The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. A hearing was held on May 15, 2019 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker reported injuring her left knee at work on October 26, 2017 in an incident she described as:

I was coming up the stairs and as I nearly reached the top I stepped with my left foot and heard a crack and almost pasted (sic) from the pain. I went to the lunchroom and got really hot and shaky. My husband came and picked me up and took me to the hospital. I did not finish my shift.

The worker sought medical attention right after the incident occurred. The worker reported to the attending physician that she was "Walking up stairs something cracked in L (left) knee". The physician noted that the worker was very tender at the medial lateral joint and flexion and extension were painful. It was further noted that the worker had already had an x-ray and she was referred for an MRI. It was recommended that she remain off work until November 4, 2017. The worker had an MRI study conducted on November 1, 2017 that identified "Complete radial tear posterior horn medial meniscus."

On November 8, 2017, the worker's claim was accepted by the WCB and payment of wage loss and medical aid benefits started.

The worker's claim was reviewed by a WCB medical advisor on December 14, 2017 in response to questions asked by her WCB case manager. The WCB medical advisor opined, in part:

1. The diagnosis is a left medial meniscus tear.

2. Meniscus tears can be managed surgically or non-surgically/conservatively depending on upon choice of treatment…

3. Reasonable restrictions with a left medial meniscus tear would include: 

• Avoid work that involves prolonged weightbearing on the left leg 

• Avoid stairs 

• No kneeling or crawling 

• No squatting or lifting from the ground 

• No carrying greater than 20 pounds 

• Should be provided opportunity to vary posture and elevate left leg as required

4. The MRI report did indicate the presence of some intrasubstance degenerative change affecting the meniscus. This change would render the meniscus vulnerable to tear. The report also indicated the presence of degenerative changes in the form of chondromalacia. It is likely the case that these changes will prolong recovery to some extent.

The worker returned to work on a graduated basis, with modified duties on December 18, 2017 and returned to her full regular duties on January 27, 2018.

A WCB medical advisor reviewed the worker's file on January 24, 2018 and opined:

1. Based (sic) file review, with particular attention to the mechanism of injury and the above factors, it is likely that [the worker] had a left medial meniscus tear and other degenerative changes which pre-dated the October 26/17 workplace event. On the date of the workplace event, [the worker] experienced symptoms of her pre-existing changes but it is not probable that she materially enhanced the changes. She sustained an aggravation of the pre-existing changes on October 26/17.

2. It is likely the case that recovery from the workplace injury occurred within a time frame generally anticipated.

3. It is likely that symptoms that followed the workplace injury occurred in relation to the workplace injury. Based on recent medical reporting, it is probable that recovery from the effects of the workplace injury has essentially occurred.

On February 6, 2018, the employer was advised by the WCB that the information on the worker's file established a relationship between the worker's left knee difficulties and an accident as defined by the Act and as such, the worker's claim was acceptable. The employer was further advised that due to the fact that a pre-existing knee condition had been established for the worker, the WCB was reviewing the employer's eligibility for cost relief. On February 23, 2018, the employer was advised that the WCB had reviewed the worker's claim, related to her pre-existing condition, and as the worker's claim was of short duration and the worker returned to essentially her regular duties, it was determined that the employer was not entitled to cost relief.

The employer requested reconsideration of the WCB's decision to accept the worker's claim and pay wage loss benefits to Review Office on March 22, 2018. On September 10, 2018, the employer provided a submission to Review Office in support of their request. The employer noted disagreement with the WCB's determination that the worker's "injury arose out of the employment". The employer further provided:

We submit the well documented worker's history of left knee problems was a significant contributing factor and that her injury could have occurred anywhere, at any time. Not every injury occurring in the course of employment arises out of employment. The requirements of the job did not create an unusual circumstance which put the worker at any greater risk than what she would expect to encounter on a regular daily basis. There was no special condition created by work which differed from what she would normally experience in everyday life…

Review Office determined on October 31, 2018 that the worker's claim was acceptable. Review Office found that there was a work-related hazard that gave rise to the worker's injury. The worker reported injuring herself while going up some stairs at work. Review Office was of the opinion that movement on stairs is demanding on a person's musculoskeletal system and therefore, the stairs were considered a hazard of the employer's premises and created a risk to the worker. The mechanism of injury described by the worker, her immediate reporting of the injury to her employer and the fact that she sought medical treatment on the same day, supported that the worker suffered an injury on October 26, 2017 and her claim was acceptable.

The employer filed an appeal with the Appeal Commission on November 1, 2018. An oral hearing was arranged.

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.

Definitions

Accident

1(1) "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; (accident)

Compensation payable out of accident fund

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…

WCB Policy 44.05, Arising out of the employment

Under the Act, benefits and services are available to workers who suffer a compensable workplace injury or illness. To be compensable, it must have been the result of an accident arising out of and in the course of the worker’s employment.

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment - that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

While workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

WCB Policy 44.05.20, General Premises

The term "premises" means the entire geographic area devoted by the employer to the industry in which the worker is employed. The employer's premises may be defined as the buildings, plant, or location in which the worker is reasonably entitled to be during the specific course of or incidental to the employment. Subject to the individual merits of each claim and specific exceptions noted in this policy, the employer's premises may include any land or buildings owned, leased, rented, controlled, or used (solely or shared) for the purposes of carrying out the employer's business.

WCB Policy 44.10.20.10, Wage Loss Eligibility

(a) 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 WCB will accept responsibility for the full injurious result of the compensable injury. (b) When a worker has: 1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid. Evidence concerning the progression of a pre-existing condition based on statistical norms (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, when it is determined that the worker's inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

Worker's Position

The worker did not participate in the hearing.

Employer's Position

The employer representative provided their position in writing via a September 10, 2018 letter to WCB and presented and clarified details by teleconference on the hearing date of May 15, 2019.

The representative submission included the following comments:

"There was no special condition or hazard created by work which differed from what she would normally experience in everyday life."

"Evidence of a pre-existing condition should preclude acceptance of a claim".

The employer's position was that the worker's claim should not be upheld as the injury was not caused by the worker's employment.

Analysis

In the panel's view, to make a ruling on the employer's assertion that the only qualifying "hazard" of the workplace would be an egregious safety violation, or a "faulty" workplace environment would essentially redefine the base principles of the workers compensation system which is a no-fault system. The panel is unprepared to do so. In our view, hazards also include anything from external hazards such as uneven terrain to the very nature of the job duties themselves which may include body movements or positioning that create biomechanical risks that could lead to injury. In this case, the employer confirmed that the worker's description of the accident was accurate; she was climbing stairs in the course of her employment and suffered acute knee pain, while transferring her weight to her left foot on the top step.

The evidence further discloses (and was confirmed by the employer's representative) that the act of climbing steps placed an unusual load on the worker's knee while she was performing her job duties, on an already compromised knee and with due regard to her body habitus. In the panel's view, this mechanism of injury is consistent with the later diagnosed aggravation of a pre-existing degenerative left knee condition.

The panel finds that all the elements required to establish a claim under Sections 1(1) and 4(1) of the Act have been met. The worker's claim is acceptable, and the employer's appeal is denied.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of July, 2019