(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.
WCB Policy 188.8.131.52, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation. The Policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
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.
The worker was self-represented and was accompanied by his spouse at the hearing. The worker made a presentation at the hearing and answered questions from the panel. His co-worker attended under subpoena and responded to questions from the worker and the panel.
The worker noted that prior to his injury, he had never had any issues with his knees. When he tripped and fell over the pallet jack on the day of the injury, he heard and felt a pop. He said he could still walk after that, but with pain, and thought he had sprained his knee.
The worker said that his co-worker was working directly with him at the time, and was within two feet of him when he fell. He saw the employer two days later, and mentioned to him that he had tripped and fallen on the pallet jack, but the employer laughed and just told him to walk it off.
The worker stated that as he could still do his job, he did not put a lot of thought into seeing a doctor. He continued to work, but as the pain got progressively worse, he made an appointment to see his family physician. He saw his physician on June 22, 2016, who ordered an MRI. The physician documented that the worker slipped and fell, but unfortunately did not document that this was a workplace injury. The worker said he had not recorded the date of the accident, and told the doctor that it would have been four to six weeks earlier. He said he also mentioned to his family physician that he tripped and fell at work, but that he did not think it was going to result in a claim because he could still function, that he had just sprained it and he was hoping to "get a fix for it."
The worker said that while waiting for the MRI, he made an appointment with and saw a physiotherapist on August 8, 2016 to get some relief. After five appointments, he stopped going for physiotherapy as it was not helping.
The worker acknowledged that the August 25, 2016 MRI showed degenerative conditions or wear and tear in his knee. He said that after the MRI, he saw an orthopedic surgeon, who he hoped could repair his knee surgically, but the surgeon said that there was probably a 50/50 chance that it would do any good, and recommended against the surgery. He was then referred to another orthopedic surgeon, for a further consultation regarding knee replacement surgery. He said that he underwent knee replacement surgery on May 17, 2018, which was followed by physiotherapy and rehabilitation, and he started working again on January 15, 2019.
The worker said he believed he tore his meniscus when he tripped and fell, and that his doctors all told him he had a torn meniscus. His doctors also all said he had early signs of degeneration, or wear and tear, which he did not dispute. He submitted, however, that he had never had any trouble with his knee or felt any discomfort until the date of the accident. The worker said that from the date of the injury until his surgery, he limped every step. Every step he took from that date forward hurt; "Just walking flat. Twisting motion was the, probably the most pain, caused the most pain…I could do stairs. It was sore, just like walking, it was -- everything I did was sore to the knee, but twisting was the main pain." He said that the knee was also not stable.
The worker noted that he quit his employment on or about October 27, 2017. He said he and his employer had been locking horns on a regular basis, with the employer complaining that the worker was not able to do everything he thought the worker should be doing or doing it as fast as he wanted. The worker stated that he filed his claim with the WCB shortly after that, as the injury he had suffered was a workplace injury.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding.
Based on our review of all of the information before us, on file and as presented at the hearing, the panel is satisfied that there is sufficient evidence to establish that the worker suffered an injury by accident arising out of and in the course of his employment.
The panel is satisfied that the evidence clearly shows that something happened to the worker's knee in the course of his employment which significantly changed the condition and function of his knee. The panel finds that this change in function happened as a result of a workplace accident in May 2016 where he twisted his knee and fell while working with a pallet jack, as described by the worker. The worker described experiencing pain and having difficulty walking from that time forward, particularly with twisting motions, which indicates a change in pathology at the date of the accident and led to him requiring medical aid.
The worker did not record the date of the accident, but was very clear in his evidence as to the particular incident which resulted in this change in his functional ability. While the exact date is unclear, the panel accepts that the accident occurred on or about May 22, 2016.
The panel finds that the worker's evidence as to what occurred and the change in his symptoms is corroborated by the co-worker's testimony at the hearing, which is consistent with the audio recording of a conversation he had earlier with his co-worker. The panel notes that the co-worker, who testified under subpoena, confirmed that he remembered the incident, noting that they were in a Quonset that day, working right beside each other, and the worker was assisting him to move containers with a pallet jack. The co-worker said he did not actually see the worker fall, but he recalled the worker saying that he injured his knee at that time. The worker said his knee was sore and he was limping after that. The co-worker said they continued to work together subsequently and the worker did the same job, but limped a bit and said his knee was sore.
While the employer noted in the Employer Injury Report that the injury was "never officially reported to employer," the panel accepts the worker's evidence that he mentioned the accident to the employer shortly after it occurred. The panel notes that the worker said he reported it not only to the farmer, but also to his spouse and son who were part of the farm operation.
The evidence further shows that the worker sought medical aid when his condition worsened. He made an appointment with and saw his family doctor on June 22, 2016, who noted that the worker was complaining that he twisted his left knee, and his knee felt unstable. The worker subsequently sought treatment from a physiotherapist on August 8, 2016, who noted the worker's description of his injury as "Twisted and hyperextended left knee moving a pallet jack." The panel places significant weight on this report of the mechanism of injury to the worker's healthcare provider, particularly as it was provided by the worker at a time when he was hoping his injury would get better and not for the purposes of establishing a WCB claim.
In light of the foregoing, the panel is satisfied that the worker suffered an injury to his left knee as a result of his fall at work on May 22, 2016. The panel notes that different diagnoses have been suggested, and based on the information which is before us, we are unable to formally accept any particular diagnosis at this time. The panel recognizes, and the worker acknowledged, that the August 25, 2016 MRI of the worker's left knee shows significant pre-existing degenerative conditions. In the circumstances, it will be left to the WCB to determine the applicable diagnosis or diagnoses, the extent to which the worker's left knee difficulties were caused, aggravated or enhanced by his workplace injury, and any ongoing responsibility for the claim.
In conclusion, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.
The worker's appeal is granted.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of June, 2019