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 wage loss and medical aid benefits in relation to the June 15, 2015 accident. A hearing was held on March 27, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits in relation to the June 15, 2015 accident.

Decision

That the worker is not entitled to wage loss or medical aid benefits in relation to the June 15, 2015 accident.

Background

On January 24, 2018, the worker filed a Worker Incident Report with the WCB, reporting that he injured his right knee in an incident at work on June 15, 2015. He described the incident as:

I jumped off a load onto a wood/aluminum deck, it was about a six foot jump. I landed and then felt a sharp pain in my inside right knee. I finished my shift.

The worker noted that he reported the incident to his employer on June 16, 2015. The employer advised the WCB that they were not aware the worker had an injury, and filed an Employer's Accident Report with the WCB on January 24, 2018.

In an initial discussion with the WCB on February 21, 2018, the worker confirmed the mechanism of injury and noted that he reported the injury to his supervisor the day after the accident. He further advised that his supervisor was aware of the difficulties with his knee, including the worker's need to miss work due to pain, and that his supervisor had retired. The worker advised the WCB that he sought medical treatment from his family physician who arranged for x-rays and an MRI to be done, then referred the worker to an orthopedic surgeon. The worker reported that he had surgery on his right knee in June 2016.

The WCB received a report from the worker's family physician in respect of an appointment on August 6, 2015, which indicated that the worker reported he had "pain with walking or prolonged standing." The physician noted full range of motion and no instability. An x-ray was taken of the worker's right knee which indicated: "The joint spaces are well maintained. There is no evidence of a joint effusion. No bone or joint abnormality is observed…." The worker was diagnosed with a right knee strain. At a follow-up appointment on September 24, 2015, the physician noted that the worker "…still has tenderness over the inner joint line of his right knee…" The physician queried whether the worker had a medial meniscus tear, and referred him for an MRI.

An MRI of the worker's right knee was performed on March 16, 2016. The MRI showed a "Tiny medial tear involving the body of the medial meniscus…" On April 6, 2016, the worker attended an appointment with the orthopedic surgeon. The orthopedic surgeon reviewed the MRI results with the worker and a right knee arthroscopy was arranged. The worker underwent a right knee arthroscopy and partial medial meniscectomy on June 13, 2016.

The WCB spoke to the worker's supervisor from the time of the workplace accident, who confirmed that the worker advised him shortly after the accident that he hurt his knee. The former supervisor further noted that he did not know of the worker missing any time because of his knee injury or the worker having any trouble, and advised that the worker continued working his regular duties.

On February 27, 2018, Compensation Services advised the worker that his claim was acceptable for an injury to his right knee but he was not entitled to wage loss or medical aid benefits. Compensation Services noted that the worker delayed in seeking medical treatment, did not make further complaints to his supervisor and continued working his regular duties.

On May 28, 2018, the worker requested that Review Office reconsider Compensation Services decision. He submitted that he did not recover from his June 15, 2015 right knee injury, but continued to have knee pain. Further medical testing showed a right knee tear, resulting in surgery, and he felt he should be entitled to lost wages.

On August 3, 2018, Review Office determined there was no entitlement to wage loss and medical aid benefits. Review Office noted that other than tenderness, the physician's findings during examination of the worker's knee on August 6, 2015 were essentially normal and it was not until September 24, 2015, or 15 weeks after the workplace accident, that the worker's treating physician queried whether the worker had a meniscus tear. Review Office further noted that while the worker advised he was in pain and having difficulties with his knee after the workplace accident, his employer/former supervisor did not recall the worker making ongoing complaints of right knee difficulties. Review Office found that the evidence did not establish a causal connection between the workplace accident of June 15, 2015 and the worker's ongoing difficulties diagnosed as a right medial meniscus tear.

On October 1, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical and other information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 24, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

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

The worker's position was that the evidence supports there is a causal relationship between the June 15, 2015 workplace accident, the onset of the worker's right knee difficulties and the worker's ongoing right knee difficulties, which were confirmed as a medical meniscus tear, such that the worker is entitled to wage loss and medical aid benefits in relation to that accident.

The worker's representative noted that the worker's former supervisor confirmed that the worker mentioned his injury and the mechanism of injury and that the accident would have been in June 2015. While the supervisor said he did not recall ongoing complaints when the WCB contacted him in February 2018, the worker's own evidence was that his supervisor was aware of his ongoing difficulties, that he kept telling him that he was in a lot of discomfort and pain, and that he called to tell him he could not make it into work because his knee was too sore.

It was submitted that clinical notes from the worker's family physician dated August 6 and September 24, 2015 confirm that the worker reported his accident of jumping off a truck and injuring his knee, that tenderness was noted and ultimately a medical meniscus tear was queried and confirmed.

