Decision #107/19 - 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 June 25, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker reported to the WCB on September 18, 2017 that he injured his left knee at work on August 9, 2017. The worker did not report a specific incident or accident that occurred, but noted that he believed the cause of his injury was from holding boards in place with his left leg and screwing them into place for eight hours a day for approximately two weeks. He further noted that after three or four days of this work, his knee started aching.
On August 23, 2017, the worker sought treatment for his left knee from his family physician. The treating physician diagnosed the worker with a left knee strain but did not note a description of how the injury occurred. An x-ray of the worker's left knee taken on the same date was normal.
At a follow-up appointment with his family physician on September 13, 2017, the worker reported that he still had pain and tenderness in his left knee. The physician referred the worker to a sports medicine specialist. The appointment with the sports medicine specialist took place on September 27, 2017. There, the worker reported "… an injury in which his knee got twisted while holding a deck." The sports medicine specialist opined that the worker may have a possible medial meniscus tear and referred the worker for an MRI to confirm the diagnosis.
The worker saw a physiotherapist for an initial assessment on September 28, 2017. He described injuring his left knee on August 9, 2017 while he was building a deck, he put repetitive strain on his knee, which got progressively worse for about one week. The physiotherapist diagnosed the worker with a left medial meniscal injury.
The worker discussed his claim with his WCB adjudicator on October 4, 2017. He confirmed that the mechanism of injury was on August 9, 2017 when his left knee started aching while he was holding deck boards in place with his left leg and screwing them in place. He reported that he was performing the same duties every day which required him to bend/squat/kneel and hold boards constantly. He advised the adjudicator that he had informed his employer about the injury approximately a week after it happened. The worker further advised that he was seen by a sports medicine specialist who indicated he had a 70% tear in his meniscus.
On October 12, 2017, a WCB medical advisor provided an opinion that an acute meniscus tear is usually caused by twisting on a loaded knee. However, in cases of age-related degeneration "…lesser mechanisms may result in acute tears but such episodes are typically associated with a specific incident or injury, associated acute pain, the development of a significant knee effusion, and immediate associated functional limitations."
The WCB medical advisor noted that the worker's file did not indicate any incidents. It was further noted that a specific diagnosis for the worker's left knee symptoms had not been made but the WCB medical advisor opined that a relationship between the worker's difficulties and his work duties could not be made based on the information on the file.
The WCB advised the worker on October 12, 2017 that his claim was not acceptable as a relationship between his diagnosis of a left medial meniscus tear and his employment activities on August 9, 2017 could not be established.
On December 16, 2017, the WCB received a copy of an MRI conducted on the worker's left knee on November 29, 2017. The MRI indicated that there "…is a complex tear involving the body and posterior horn of the medial meniscus." At the request of the worker's WCB adjudicator, the new medical information was reviewed by a WCB medical advisor on December 19, 2017 who opined that the MRI indicated a complex horizontal tear of the medial meniscus and such tears were usually considered to be degenerative, not as the result of an acute injury. On December 28, 2017, the worker was advised that the new medical information submitted did not change the WCB's earlier decision that his claim was not acceptable.
The worker requested reconsideration of the WCB's decision to Review Office on April 27, 2018. The worker noted that his treating sports medicine specialist supported that his injury occurred as a result of his job duties and that he was scheduled to have surgical repair of his left knee on May 7, 2018. Review Office returned the worker's file to his WCB adjudicator on April 27, 2018 to obtain a further medical report from the worker's treating sports medicine specialist.
The WCB received the report from the worker's sports medicine specialist on May 3, 2018. In the report, the treating sports medicine specialist noted that the MRI study confirmed the worker had a left knee medial meniscus tear. It was noted that the worker was symptomatic and that the "…frequency and severity of the pain had increased."
The sports medicine specialist opined that the mechanism of injury of a meniscus tear is usually twisting injury while axial loading and that the worker's description of how his injury occurred matched that description. The sports medicine specialist further advised that the worker had been referred to an orthopedic surgeon and that an arthroscopic surgery was being booked.
On May 9, 2018, the worker was advised that the information received from his sports medicine physician was reviewed but there was no change to the previous decisions that the complex horizontal medial meniscus tear was the result of a pre-existing degenerative change and his claim was not acceptable. The WCB received further medical reports including a copy of the operative report for the worker's left knee scope, partial medial meniscectomy and synovial trim and medial compartment chondroplasty performed on May 7, 2018. On May 30, 2018, the WCB once again advised the worker that there was no change to the earlier decisions and his claim was not acceptable.
The WCB received a report from the worker's orthopedic surgeon after a follow-up appointment with the worker on June 7, 2018. The treating orthopedic surgeon advised that the worker reported his symptoms came about when he was doing some decking work where he was doing a repetitive twisting motion with the knee. It was further noted that during the arthroscopic surgery "…he had extensive tearing of the medial meniscus and the degenerative changes that he had in the knee were relatively mild." On July 20, 2018, the worker and his representative were advised that the worker's file, including the new medical information received, had been reviewed but the decision still remained that his claim was not acceptable.
The worker's representative requested reconsideration of the WCB's decision to Review Office on July 31, 2018. The worker's representative provided that the worker's workplace injury should be accepted as the worker's job duties over a two-week period involved repetitive twisting of his left knee while kicking the boards into place then placing weight on his knee while screwing the boards into place. On September 20, 2018, Review Office determined that the worker's claim was not acceptable.
Review Office considered and placed weight on the medical evidence provided on the worker's file. Review Office noted that the worker was initially diagnosed with a left knee strain; however, after diagnostic testing it was determined the worker had a degenerative medial meniscus tear. It was noted that the worker did not initially report a specific incident or accident for his left knee injury, only that his job duties while using his left knee caused his symptoms. In a later medical report dated May 2018, the worker was described as injuring his knee while holding a deck and twisted his knee.
Further, Review Office noted the worker reported that the pain in his knee came on gradually, three or four days after he started working on the deck project. Review Office found that if the worker had suffered an injury while performing those duties, he would have felt the symptoms almost immediately and an injury such as a meniscal tear would have had an impact on his functional abilities. Review Office was not able to establish a connection between the worker's left knee difficulties and his job duties performed on or about August 9, 2017 and as such, the worker's claim was not acceptable.
The worker's representative filed an appeal with the Appeal Commission on December 4, 2018 and an oral hearing was held on June 25, 2019.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Worker's Compensation Act ("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 44.05, Arising Out of and in the Course of Employment, states, in part:
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 worker was represented by a worker advisor. In addition, the worker answered questions put to him by the worker advisor and from the panel.
At the beginning of August 2017, the worker was working on a job site constructing a large deck on a cottage. The particular task which the worker was doing was to place, hold and screw in deck boards. This required him to kick each board into place with his foot with a twisting motion on his left knee. The boards were long and heavy as they were made of composite materials. The deck installation required him to stand on the exposed joists while kicking the boards into place.
He would then kneel down and hold or pin the board with his knee while screwing the board in place. This continued on all day and the worker’s evidence was that he was doing this for 8 hours daily. He continued doing this every day for 2 to 3 weeks.
In support of his position, the worker also provided the panel with a video depicting the type of duties he was required to perform.
The worker gave evidence indicating that his knee began to be sore after the first 3 days. However, working as a contractor with physical tasks, he was accustomed to muscle aches during periods of intense labour. Therefore, he was not concerned about the pain at first, as he believed that it would subside as in the past. However, the pain worsened and the worker stated that he began to feel a "locking" in his knee when rising from the kneeling position. It was at that time that he then sought medical treatment.
The worker was originally diagnosed with a left knee sprain and an x-ray was ordered by his attending physician. The attending physician's progress notes dated September 13, 2017 indicate a tender left knee, swollen and with poor mobility. When conservative measures did not lead to an improvement of his symptoms, the worker was referred to a sports medicine specialist. The worker also attended physiotherapy, where he was diagnosed with a left medial meniscal injury and it was also noted in chart notes that there was swelling of the knee. At that point restrictions were given by the physiotherapist.
On the issue of pre-existing conditions, the worker's advisor submitted that there was evidence of mild degenerative changes starting in the worker's knee. The orthopedic surgeon noted mild grade 1-2 chondromalacia. It was submitted that the presence of pre-existing conditions does not shield workers from sustaining new acute injuries. Rather, such conditions heighten susceptibility for new injuries, and/or aggravations or enhancements. In this case, the worker had pre-existing deterioration and a pre-existing condition in his knee. It was submitted that the pre-existing conditions would equate to a lesser force being required to injury the meniscus.
In addition, when asked by the panel with regard to the written statement given by a co-worker regarding the worker twisting his leg awkwardly, the worker's evidence was that in addition to repetitive motion, he also had a moment where his leg twisted in such a manner causing him pain.
The employer was present at the hearing.
The employer's position can be summarized very briefly. In sum, the employer's evidence was that the worker was a very active staff member prior to this particular incident occurring. He had no mobility issues at all.
The employer's position was that the worker was affected at the time and, in particular, prior to this incident the worker was one of his hardest working employees. He never had any issues with his knee and had never heard him complain prior to this time. Indeed, up until the incident, the worker had no restrictions with respect to any aspect of his employment with the employer.
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. In order to do so, the panel must find that the worker's left knee injury was causally related to his work duties. The panel is able to make that finding.
The panel notes that an MRI was obtained which showed longitudinal horizontal tear of the medial meniscus and a meniscal flap. It was summarized by the radiologist as a complex tear involving the body and posterior horn. The treating sports medicine specialist provided the WCB with an opinion that the mechanism of injury for meniscus tear is a twisting injury with axial loading. It was submitted that the worker's described mechanism of injury could cause the complex tear.
The panel also notes the WCB medical advisor's October 12, 2017 opinion wherein he indicated:
An acute meniscus tear is typically associated with an acute episode of twisting on a loaded knee joint. In the presence of age-related meniscus degeneration, less mechanisms may result in acute tears…
In coming to its conclusion, the panel also relies on the June 7, 2018 report from the orthopedic surgeon which states the following:
....At the time of the scoping, he had extensive tearing of the medial meniscus and the degenerative changes that he had in the knee were relatively mild. Certainly the degenerative changes are pre-existing. The meniscal tears are compatible with the repetitive trauma that he subjected this knee to during the decking work. I believe he has a legitimate claim for the meniscus tear, its surgery and the expected 6 week recovery from it.
The panel also notes and accepts the video evidence provided by the worker as well as his description regarding the manner in which he was required to install the decking material while standing on the deck joists, and screwing them in place.
The panel accepts that the repetitive twisting motion of the worker's knee led to his suffering an injury. In addition, the panel accepts that worker's evidence that in addition to the repetitive twisting motion, at one point during the project he did slip and fall causing pain to his left knee. Finally, the panel accepts the employer's evidence with respect to the worker’s condition prior to and after this incident.
Taking into account all the evidence on the file, the panel accepts that, on a balance of probabilities, there is causal connection between the worker's left knee injury and his employment.
The panel therefore concludes that the worker's claim is acceptable.
C. Monnin, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
C. Monnin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of August, 2019