The treating orthopedic surgeon ordered an MRI, which confirmed a radial tear involving the body of the medial meniscus. The surgeon performed a right knee arthroscopy on June 13, 2016, and operative findings confirmed that that the worker had a medial meniscus tear which was radial in nature. The operative findings confirm that there were no pre-existing conditions to cause the worker's difficulties.

The worker's representative submitted that this radial tear is the compensable injury and is related to the accident. The representative submitted that literature provided in advance of the hearing confirmed that radial tears are defined by a history of a sudden onset of joint-line pain generally associated with an adequate knee injury. It was submitted that the evidence supports the worker's onset of symptoms and ongoing difficulties were caused by such an injury, with sudden and ongoing joint-line pain.

The worker's representative submitted that it is unfair to disallow benefits because a worker continued to suffer from the effects of an accident and it took time for medical procedures to confirm the correct diagnosis which resulted from the workplace accident. It was submitted that the objective medical evidence in this case confirms the relationship between the worker's right knee injury and the accident. The information and medical evidence support a causal connection between the June 15, 2015 workplace injury and the worker's ongoing right knee difficulties diagnosed as a right medial meniscus tear.

The representative submitted that there was no other incident or condition between the June 15, 2015 accident and the time the physician queried a medial meniscus tear due to ongoing difficulties. That the symptoms and difficulties continued beyond the natural history of six to eight weeks for resolution of a strain injury further supports that the tear is responsible for the ongoing symptoms, which are related to the accident. The worker's representative submitted that in the worker's case, the medical evidence by MRI and operative findings confirm that a traumatic radial tear is related to the compensable injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits in relation to the June 15, 2015 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid as a result of his June 15, 2015 workplace accident. The panel is not able to make that finding.

Based on our review of all of the evidence on file, and as provided at the hearing and subsequently in response to requests from the panel, the panel is satisfied that the worker did not require ongoing medical aid or benefits in relation to the June 15, 2015 accident.

The panel notes that the worker first reported his knee injury to his family physician on August 6, 2015, stating that he "injured his right knee jumping off a truck." There is no reference at that time to this being a workplace injury, and the first indication of a workplace injury is in the physician's November 17, 2017 chart notes where it is stated "compensation claim."

At the hearing, the worker indicated that he might have seen his family physician prior to August 6, 2015. Following the hearing, chart notes were provided by the worker's family physician, at the panel's request. The chart notes show that the worker did see his family physician on June 24, 2015, nine days after the date of the accident, but there was no mention of the worker's knee or a knee injury at that time.

File information shows that in his initial contact with the adjudicator on February 21, 2018, the worker reported that he was "in a lot of pain" after he hurt his knee on June 15, 2015. The worker stated that "…there were times that his knee was in so much pain that he did cry in the warehouse when he was alone." He also indicated that there were times his knee "was too sore and he could barely walk." At the hearing, the worker stated that what was happening with his knee between June and August was "a lot of suffering."

In the panel's view, if the worker was experiencing such symptoms or difficulties as he described, it does not make sense that he would not have raised them with his physician or sought treatment from his physician for his knee when he saw him on June 24, 2015, or at any other time prior to August 6, 2015.

The panel notes that the worker further reported to the orthopedic surgeon on February 16, 2016, that he "suddenly had joint pain on the medial side associated with immediate swelling. The swelling has slowly resolved to the point now that it comes and goes." Again, if this was the case, the panel would have expected the worker to have raised such swelling with his physician when he saw him on June 24, 2015. The panel further notes that the worker's family physician reported in his chart notes from the August 6, 2015 visit, that there was no effusion, there was full range of motion and the joint was stable.

It was the worker's evidence, which he confirmed at the hearing, that he continued working his regular duties following his workplace accident. The worker stated at the hearing that he missed work between June and August, although he did not remember how many days' work he missed. He noted that there were also days when the supervisor would send him home, that "he sent me home a lot of times, too…on account of my knee, and that."

Attendance records which the employer provided after the hearing at the panel's request, however, do not support the worker's evidence in this regard. The records indicate that the worker had no missed days in June, and only one sick day and one day for an appointment in July 2015. The records further indicate that the worker worked his full days during those months. The panel is unable to find that the worker lost any time at work due to missed days or days being sent home as a result of his workplace accident.

Based on the foregoing, the panel is unable to find a causal connection between the June 15, 2015 workplace accident and the worker's ongoing right knee difficulties, including his medial meniscus tear. The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid as a result of his June 15, 2015 workplace accident. The worker is therefore not entitled to wage loss or medical aid benefits in relation to the June 15, 2015 accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of August, 2019